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8 mins Video Surveillance removes DLA mobility.
I have been dealing with similar cases of very limited videoing that DWP allege amounts to change of circumstances.
Per Moyna- clearly the 8 mins is a snapshot, and claimant only walks a short distance per day, especially if this accords with his claim form, then it clearly isn’t a change of circumstances!
However, you might want to look up the Criminal Procedures & Investigations Act 1996- whilst this deals mainly with the handling of documents etc it also refers to evidence that was gathered with a view to prosecution, even if no prosecution actually occurs.
S23 onwards is relevant - and this applies to DWP fraud officers as well as Policemen. s23 establishes a code for investigators
http://www.xact.org.uk/information/downloads/CPIA/Disclosure_code_of_practice.pdf
see para3.5 - which imposes a duty to follow all reasonable lines of enquiry including negative ones.
s26 CPIA specifically mentions that a breach of the code can be admissible in evidence including Tribunals. Generally speaking if police/fraud officers etc do not apply these codes then the evidence can be challenged and potentially excluded. For example under s76 Police & Criminal Evidence Act 1984, code of practice in respect of theconduct of interviews/searches/arrest etc all must be complied with or such evidence can be rendered inadmissible.
Surveillance evidence outside s23 code could also be argued as inadmissible or certainly attract little or no weight.
http://www.dwp.gov.uk/docs/fraud-guide-dla-aa-ca.pdf
this is the DWP Fraud guide - see para 14 surveillance should be conducted at various times, so morning videos in the same place may well be in breach of these guidelines as well.
I would suggest that if you can not obtain a copy of the dvd - ask Tribunal for Directions, ie ordering DWP to produce the evidence that they seek to rely on within eg 14 days, and to confirm in writing that there are no other unedited versions of the dvd etc. Also ask for the interview tape, (could also be via Direction) listen to it, and be prepared to argue exclusion if outside of PACE 1984 as mentioned above.
Check also that the surveillance was properly authorised per Regulation of Investigatory Powers Act 2000 (under the relevant Code of practice for that). Tribunal should exclude all surveillance (video and other) if in breach of code.
If, as may be likely, a criminal charge follows, make sure that you contact any Defence Solicitor and get copies, or at least a list of documents which comprise ‘advanced disclosure’ (ie documents etc to be used in the case,) and also get copies or a list of ‘unused documents’ these might comprise statements from 3rd parties which favour the defence case rather than the prosecution, and can be very enlightening! Cross Reference the Appeal Bundle with the Prosecution bundle - these may not necessarily contain the same information and liaision with any Defence solictor is very important.
Hope this helps.
Lid26
Thank you for this I feel sure it will assist..
Excellent references. Thanks.
Is there something specific within or elsewhere that says a tribunal (as opposed say to a court) should explicitly exclude evidence?
The reason I ask is that the approach of tribunals in recent years has been very much towards admitting all evidence but weighing it rather than excluding. There is also the de-skilling of clerks, which as far as TS is concerned means that the most experienced ones are often out in the field and the office is populated by people who appear unable to enact directions such as taking things out of appeal papers etc.
The Tribunal have an inherent jurisdiction to exclude evidence under their rules.
However, the Criminal Law provides various safeguards to protect suspects,which is relevant in eg DLA fraud cases where the DWP seek to rely on surveillance or admissions. As outlined above these issues are safeguarded by Codes of Practice that need to be followed - and the Codes themselves are admissible in any proceedings criminal OR civil. This is effectively stating that the relevant Codes can not be ignored.
Further, Human Rights Law provides various rights, including that of a fair trial, right to quiet family life etc (which is impinged if surveillance takes place hence the need to protect the suspect.) It is therefore likely that any breach of Codes will invoke an HR issue.
In respect of surveillance - look at
CDLA/1838/2010 (DG v Sec State for Work & Pensions [2011] UKUT 336 (AAC)
Judge Wikely at paras 45, 46 states that Tribunals must consider whether surveillance is authorised properly.
In a recent case I was dealing with, the client was interviewed under caution, but he has clear mental health issues (which must have been known to DWP as they had his claim form at the interview and referred to the form- which clearly explained client’s mental health!) The codes of practice ( under Police & Criminal Evidence Act 1984) stipulate that vulnerable suspects, which includes those with mental health problems MUST be accompanied by ‘an appropriate adult’ ie someone who can ensure that the suspect is not being overwhelmed and led into making inappropriate admissions etc. I argued that due to the breach this was fundamental and the interview record and all references to it should be excluded. The Tribunal agreed. Hence client’s so-called admissions are now excluded in entirety. However, I am still awaiting the amended bundle from DWP as directed by the Tribunal!
