I have 2 separate cases in which a client has been investigated for fraud following allegations from members of the public. In each case there were no charges but an EMP was sent to re-assess aligibility to DLA. In each case the client's DLA was stopped following the EMP report.
My questions are:
How will an appeal tribunal view the fraud investigation?
Do I proceed with appeals along the standard medical evidence route, or do I need different tactics?

I would also appreciate colleagues' views on this. Slightly different scenario, in that my client was caught working while claiming IB, and having been prosecuted and convicted received a Community Rehabilitation Order. Inevitably, they have also discontinued DLA are are seeking to recover an overpayment going back 2 years prior to the date for which working was proved. Client was awarded HRMC and LRCC following an EMP visit in 2001. There hasn't been a new EMP examination since then. Difficulty is that client does appear to have at least some mobility problem, but how can anyone reliably state what he was like 3 years ago?
After all, DLA is an in-work benefit.

I don't like that 'inevitably' at the start of your third sentence Ruth - as you say it's an in-work benefit. Onus is clearly on DWP to show client improved two years ago to get their o/p to exist and then to show that he should have told them of the improvement. Not an easy case surely for them?

As it's an in-work benefit I don't see that starting work is a relevant change of circumstances that must be notified in itself and of itself. If it accompanies an improvement in condition then yes but on its own no.

Which is all very well but in all of these cases you could well end up with a very unsympathetic tribunal, but really they shouldn't in theory be harder than dealing with an appeal with for instance a horrid EMP report. You know it's going to be harder than normal.

If you can get evidence to show he's entitled to HRM and LRC NOW, and there was evidence to show he was entitled to it THEN (in 2001) surely the DWP are going to find it hard to show that he was so different at some point in between?

Isn't there two issues here?

Entitlement and Overpayment?

Ruth and Phil seem to be looking at the decision to revise/supersede the award of DLA.

The second bit is the overpayment once entitlement is decided?

The onus of proof, of course, is on the DWP to show a relevant change of circs to revise or supersede the decison awarding benefit.

Having in both cases, sent an EMP to get more evidence and reassess, the DWP will be satisfied that they have the proof to revise/supersede.

However, a change of opinion or new opinion isn't a relevant change of circs as it is not a primary fact.

R(S)4/86 & R(S)1/92 are very helpful in relation to primary facts.

Further medical evidence (supportive) would be helpful though.

The overpayment issue is a different matter. Has there been an overpayment decision?

errrr....

My readings still coming on a bit.

I see Ruth does have an O/P decision.

What happened with the entitlement decision? There would have to be a deciison revising or superseding the original award. If this han't been appealed you may want to put in a late appeal (if still in the ultimate time limit.) Or least explain why you can't appeal late for consistency. (Assuming that the claimant is saying that they felt they were entitled all along as far as they knew.)

If the DLA ended because of a different EMP opinion you may wish to argue that their was no failure to disclose as the claimant (usually) wouldn't know on what basis the award was given.

i.e. Claimant puts 100 yds on form. EMP visits and assesses walking as 20M. DM awards HRM. Another EMP visits and says perhaps 200M. DLA stops.

The 2nd emp visit would likely end the award from the day of the visit.

To try and revise the decision back to the 2001 date would require some further evidence- Working for instance-

However, neither are primary facts.

In the example case the O/P would very likely be irrecoverable as the claimant usually doesn't see the EMP report unless specifically requested.

If the original EMP report correlates closely with the claim for the original award the DWP would haveto say there was a mistake of fact? in that the claimant was never Virtually Unable To Walk? Or had care needs?

If the claim is (or appears to be) wildly exagerrated you may want to find out the basis for the responses. Perhaps they haven't a clue how far 50m is?

Hope this helps





If the entitlement decision was appealed and lost,

To clarify the chronology of events. Client was awarded IB about 6 years ago. He made an initial claim for DLA in 2001. Following an EMP medical he was awarded HRMC and LRCC. In 2003 he was caught working while claiming IB. Following IUC, his entitlement to both IB and DLA were discontinued. Client made a timeous appeal against the decision on DLA entitlement. In 2004 client was convicted for obtaining benefit when not entitled. The appeal regarding DLA entitlement is still outstanding. At no time since 2001 has there been another EMP exam.

Grateful thanks to colleagues for their helpful suggestions thus far.

R.

Hi again

Seeing I started this thread I decided I better add some details to one of my cases:

Client was reported to DWP by a neighbour who said that client was "going out drinking","walking without her sticks down the driveway" and "had her grandchildren with her for long periods". Apparently DWP considered this evidence enough to warrant an EMP.........you know the rest!

At this stage I do not know for sure whether there was other evidence such as DWP observations.

Was feeling a wee bit sorry for you there, Phil, since, as you state, you started the thread in the first place.

The fraud allegations are not actually relevant as the department, whether by fair means or foul, has now provided medical 'evidence' that your client no longer staisfies the conditions for payment of benefit. They don't need an exuse to get out an EMP as all those who remember the Benefits Ingegrity Project (BIP)will testify. All you can do is try to challenge their evidence with your own. If the tribunal mentions the neighbour's allegations I would remind them that these are not admissable evidence as anyone can pretty much say anything about anyone.

That said, a bad tribunal may have made their minds up about your client before they even see him!

Good luck anyway.