I would welcome views on the following scenario. Client charged with fraud re DLA although she qualifies 10 x over for both rates. Benefit suspended or at least we think as no decison issued apart from recovery letter, e.g. you owe us £2000 from 2002 -2003 pay it back. IS reduced accordingly. Deliberating over the benefits of tribunal then court case that is if appeal successful no prosecution case or do we have to await outcome of criminal case. Client has rights under article 6, the right to a "fair hearing". However, if criminal case proceeds first without allowing adjudication process i.e. tribunal Commisioners etc. Would this not mean that client denied the right vis-a-vis civil law of Social security. Which trumps which, and am I right in assuming that if not this case would we one day be confronted with a situation where a claimant is convicted for fraud but wins tribunal or even vise versa.

COMMENTS PLEASE

fwiw, my view is as follows: -

your client has been charged with fraud and received a demand for repayment of an overpayment. there is a supposition therefore that a D-M has revised the decision awarding DLA, and decided that the conditions of entitlement were not met. she has a right of appeal against the decision on entitlement, and against the overpayment decision, which depends on the revision having been carried out. in order to exercise her right of appeal, she requires notification of the decisions. she is entitled to an explanation of the D-M's decisions.

the fraud case is dependant on the entitlement decision being revised. if the D-M does not find that there are grounds to revise, and that the conditions of entitlement were not met, fraud has no case to prosecute and there is no overpayment.

an overpayment cannot be calculated on a benefit suspension - a decision on entitlement is required, and until a decision in accordance with section 71 is made, the demand for money is unlawful.
i think you need to know on what date your client was charged with fraud, and on what date the D-M gave the decision. i would expect the latter to preceed the former by a significant margin, since i would expect that no decision on prosecution could be given until the D-M had given a decision, and the case then has to go to solicitor's branch for the prosecution to be authorised. prosecution of disabled people, i would expect, is a sensitive area, requiring careful consideration. ( i could be wrong about all of this - but as far as I'm aware, the DWP is still bound by the CPS Code for crown prosecutors, and public interest factors, for and against prosecution should be taken into account. )

given the complexity of questions of DLA entitlement, i cannot comprehend how it is possible for a prosecution case to be heard before a DLA appeal. the criminal court does not have jurisdiction or expertise to determine the question of DLA entitlement, and really needs it to be established as a fact (ie an undisputed determination has been made) that the claimant was not entitled to benefit he received, so that it can concentrate on whether his failure to report winning silver in the local caber tossing competion was fraud, or whatever. i fully agree that hearing the criminal case when the personal has not had the opportunity to dispute the entitlement question would breach their right to a fair hearing.

however, i have heard that from other contributors here that this not only happens on occasions, but that tribunals have been involved in the question of precedence. i do not understand it - unfortunately, it is difficult to find out more- people rarely post progress reports after such queries, and with prosecution involved, discussion of on-going cases in necessarily constrained. i have some severe doubts about the actions currently being taken at the decision to prosecute stage, and feel that something is going seriously wrong.

jj

"...and am I right in assuming that if not this case would we one day be confronted with a situation where a claimant is convicted for fraud but wins tribunal or even vise versa".

In my view it is perfectly possible for a person to win in the criminal court and lose in a civil tribunal because of the different standards of proof required, i.e, in the criminal court - beyond reasonable doubt, and in the civil tribunal - on the balance of probabilities.

This is notwithstanding (apart from the actual wording of the Theft Act) the fact that the court is (essentially) concerned with, 2 separate (although related) questions. That is - was there a failure to disclose? And, was the failure to disclose done with fraudulent intent? The tribunal is (essentially) concerned with 1, was there a failure to disclose?

If the court decided that the DWP couldn’t establish that, beyond reasonable doubt, there was an actual failure to disclose then the tribunal can still find that on the balance of probabilities there was a failure to disclose.

Just a few further thoughts. My opinion of the morality of all this I’ll save for another time.

I’m not sure that there is a right or wrong way (as a matter of law) for the order in which these hearings are heard. The reason why the DWP and LA’s will stay the OP appeals until the outcome of the court case is that if they lost in tribunal then they have no chance in court, but not the other way round. Maybe the courts will lay down some firm guidance for these situations one day.

The question of entitlement, as Jan says, is material to the court case but not necessarily material for the tribunal hearing an OP case, as this tribunal is not dealing with entitlement at all, particularly where the entitlement decision has not been appealed.

