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Confiscation orders and overpayment recovery
Forgive me if this has been posted before - if so could someone kindly refer me to the thread?
Situation is - overpayment of over£130,000, have got Tribunal deferred until after criminal trial. Client now convicted of fraudulent applications/ declarations, got suspended sentance due to health. Prosecution are going for a confiscation order due to proceeds of crime.
Should I ask for overpayment Tribunal to be deferred further until confiscation order business settled and then ask for overpayment to be reduced due to any amount repayable through the order?
Is it worth trying to defend the overpayment anyway given client now convicted on higher burden of proof?
Many thanks!
Someone will probably dig out the link to a very long thread in which the Wearing case features. It’s a bit late to give this advice now for your client, but I think most people would say that if one set of proceedings is to be delayed pending the outcome of the other in cases like this it is the criminal case you want to get adjourned and the benefit appeal expedited.
A criminal conviction means that certain facts have been established to a high standard of proof and a Tribunal would be bound to accept those facts as fait accompli. Whether or not those facts mean the claimant is not entitled to benefit is a separate question and one that is notoriously not within the competence of the criminal court. That was what went wrong in Wearing: she lost her house to a POCA confiscation and the Tribunal finally decided she would have been entitled to the benefit anyway. She had dishonestly misrepresented the facts in the mistaken belief that the truth would have meant she didn’t qualify, but she was wrong. If a Tribunal had established that at an early stage then:
- DWP might not have bothered to prosecute, or
- At the very least it would have had major implications for sentencing and the prospects of confiscation: a slap on the wrist instead of a huge financial penalty
I am assuming that you feel the appeal is worth pursuing on its merits and that your client does not have a hopeless case. If so I think the appeal should be heard a.s.a.p. and it’s a shame it wasn’t heard before the criminal case
I would add that from our experience some solicitors advising clients on the criminal proceeding have no undertanding of the importance of also challenging the benefit and overpayment decision or requesting the court case is delayed until the benefit appeals have been heard.
A further issue can be that even if the prosecution does not proceed, is still in process or fails it is then to late to challenge the benefits decisions because the absolute time limit has passed.
Off the top of my head I think the whole amount of the overpayment is still recoverable under statute, providing tribunal finds failure to disclose/misrepresentation. Assets under POCA, I presume, go to the treasury and benefit still paid that would not have been paid, from DWP budget, is still recoverable under s71 of the Admin Act. If whole amount is still recoverable ask for discretion to be exercised as no loss to the public purse for the amount seized under POCA.
Many thanks for the helpful replies.
Just wanted to clarify - I suggested that the overpayment appeal be put off until after the criminal trial, subject to what the Judge thought about it, because the defence and prosecution were going to agree a forensic accountants report for the criminal trial which would have been obviously useful for the overpayment appeal. I am well aware that it is probably best to have the overpayment issue decided first, but in some cases this just wont be practical, and this was one of them.
The appellant had 21 bank accounts, with money being transferred between all of them. The financial evidence in the appeal bundles was simply mind blurring.
The Judge at the hearing where the overpayment issue was adjourned made a direction that the Tribunal sit with a financial expert and that one day be allowed for reading the papers, one day for the hearing and one day to make the decision.
This is the kind of case that we all dread, given the pressure on our resources. I would have had to taken a week off to deal with this one case alone, so frankly having the criminal trial heard first made sense in this particular case - it may not do so in others. Just saying, it all depends!
And, in terms of defending an overpayment appeal I guess the first and most obvious question ( without going into the minutiae of all the individual transactions ) is; why would a person on income support and then pension credit have 21 bank accounts, and move money between all of them? Answers on a postcard please…...