Client iuc 4x. No decision rec'd by him (altho' LA say it's been sent - £4k going back to 1997). LA have said they'll consider a formal caution due to his ill health and now want to interview him within the next couple of days re same. I've told them I need to see the decision before I can adv client further. Even before we have the decision I know client will want to appeal it (and from past conversations he has grounds). Where does he stand with the appeal and the caution? If he appeals will they stand by their consideration of an caution or would it encourage them to prosecute ?

An administrative penalty or a caution can only be issued if the claimant accepts that he has committed an offence, so if your client accepts the caution it would be difficult to win an appeal. The local authority still have the discretion not to prosecute in any case. You should argue that it would not be in the council tax payers interest to issue criminal proceedings bearing in mind the cost of taking those procedings and the ill health of your client. It might be worthwhile pointing out to the fraud squad your grounds for appeal and the flaws in their case which leads you to believe that the decision is wrong.
If they are going to interview him again and you are going to represent him as a legal adviser then you have the right to advance disclosure prior to the interview. You should then have time to consider the disclosure and put it to yopur client. You should get to see the decision. If the interviewing officers refuse, then make it clear by stating in the IUC that you have been denied that right. If the matter then goes to court doubt can be cast on their evidence for not sticking to the rules. (any solicitor worth his/her salt would have a field day.)

Thanks for your comments Stephen. I've already told them I want full disclosure to consider prior to my client's interview. I'll see what they've got and have now written to adv them my client won't be making any decision until we've seen all the evidence.

I feel I'm always on this site at the moment!!

Hi, just a couple of points - Stephen - Adpens are different from cautions. An adpen can be offered even if the customer has not admitted any offence.
The other thing I would be concerned at is when you say that the LA are to offer a caution (rather than a prosecution I assume) because of ill health. This seems unusual because LA's (and DWP) can only offer a caution where the case, if the caution was not accepted by the customer, will be prosecuted. A caution or an Adpen are NOT to be used in cases where an LA would not prosecute in any case. So in your example, if the LA decide that customer is too ill to be prosecuted then they CAN NOT offer a caution. The reason for this is that if your customer refused the caution, then they should take him to court but they have already made the decision not to take him to court because of ill health !

Hope that explains it.

Ian, LA say sufficent evidence to prosecute but will consider formal caution due to ill health. I must admit I also thought a caution meant an adpen. I've never come across it before and neither have our criminal solicitors.

Client not admitted any offence. He has an occupational pension he failed to declare but there was never any intention to defraud.
I can't advise him further until I've seen full disclosures.

Where can I get hold of this info as it's obviously very important I get it right.

Many thanks
Sue

Hi Sue,

Still dont understand this offering a caution becasue of ill health. The size of the overpayment, would in my opinion, mean that customer would normally be prosecuted. If they have decided not to prosecute then they simply cannot offer a caution full stop. You can only offer a sanction (caution or Adpen) when you would normally prosecute but the size of the overpayment dictates that a sanction would be the better form of disposal. Every council is different but the amounts would be in the LA's prosecution Policy and I seriously doubt £4000 is suitable for a caution only. The basic principle of offering caution/adpens is that they are offered at the 'lower end' of the scale so that councils dont take up court time and prosecute people for £50 overpayments. What would happen if the customer refused the offer - our guidelines say we must prosecute anyone who refuses an offer, yet the LA have already taken the decision that they will not prosecute! It does not make sense to me, and can categorically say that when we decide not to prosecute because of ill health then we take no sanction action at all. All you need to do is refuse the caution and there where do the council go??? unless they go back on their word and say we now will prosecute!

It is a seperate issue about admitting the offence, although you say he has not admitted the offence, you would need to see a transcript of the IUC to confirm this. If he failed to inform about his Occ pen and admitted failing to inform, then that is sometimes treated as admitting the offence, there does not necessarily have to be any intention.
What info are you after - disclosure of the relevant facts? You can certainly ask for disclosure before the IUC but afterwards, to be honest, I do not know. It would seem reasonable for the LA to provide disclosure. For the LA's prosecution policy most LA's have theirs, even if it is a shortened version, on the internet.

Hi Ian,

The monetary value should not be the only issue to consider when choosing which sanction to impose. I won a JR against the DWP on that point when this system started. (case was settled after leave was granted), So in this case the LA are quite correct to consider the ill health of the claimant when choosing a sanction.

(All this might be pointless if they've made the wrong decision and there's no overpayment after all.)

Stephen, you are quite correct, monetary value should not be the ONLY issue. However, in this case, if the LA have said that they will not prosecute, then they cannot offer an alternative at all, they must close the case.

Quite right.