The tribunal is not concerning itself with the question of whether the original awarding decision was correct. It has no jurisdiction there. The tribunal has to decide whether there was a failure to disclose a material fact, which if known to the SoS would have led to benefit not being paid. This entails dealing with all the subsidiary questions of whether the fact was material, chain of causation, etc.

The tribunal thus decides one question only. Is the OP recoverable? If the DWP cannot prove that there has been a relevant change of circumstances in the care needs or mobility problems or that the fact that the claimant failed to disclose was material then the tribunal must find the OP not recoverable.

The question of whether the ground of supersession of the entitlement decision is correctly made out is one that the tribunal, by these investigations of course, does decide. So the question of entitlement does come in by the back door but only insofar as to whether the entitlement was correctly removed or not. The tribunal is not concerned with the merits of the award only the correctness of its removal. This is because the tribunal is only considering whether the OP is recoverable. It has no power to re-instate the award.

This is because the entitlement decision may not be under appeal to that tribunal or even under appeal at all, unless the entitlement decision has been appealed and the 2 appeals have been slotted together to be heard by the same tribunal. In that case the tribunal in its second slot then goes on to hear the entitlement case.

I am often asked this question by LA's when preparing submissions, what happens if we win at court and lose at TAS?

With respect to what has been written above, "The reason why the DWP and LA’s will stay the OP appeals until the outcome of the court case is that if they lost in tribunal then they have no chance in court, but not the other way round" is not correct. LA's have no power to have an appeal stayed. I know from personal experience that some DC's would be very unhappy if I even suggested I had that authority!!! (I can't speak for the DWP, but I understand that exactly the same rules apply in preparing subs, referring to TAS etc.).

DWP guidance to LA's confirms that in cases involving prosecution, that fact should be clearly stated on the AT37, (additional information), and it is for a DC to decide how to list (re otherwise), and all any reps would be more than entitled to ask TAS to look at that decision again, (referral to Regional Chair etc).

My understanding of why these appeals are often stayed on decision of the DC, is that the rules of sub-judice apply, and Chairs are prevented from discussing the matter further until that decision is made by the superior court, (not too sure of any argument that TAS is equivalent to Magistrates courts, and maybe that argument could be had, SSAT's do not appear in the hierarchy of courts that I have in my reference books, but cases before higher courts would certainly be OOJ to TAS until those proceedings were concluded). I have asked TAS to hold hearings whilst Criminal proceedings take place, but have not been in the LA’s concerned when (I would assume), that TAS had asked why they should list before hearing for prosecution. My arguments would have been largely in line with those above (hopefully with a fairly solid argument that TAS and Magistrates courts were equal, in both being courts of first-instance, and therefore neither bound by sub-judice in deciding which matter is heard first. But I have never researched that argument, so am unsure if it holds water).

As TAS has actual power not just to rule that an O/P is recoverable, it also has full decision-making powers of the DM. Therefore, it could decide there had been no O/P in the first instance, and therefore, that decision (subject to appeal before Commissioners etc), might well render any conviction unsafe, but that would require appeal through the courts, and would recommend a solicitor in criminal law for that...

You're quite right. Stay was a bad choice of words. I completely agree that neither the DWP or LA's have a legal power to stay appeals in these kinds of cases. What I really meant and should have said more clearly, is "delay, for as long as they possibly can, sending the appeal down to TAS." Of course, once issued with a direction from a chair then they have no option but to comply.

Nevip,

That’s a very jaded view of LAs you have there... Granted there are some LA's that are very very poor in submitting appeals to TAS, but there are also some very very good LA's... Much like Reps, I have met very very good and bad ones, indeed, I have objected to comments and taken apologies at hearings from a number of them. I however do not tar all with the same brush!! For me CIB/903/03 is not an indication of what reps do. Even if the many more CD's criticising LA's exist that those that criticise reps, I know your revised comments are not correct!!!

I have no idea of how the LA's in your area work, but I have worked for LA's that are under-resourced, but still seek to do their utmost to refer within LGO timescales, and refer to the highest standard. I know they exist, because I have worked for them, (and likewise I walk out on and refuse to return to LAs where poor practice exists. It doesn't take more than a day or two to 'sus' an LA's ethos on appeals). I know that I am not alone in taking the actions I do, and many more appeals officers and LA's act the same way I do...

As a further thought, if the LA does delay, you can always go to the LGO. Levels of compensation have been increased, and that provides a remedy for the bad practice in an LA area (and you might be surprised how LA's do not want reported LGO decisions now, as they affect CPA ratings!). Your task at the LGO would be made easier if you raised Article 6 in your submissions to TAS (possibly with Art 8 & 14 for reasons of delay), and had your submissions upheld. TAS does have jurisdiction on HRA matters!!!