Lid26
here’s a link to CDLA/1838/2010 -
To follow on from Lid26’s comments its is important when submission writing to forensically break down the interview under caution to highlight the mistakes made by interviewing officers.
The interviewing officers, although supposedly trained often know little about the complexities of social security law and will say things which are totally incorrect in order to get an admission.
Often the admissions are incorrect and as a result of (i) leading questions, (ii) oppressive style interviews and (iii) wrong interpretations of the law.
Having attended many interview under cautions with clients I have seen the shocking questions that have been asked and the blatant mistakes made.
A judge will appreciate a short summary of the legal errors made in an interview under caution and this will inevitably have an impact on the credibility of the DWP evidence.
Hi Lid26
I agree with much of what you say but with a few caveats. Certainly the COP’s have statutory force as they are authorized under statute (PACE) and a breach of Code C by not getting an appropriate adult where required could certainly lead to tainted evidence which could compromise the right to a fair trial under the HRA. That, I would certainly ask to be excluded. However, I agree with Mike that the technical rules of evidence that apply in the courts do not, generally, apply to tribunals. And, there is authority for this (CDLA/2014/2004). Tribunals have a power to exclude evidence but will not do so routinely. Tribunals have been very slow to exclude evidence when I’ve requested it but have agreed to give it little or no probative value.
You mention s76 of PACE. That concerns confessions. Was that a typo and do you mean s78 where it states that “in any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”. As usual each case will turn on its own facts but it would be unusual for it to be used for minor infractions which would probably not “have such an adverse effect on the fairness of the proceedings”.
And, yes, in CDLA/1838/2010 Judge Wikely does say that tribunals should deal with the issue of proper authorization of surveillance evidence. However, he also goes on to say “it may well be, of course, that the surveillance in question had been properly authorised and the relevant paperwork could have been produced. Even if no such proper authorisation was in place, the video evidence was not necessarily inadmissible, although the weight to be attached to it might well be less”. Again, the issue of weight seems to dominate the issue of admissibility. It will obviously be down to how strongly individual judges feel about such matters and their views on civil liberties.
However, I would agree with you on this about requesting its exclusion. My view on the unauthorized evidence point would be that in such a case the DWP officers have acted in breach of statutory authority and have thus abused their public office. Evidence produced by such a breach is so tainted by unlawfulness that it should be excluded on grounds of public policy, i.e. the protection of the citizen from arbitrary and unlawful use of state power.
The concerns raised by Nevip are valid.
I mentioned the existence of the various Codes of Practice as they should provide the various safeguards for our clients who are subjected to the might of DWP investigations.
(I referred to s76 - which applies to confessions mainly in the Criminal Courts, but I actually meant s66 PACE which is the provision establisihing the relevant detention and interviewing codes.) s78 provides an additional safeguard for unfair events that don’t necessarily otherwise fall within any of the particular PACE codes.)
The safeguards provided in the assorted legislation are to protect individuals, but Nevip is right that the Tribunals do not seem to take a robust enough view to exclude evidence. Nevertheless, I think it is important where breaches of codes etc have occurred to ask for exclusion, as hopefully little by little this will educate Tribunals into thinking about how evidence is obtained. Unfortunately the Tribunals’ inquisatorial ethos is not geared up to think along the lines of the strict rules of evidence that apply rigidly in eg Criminal Courts. This isn’t necessarily all bad, because both the client, and where needed myself as representative can give evidence, and no formal production of documents is needed, which is a lot easier, and allows for much more evidence to be adduced. But…the downside is the rather woolly approach some Tribunals take in respect of exclusion.
Case management hearings/directions may facilitate exclusion of evidence, and should be encouraged. I feel that whilst representatives do largely understand benefit law, I am not convinced that they are all aware of the complexities of Codes of Practice that are essentially part of the Criminal framework, and possibly outside mainstream benefits training.
However, if ‘tainted’ evidence is not excluded, for example unlawful surveillance (conducted without proper legal authority, ) there are specific remedies under the relevant legislation for complaints/compensation. Furthermore in supersession cases where it is for DWP to prove the validity of a supersession it is for them to adduce the evidence. It is entirely likely that the DWP case could hinge solely on eg surveillance evidence, perhaps where no admissions are made in interview under caution. If such surveillance evidence is excluded - then DWP has NO evidence upon which to prove the case, and DWP should fail to discharge their burden of proof, and the supersession should surely not be upheld? Conversely, if the Tribunal uphold a supersession because they refuse to exclude tainted evidence, I think there would be a strong appeal to UT, which could also include Human Rights’ arguments as well.
