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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Overpayment - client took plea bargain at Court, Chair advising cannot appeal O/P now as that would be lying and said they would have to report them

glasgow-99
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Apologies if there have already been threads regarding this.  I have looked at a few that touch on this subject, but not this particular situation and I am interested to know if anyone else has come across this.
Client had a DLA Overpayment, on looking at the papers we saw several grounds for appeal including technical and also lot of evidence that client qualified for DLA high mob despite also working, due to severe discomfort etc.  Case went to court before the appeal case was heard and client was persuaded by his solicitor to take a plea bargain. The civil O/P case still had the full O/P though so client continued this appeal, however, when our rep went to the appeal with the client, the Chair warned them to ‘have a serious chat’ about what they wanted to do stating that because the client made a plea bargain and effectively pled guilty he could not now say that he was virtually unable to walk at his appeal as that would mean he lied in court and the Chair would be duty bound to report the client to the Procurator Fiscal for lying.  The client was extremely spooked by this and insisted on withdrawing.  We tried to contact the soliitor prior to the appeal to ascertain further details of the plea bargain, e,g was it for the whole period, but he was always too busy to get back to us.  The client himself knew very little and said that the solicitor basically dealt with it all. 
I have seen threads discussing the fact that pleading one thing at court and then another at Appeal is never going to look good, but not specifically a Chair threatening to report a client.  Could a case go back to court if this happened?  What are the risks?  Presumably most tribunals in this situation go ahead with the Appeal, but take into account the fact that the client took a plea bargain and may be less likely to find in their favour because of this.  Not hearing the appeal at all and threatening the client like this seems to me to go against justice, e.g the client may have pled to only part of the period under question e.g O/P is 2008-2015 and client admits to improving from 2012.  There is still then the potential to argue at the Appeal that 2008 to 2012 should not be recovered by the DWP and the appeal could consider this if they don’t feel they can look at the period dealt with at court.  The Chair involved is usually very good and fair so I am thinking he must have had good reason to act like this.  I did try to get an informal chat about these sort of cases with the Chair, but apparently we can only ask this of specific cases and the client does not want to pursue it due to fear of repercussions. 
Any comments, experiences, muses etc greatly welcome!

[ Edited: 8 Jul 2015 at 11:39 am by glasgow-99 ]
HB Anorak
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It is fairly well established that a claimant cannot “resile” from factual admissions made in a criminal case when his/her Tribunal appeal is heard later.  See for example this recent one involving DLA:

http://www.rightsnet.org.uk/welfare-rights/caselaw/item/criminal-conviction-for-failing-to-report-changes-to-care-and-mobility-need

But that doesn’t mean that the claimant’s appeal is bound to fail: it depends what you admitted and how that affects your entitlement under the rules of the scheme.  It is possible to commit an offence by dishonestly failing to disclose something you think will affect your entitlement and then it turns out it wouldn’t have done so after all.

So the Tribunal should have proceeded on the basis that whatever factual admissions were made in the plea bargain were true and then dealt with the appeal in the normal way.

glasgow-99
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Hi thanks for that and I had read that Commissioners Decision, I think our problem was compounded by the fact that the client didnt really know what had exactly been pled on his behalf and we had been unable to get hold of the solicitor.  Heads up for us to be more tenacious about this in future.  Also seen a lot of threads saying try to get Appeal heard before the court case, but somoene else also warned that what a client says in an Appeal could be used against them in a court case?
It would be good to have a Scottish Legal opinion on the reporting lying issue though as we need this for future clients in case it happens again.  Basically our client was terrified it was a risk of a prison sentence at that point and just wanted to get out of there.  Not sure if any good Scottish Crimminal Solicitors hang around on here?  :)

thanks again!

[ Edited: 23 Jul 2015 at 09:16 am by glasgow-99 ]