Hi all – “slightly puzzled” in the valleys, here.
Back in December 2005, a client who we had referred to a solicitor, pleaded guilty in crown court to four charges of obtaining benefit by dishonestly making false representations etc etc Section 111a SSA1992.
The LA and DWP dates differed due to the dates of claim (overall between April 1997 and Aug 2004), but he was sentenced for the period Aug 2000 – Aug 2004. The LA is still insisting that the period for the overpayment is April 1997 to May 2004. The earliest paper claim the LA can provide is a review form from July 2000.
The LA says (quote) “The overpayment of housing and council tax benefit is a separate issue to any criminal proceedings that have been brought against the claimant”. The claimant received 18 months probation which was curtailed after 10 months at the request of the probation service, and is paying back at £40 a month. He was sentenced on the sum of £10,714. The LA is seeking £18,022 which will mean he will be 98 years old before he finishes paying.
Previous posts indicated that we should refer to a solicitor for the criminal case and then resurrect the HB/CTB appeal once that is over. However, the fact that the LA states that the overpayment is a “separate issue” would indicate “cake” and “eat it” is being tried.
The HB/CTB appeal (made in 2005) is still somewhere in the Revs and Bens pipeline.
Am drafting a letter to the LA seeking copies of claims etc for the period April 1997 – July 2000, which we don’t believe they can produce.
As we’d handed this over to the Solicitor, the first we knew of the difficulty was when the client’s probation officer rang to say that in compiling the case to curtail the probation period, the LA’s recovery figure differed from the figure on the pre-sentence report and the court papers (they had asked for a breakdown of how much was outstanding and confirmation that the agreed repayments were being adhered to).
Thanks for getting this far.
Comments read with interest.
Robin.

I am afraid that I have to agree with the LA involved that the amount of any recoverable Housing Benefit overpayment is not necessarily the same amount as the amount of Housing Benefit that can be proved in court to be a result of an offence of making false representations.

The main reason being the different standards of proof required.

It is quite possible for a tribunal to find that an overpayment is recoverable, but a court to find that there was no offence committed. To be recoverable, an overpayment of Housing Benefit only has to not be due to an official error (or even due to official error but the claimant could have known they were being overpaid).

Did your client lodge an appeal against the overpayment when the decision was made?

If not, are you still in the 13 month time limit?

Thanks for the reply - an appeal was lodged in 2005 and is still "in abeyance". Resurrection required, then.
Cheers

Jmembery is quite right. I presume fraud was proved only to the 2000 date due to the claim forms available to prove the false reps. Often the LA will hold docs showing that for example the claimant had been working/holding capital etc before this date so able to assess entitlement but without the claim forms unable to prove he did not notify the LA of this income/capital therefore opting for a later date to which they can prove fraud.

I personally think that recovery over that period of time is insane, however perhaps your client can look at it as an interest free loan which unfortunately he has already spent! £40 monthly is a very low recovery rate for a Fraud OP so he should perhap count himself fortunate (I'm ready to be put in my place!)

Thanks both - the only information the LA could hold for the period they can't produce the claims for is in their own pension files as the monies he didn't declare were his LA pension (because he assumed that he didn't need to tell the LA that the LA was paying him).
Cheers again for help.

At Tribunal, the LA will have to prove that there has been an overpayment. They would then have to at least demonstrate that they can identify the cause of the overpayment to show it was not LA error. From what you say in your post, they may find that hard if they no longer have any paperwork.

Surely, to support an O/P case, the LA has to produce evidence showing that the client has misrepresented by omitting to declare a relevant fact during the period under investigation?

I ask, because I know of a similar case - alleged O/P of I/S and consequently HB/CTB for period 1997 to 2002 - I/S could pursue as they could produce evidence for entire period, but the LA had changed computer systems in 2000 and for technical reasons did not still have records prior to then, and therefore no evidence of what was or wasn't declared from 1997 to 2000 - therefore they could only pursue O/P for period 2000/2002.

"...the LA has to produce evidence..."

I'm deliberately playing devil's advocate here .

Evidence can be merely verbal. As Derek Stainsby has pointed out on numerous occasions, English law does not (necessarily) require that there need be corroboration.