Basically representatives need to be alert to potential breaches, and be prepared to argue them robustly where necessary.
Lid26
Surely, if the video evidence is excluded, the interview should also be excluded because some or most of it is based on the video evidence?
No, because new evidence might emerge at the interview which would need to dealt with on its own merits.
Regarding exclusion of interview per last 2 replies -
If unlawful surveillance evidence is referred to in an interview, it should be excluded.
(This is where s78 PACE might apply.)
That might mean that the whole of the interview is inadmissible.
Or, if other evidence is discussed, for example a document, then there is no reason why the interview could not be deemed partially inadmissible. (But that’s really for DWP to argue - claimant (via representative) could ask for the entire interview to be excluded, if Tribunal agree, so be it, if not representative could make a magnanimous gesture to allow an agreed edited version!) (But it might be appropriate to re-type the transcript, and definitely don’t play the tape at the hearing!)
Lid26
Well…
I wish this thread had existed 10 months ago before I had to learn all that stuff the hard way, so whilst I have s*d all to add I just wanted to say that arguing breach of PACE, oppression, lack of surveillance authorisation (or statements from third parties to verify the CCTV evidence given to DWP), and picking apart the DWP/fraud officer evidence and statements does work.
I would also agree with nevip that I struggled to get the IUC ruled inadmissable however it was given little weight due to PACE breaches and my recent case/client was successful in all 8 LTAHAW & overpayment appeals on the grounds that the DWP had not discharged their burden of proof.
Oh and they also withheld witness statements that did not support their case until I made a direction request.
Was a very long day though!
I remember one case I did and when I read the IUC transcript I nearly fell off my chair. I couldn’t believe the gift horse I’d just been given. It was a DLA appeal against the removal of his award. The guy had had several toes removed and was getting HR Mob’. He was doing a few hours a week wiping down tables in his local pub, doing little bits and sitting for periods in between. The DWP alleged that he hadn’t disclosed any of this and went for him. Interestingly enough they decided not to pursue him for an overpayment recovery. I guess their hearts weren’t really in it. My delight at the hearing was pointing out to the chair that on page one of the IUC the interviewing officer plainly stated that the claimant had told the Department about it from the very beginning. So, his honesty wasn’t to be impugned. Award swiftly re-instated. The PO even looked embarrassed.
Hopefully the OP will have very much gotten the idea by now that these things are relatively easy to rip to shreds whether it’s the video; the IUC or the transcript of same. Nice to have a thoroughly positive thread in the current climate.
nevip has just reminded me of a case I had where DWP turned up on a Sunday morning to do an IUC at the claimants house!!! She let them in and started the interview. He came home and unceremoniously kicked them out. As if that weren’t bad enough they suspended benefit entitlement by the remarkable process of ripping up her IB book in front of her.
Was allegedly caught doing work in a relatives shop. Sold butties she’d made to a DWP officer. They genuinely thought they had her bang to rights. Fit for work innit! Relative invited her there to get her out of the house and lift her depression by saying she thought she had a shoplifting issue but couldn’t always check it from behind the counter. Clt. sat there all day making friends but might help out over lunch if they were busy.
Took 2 tribunals and the Commissioner to do it but I argued and won on the work being done as “de minimis” i.e. she absolutely wasn’t denying what she did but it was no more than she would have done at lunchtime had she been languishing at home with her growing depression and riddled with arthritis.
Mysteriously the IUC transcript was, er, somewhat sketchy and redacted in a manner this government would be proud of. It was essentially half a page scribbled by a child. There was no mention of ripping up the benefit book and, after we lodged a formal complaint about that, they grudgingly apologised for having an over-inflated sense of their own power and being bullying drama queens. That’s not quite how they put it :) and that took 2 or 3 goes too. Initially they had the nerve to defend tearing up the payment book as being entirely approporiate.
The DM in his submission states that on a certain date video surveillance was obtained, which was 19 minutes long. The video surveillance put to the tribunal only amounted to 6 minutes. In the surveillance log for the same day it reports that there were no sightings of my client nor his car???????
Also on another day it reports that some of the surveillance has been disclosed.
Before the IUC, the FOs told his solicitor that they had clear evidence of him using the gym. They questioned him about the gym but have never disclosed the video evidence. They say on review it is not my client. There is no way my client could use the gym because of his disabilities and i know him well. i have had him as a client for over 25 years. Although the DWP now admit it wasn’t him, they allege it was someone he lent his pass to which of course is incredible but casts doubt on his character.