Administrative penalty

I’ve just spent an interesting 15 minutes trawling Rightsnet forum posts with regard to Adpens and overpayments (or “legalised extortion” as some members have named it) and I’ve not really found an answer to my question. So, a rare chance to start a new thread ahead of doing some research of my own.

Clt. has significant O/ps of IS, HB and CTR on basis that capital >£16k. O/ps deemed recoverable. Parent initiates appeal on IS (possibly not others) but no record of this other than her own notes which may not be contemporaneous. Followed it up. No response but no record of either and gave up on it. Long outside the 13 months. Clt. also accepted an Admin. penalty for all 3 O/ps on basis there was a strong likelihood of prosecution.

I’ve a written transcript of the IUC. There’s the usual range of potential issues with this (PACE, stuff off tape etc.) but the key thing is that there’s not a shred of evidence of a recoverable overpayment let alone grounds for prosecution. There’s no sustainable argument the claimant knew the material fact.

In light of this I’ve asked for all 3 benefits to exercise their discretion not to recover (and consider longer term whether they should be repaying what they have taken - bet that goes down well!) and await responses on that with interest. The issue has now been raised of the Adpen. JC+ view is that it was signed voluntarily. There was (at the time) a 28 day period to change your mind and, once that’s over, it stays in place.

If we could appeal the recoverability or resurrect those appeals then I think it would be easy enough (or easier) to lapse the Adpen as no longer applicable. However, when the only option is discretion to not recover, how do I then argue my way out of the Adpen? If discretion is exercised to not recover then the recoverability decision still exists albeit that I maintain there’s no chance of a prosecution let alone a successful one.

Ultimately some of this may need to be pursued via formal complaints and the relevant Ombudsbod, however, I’m not sure what my options are with the Adpen.

Appreciate it’s Friday but all ideas welcome.

Bump!!!

Think it may have been me (under my old user name) who used the phrase ‘legalised extortion’. :)

If it were me I’d direct the majority of my efforts at trying to convince HMC&TS; that valid, in-time appeals were made by the client but not processed by the adjudicating authorities and that they should now go ahead. But I’m sure you’re exploring that possibility and that it may turn out to be a dead end. So….

1. the DWP’s fraud prosecution policy (can email a copy if you don’t have it) stipulates “Unlike cautions no admission of guilt is required from the customer before offering an administrative penalty, although there is a statutory requirement for investigators to ensure that there are grounds for instituting criminal proceedings for an offence relating to the overpayment.”

I cannot see you succeeding with a request that the DWP exercise its discretion not to recover unless you can show that, had the overpayment decisions gone to appeal, there was no real prospect of the FtT upholding the SoS’s decisions. You seem pretty confident you can do that. If you do, then any ‘grounds for instituting criminal proceedings’ surely fall away?

2. It is s.115A (1)(b) that provides that the SoS must ensure there are grounds for prosecution before an adpen can be offered. Maybe try arguing that no such grounds were ever established and that the adpen is consequently invalid? Threat to pursue via application for money judgement at County Court if the DWP doesn’t then cave…..

I am as confident as I can be that there’s no recoverable o/p here at all. The IUC shows clear evidence the claimant did not know the material fact i.e. that they had excess capital. They made repeated attempts to challenge this but the claimant was consistent and clear in their answers.

Not a hope of proving there was a valid appeal made at the time I suspect though.

My attempt to get them to use their discretion differently is an interim appeal to their better nature whilst I gather the various decision notices to enable me to reopen this up via supersession etc.