I'm posting this on behalf of Desmond at 2 Garden Court Chambers desmondr@twogardencourtchambers.co.uk
It was originally sent to me via a 3rd party (PLP.) He's confirmed it can be pasted here as one of you might have come across similar incidents. In any case I thought it might well generate some lively debate/opinions.
Thanks
Sue
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----- Original Message -----
From: Desmond Rutledge
To: Conrad Haley
Sent: Tuesday, December 21, 2004 11:32 AM
Subject: Confiscation Orders

A criminal practitioner at 2 Garden Crt has an appeal before the CA where the DWP prosecuted def for failing to disclose his earnings and his wife. After conviction they are pursuing a confiscation order - which they will use to force him (and his family) to sell his home! They have refused to simply put a charge against his home for the amount of the overpayment.

The argument is that (a) this is disproportionate (b) using this method of recovery it is inconsistent with the aims of social security legislation - I.e. supporting people without means (disregarding value of home) v making people homeless. In any event the usual methods of recovery are adequate, even if this includes civil law.

Client is still on means-tested benefit. Home given to him outright by parents.

Are you aware of any examples where DWP have used confiscation orders - which are aimed at international drug dealers - against claimants following conviction for fraud?

(sep message below)
I am concerned that the DWP may have hit upon a new way of getting at claimants. It would be a pity if this got through the criminal jurisdiction with no input from social security practitioners. Any comments welcome. I have advised my colleague to apply for an extension to public funding but it has already reached the skeleton argument stage.
Many thanks

Desmond

Yes, we had one a few months back- again, following cohab fraud conviction. In our case, the client's (undeclared) husband owned the property although the client & her children lived there with him. The client was already being advised by a solicitor (and a court date had been sent) so there wasn't much we could give her in the way of advice. The solicitor was intending to examine family law to see if the client could be regarded as having a claim upon the property and was going to argue that a confiscation order was disproportionate- don't know how it panned out in the end, unfortunately.

..Amendment to the above. The client just this second rang me. Coincidence, or something more sinister? Confiscation order was not awarded on the basis that the property is in the husband's name.

Many thanks. As you know I posted this for Desmond at GC Chambers. No doubt he'll be following any postings and I assume he'll make direct contact with those he feels might have helpful info.
We're lucky to have this site.
Sue

thanks to desmond for alerting us to the Court of Appeal's judgement in Department for Work and Pensions v Richards

see today's rightsnet news story -

Use of confiscation orders to recover benefit overpayments: New Court of Appeal judgment

Desmond has contacted us to say that steps are being taken to appeal the Court of Appeal's judgment in Department for Work and Pensions v Richards and he will keep us up-to-date with any progress ...