However, a Tribunal would almost certainly reject such an approach by an LA. But, the LA won't necessarily need to produce the claim forms, or documentation. Destruction of documents is not, in itself, fatal. It may be quite possible to rely on archived computer records. The crux will be the nature & quality of the evidence and its credibility. And with the standard of proof being "only" the balance of probabilities, computer records may well be sufficient.

Regards

The burden is on the LA to prove the amount of the overpayments but destruction of documents will not be fatal to its case.

It was held in R(IS)11/92 that:

1. the missing documents relating to the decisions to be reviewed were not destroyed with anyimproper motive (para. 26);

2. there is a clear distinction to be drawn between the deliberate destruction of documents with the intention of destroying evidence and deliberate destruction where there is no such intention.
Adverse presumptions can only be drawn where the documents were destroyed with the intention of destroying evidence (in this respect The Ophelia is still good law); otherwise the only detriment
suffered by the destroying party is a loss of corroboration that the documents might have afforded him (para. 30 and appendix 3);

3. the suggestion by the Commissioner in the unreported decision CSB/1288/1985 that the principle applied in The Ophelia could apply to the routine destruction of documents which it was impracticable to retain, was erroneous (para. 36);

4. in the SS jurisdiction no presumptions as to the contents of documents can be drawn where the Department has routinely destroyed them with the intention of clearing storage space or because
there appears to be no point in retaining such documents (para. 38 and appendix 3);

5. adjudicating authorities should take account of all available evidence, including secondary evidence, and decide on the balance of probabilities what the original document might have contained. There may be cases where it is not possible to reconstruct the contents of the missing documents, and this may mean that grounds for review cannot be established (paras. 38,41 and 42).

The Tribunal will have to come to a decision based on what evidence is still available on the balance of probabilities. If the probabilities are evenly balance, or crucial evidence has been destoyed and cannot credibly be re-constructed, it will have to decide against the Council on that issue

Dont forget that every decision on every renewal claim or uprating has to be validly revised or superseded before there can be any overpayment (see for example CSIA/45/1990; CSIS/653/2003.)

This means that the LA at a minimum ought to be able to produce all the notifications from the date of claim to the end of the alleged overpayment period for the Tribunal.

They should also be able to produce all the renewal claim forms and intervention documents

If an LA is physically unable to produce copies of notifications (quite possible where older systems are concerned), it should normally be sufficient if the LA can produce credible evidence that such notifications were in fact made (e.g. computer records).

A classic extract from CH/2349/2002 by Cmmr Jacobs is pasted below (I particularly like the reference to the detective novel):

---------
6. I commented in CH/4943/2001, paragraph 11 that 'Local authorities should always include a copy of the decision under appeal in the submission to the appeal tribunal.’

I do not know what the capabilities are of the computer system used by the local authority in this case. It would be surprising if it was impossible to produce a copy of a decision, even one generated by the computer software. Even if an actual decision cannot be produced, the documents that are generated should be sufficient to show that the review took place.

7. The observations refer to the burden of proof and the balance of probabilities. I do not consider that probabilities have anything to do with whether or not a review took place. Either it did or it did not. The evidence should be capable of proof one way or the other without reference to probabilities.

8. The direction on this issue, given at the first hearing, resulted in a submission from the local authority consisting of a witness statement of 2½ pages with 11 Appendices. The statement constructs an audit trail of the computer system and records. It goes into detail of faults reported during the relevant period. The representative in her observations on the appeal now refers to the possibility of faults existing that were not reported or not even known. This argument has got out of hand. It now reads more like a detective novel than submissions in a legal proceeding. The simple truth is this. The evidence in this case shows clearly that a review took place. No one with any sense would doubt it. Local authorities should not be put, as a matter of general practice, to the extensive trouble that the tribunal’s direction imposed in this case. It is only in the most exceptional case that the evidence will be such as to justify, let alone require, the sort of exercise that the local authority undertook. To be fair to the tribunal, I am not sure that it intended so extensive a response as the local authority provided.

Thanks to all for the detailed responses.

Supposing the LA wishes to seek recovery “relying on archived computer records. The crux will be the nature & quality of the evidence and its credibility. And with the standard of proof being "only" the balance of probabilities, computer records may well be sufficient,” we could also argue that the LA held computer records at the time of the original claim indicating that the LA was paying the claimant an occupational pension ?

Or was that a pig which just flew past the window ?

Robin.