The client appealed against the cessation of DLA low rate care, and subsequent overpayment. Further to a fraud investigation a decision was taken that she could now prepare and cook a main meal, and the second decision; that she should have reported the change. The overpayment was taken from the date she was observed by fraud investigators. The transcript of the interview appears to miss the point of her claim; suggesting that she has been investigated because her mobility has improved etc. I have argued that the Sec of State has not discharged burden of proof, as per Reg 6 of the SS&CS(D& A) Regs; stating that there has not been a relevant change of circumstances. I am not sure she should have been awarded the low rate care in the first place- because she has only ever really said that she cannot bend and use the oven ( Is this besides the point?). At no point did the findings of the fraud investigation suggest that she could now do this (At one point the investigator actually implied that he was not interested in "bending")
At tribunal today the Presenting Officer announced that they are to prosecute on 13th April and requested an adjournment. He said it was in the client's interest because anything she said today could be used in court and the criminal court has a "higher burden of proof". Notwithstanding my objections the tribunal did adjourn for client to seek advice from a criminal solicitor.
I might be missing something but it appears to me that with a lower burden of proof a positive outcome at tribunal could have frustrated efforts to secure a criminal conviction, while a negative outcome would not necessarily prejudice the outcome of criminal case. Correspondingly, the Department might lose the criminal case but this might not mean that they will lose at tribunal. I felt that it was in the best interests of the client to have the matter adjudicated by a specialist social securtiy tribunal, particularly as it appeared to me to rely on the satisfaction of reg 6 - and how far can a criminal solicitor assist in this kind of case?
I might be unduly and irrationally worried about this, but if the concerns are real, can we set aside, or challenge, the decision of the tribunal (although likely to be little chance of a re-hearing prior to 13th April!). Any help or suggestions would be gratefully received - and sorry for such a long winded posting.

Your absolutley right to be concerned and you have hit the nail on the head. This has been discussed before: have a look at:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=1643&mesg_id=1643&page=

Reg.6. and Reg.7(2)(c)(ii)both need to be satisfied for them to succeed on the overpayment case. Both look very questionable if, as appears likely, this is just a case of an over generous initial award, with no misinformation from the claimant. Alternatively they could try to use Reg.3(5)(a) or (c) (review for official error or ignorance or error of material fact). Either way the proper place for these arguments is at the appeal tribunal.

Suggest:
1. Contact your regional chair and ask for a Direction that the appeal be heard without delay. In our region (Merseyside) they won't usually agree to adjourning tribunals for criminal proceedings if there is a genuine argument as to entitlement under the benefit regulations - might be different if you were only arguing recoverability which overlaps much more with the criminal issues
2. Contact the criminal solicitors and ask them to seek adjournment or otherwise delay the criminal proceedings. If this was the first your client knew about criminal proceedings it is unlikely to be reach final hearing by April, in my experience.
3. The exact wording of the criminal charge may be of relevance to possible outcomes.

Richard Atkinson

1. Has she received all the copies of the court papers?

2. Would she be eligible for legal aid - if so she should really consult a solicitor - perferably one that understands Social security Law.

3. Was the interview under caution, properly conducted under PACE?

4. What actual evidence do they have that she can cook a main meal for herself?

5. ".....At no point did the findings of the fraud investigation suggest that she could now do this (At one point the investigator actually implied that he was not interested in "bending")..."

Do we have a fraud officer who does not understand the regulations and is not aware of the numerous Commissioner's decisions appertaining to this subject? Bending being an important factor of the test.

Is it only the Cooking test which is the subject of the decision? In what way did the fraud investigators observe her? What period are we talking about ?

I ask, because I knew of a similar to this, which when it eventually reached court the DWP realised they didn't have enough evidence to prove their case, a higher burden of proroof being required as you say. They told the Judge that they were offering no evidence, which didn't improve his mood one jot - she was given an absolute dischage and I believe DWP received a sharp lecture plus they had to pay costs.
Were you to try and get the Tribunal to hear this first, with the lower burden of proof, she might have lost, and when it then went to Court this would'nt have helped her case.

Crossed postings. Fraud officers never understand regulations. They don't even understand DLA as a rule since the IUC's are usually conducted by local office CFIS people, acting for the DCS, not DCS officers.

Disagree with Mike about tactics though. Yes the case might collapse at criminal court but that's a dangerous thing to rely on. The Court won't investigate issues as to entitlement, won't investigate the supersession and revision rules and won't have any particular knowledge of DLA. They will concentrate, quite properly, on the charge as presented to them, ie. the making of a false statement to obtain benefit or whatever. It will be of no help at all to establish after the event that that the claimant was in fact fully entitled to all the DLA they received, a perfectly possible outcome.

Yes, the burden of proof is different between Courts and Tribunals but the questions being asked are different as well. There are so many hoops for the DWP to jump through to establish grounds for retrospective supersession or review of a DLA award - with the burden of proof on them at each stage - that I am convinced a Tribunal, with effective representation, offers far better prospects of success than a criminal court. That is certainly been our experience, without exception so far.

Richard Atkinson

On the specific issue of whether or not an appeal should be adjourned when criminal proceedings are pending, this is now the subject of a Court of Appeal hearing (currently listed for 14/5/07 to 31/10/07).

It stems from CH/1220/2005 & CIS/1216/2005.

On an entirely separate matter, the clmt in "B" v SoS (the "failure to disclose" case) has apparently "....petitioned the European Court of Human Rights regarding refusal of leave by the House of Lords."

Source of the above:

www.osscsc.gov.uk/decisions/forthcoming_appeals_to_the_courts.htm

Regards

I should have qualified my post by saying that it depends to an extent on the evidence upon which the DWP are relying. In the case I referred to, it was largely cicumstantial and based on suppostion - they appeared to be relying heavily on the balance of probablities theory - no actual physical evidence.

Ha! Balance of probabilities isn't going to get them very far in a criminal court.

One big prob is that a NG verdict in a criminal court doesn't prevent the lower burden of proof in the Tribunal being satisfied, so you can be acquitted basically becasue not proved beyond reasonable doubt only for a Tribunal to find that there is an OP which is recoverable on balance of probabilities.

What really gets me though is when they want to prosecute first, eg for LTHAW, and it's quite likely that you might persuade an expert tribunal that they weren't, and so there hasn't actually been an overpayment at all. How many criminal solicitors could get that one across to the magistrates ( a Crown court judge might be more persuadable if you've got the either way offence)

Thank you very much for all your help and comments on this issue. I have answered the questions posed by Mike, below, but I have felt to follow Richard's advice and have written to the District Chair to request the Hearing is reinstated. The client has been to see a criminal solicitor and he is well disposed to this course of action. Will let you know any outcome and thanks again for all your help.

1. No. She has not received any court papers yet. we were only advised of the pending proceedings at tribunal
2.She is eligible for Legal Aid
3.I do not know. There is a full transcript of the interview and a tape available. Is there anything else I need to be looking for?
4. No evidence of being able to cook a main meal as such. they suggest that she has no probpems with manual dexterity, particulary, but this was not the basis for the award: She claimed that she could not bend to use the oven.
5. Yes, it is only the cooking test that is subject of the decsion.

understand that CIS/1216/2005 now reported as R(IS)1//07