Shame that you felt that you were unable to comment on the substance of my post though, and how you might be able to have TAS not bound by seeming rules of sub-judice... Ho hum...

i'm going to pile in on this

I don't understand how a criminal court could decide that there had been a fraud, before TAS had decided the facts etc. in relation to the particular point.

It seems to me that unless the benefits issue has gone to TAS and that side been decided, a prosecutor cannot know whether there is anything to be prosecuted.

not that I do crime - i don't and never have - but it would seem to me that if matters were dealt with the other way round, and TAS was in claimant's favour, any criminal conviction would have to be successful on appeal. So there woulnd't be any point in doing the criminal side first, it would be a waste of everyone's time & money

also, there would be HRA implications, i would have thought ....

First, I know my revised comments are correct. I have known LA’s who have delayed sending down appeals and I am perfectly aware of what options are at my disposal to get them to comply with the law. The problem is with claimants who do not have representation.

Second, I do not tar all LA’s with the same brush. I willingly accept that there are some good, some bad and some indifferent. Many years ago I rang a particular LA’s HB section and asked if it was possible that they had made a mistake. I pointed out that these things happen from time to time and was perfectly understandable. The response was, and I quote, “we don’t make mistakes and we wouldn’t admit it if we did”.

Third, I work for an LA and I am aware of the problems with resources, rubbish IT systems, etc, etc. However, the sympathy only goes so far and ultimately, my job and my instincts are on the side of the client. You have your job to do and I have mine and on many things we will have to agree to disagree.

Finally, I made no comment on the substantive issue of your post because, the honest answer is that I just don’t know if the rule of sub judice applies or not. If you can show me some rule of law or point to something in, say the civil procedure rules, then I will defer to that.

I personally do not care whether the civil or criminal case is heard first. If I think I have a legal argument which will stand up in tribunal then I wish it to stand or fall on its merits and not from a nudge from some outside contingency. Although I'll accept the win any way it comes.

if the person wins their case at TAS, then that has to be definitive (subject to commissioners etc) of the benefit position.

if a person wins at TAS, there can't be anything to prosecute.

Why would prosecutors take a matter to the mags, before TAS? if they did, and the person won at TAS post convication, then the conviction woudl be open to challenge on appeal (and why would an appeal not succeed in those circumstances?)

and it would raise human rights issues.

granted I'm not a criminal lawyer, but it would seem to me to be illogical to deal with something as serious as a possible fraud without actually getting a definitive decision on the benefits side from TAS first ...

oops, sorry about my second post, thought the first had gone missing in the ether.

sub judice is a difficult concept. usually applies to e.g. whether the press can report a case.

in the scenario stated, there are two separate cases, raising different issues on the same set of facts.

the decision of one body (TAS) would be determinative of the entitlement to benefit or not. If that was in favour of claimant, how could the other body (mags) say there was fraud?

it doesn't work the toher way round ...

Claire:

Although it seems nuts, I can easily see how a criminal prosecution could be successful, while a Tribunal decision could find for a clmt.

I dealt with an appeal (for an LA) relatively recently where the clmt was convicted (3 counts) under s.112 SSA (1992). For whatever reason, the civil HB appeal hadn't been to TAS. My job was to compile the submission. The more I looked at it, the less confident I was.

While it was undoubtedly true that the clmt had failed to disclose info relevant to his claim (hence the convictions), it became transparently obvious that the effect on HB actually paid out was relatively small. I was so concerned with deficiencies in the admin of the case, that my recommendation to the LA was to write off the remaining o/p. The deficiencies were important for the purposes of the HB/CTB regs, but not for the SSA.

As was pointed out earlier in the thread, the issues being considered by TAS can be very different to those considered in a court and so I don't see that two different outcomes are necessarily mutually exclusive.

Regards

CH/1216/2005 highlighted in the briefcase area to day decided that a tribunal did not go wrong in law for refusing to adjourn the civil proceedings until the criminal proceedings had gone ahead.

Thus it appears that there is nothing in law that requires the hearing of the criminal case first.

Here's the link to the briefcase summary of CH/1216/2005 -

http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template1=briefcase/detail.htm&briefcase.ID_option=1&briefcase.ID=105183932470

The summary contains a link to the full decision available on the www.osscsc.gov.uk website.

I agree with all those who have made the point that the civil appeal should be heard first, since the AT is the specialist judicial body with expertise in deciding matters to do with social security entitlement. Any fraud case must depend on their having been a recoverable overpayment, so sensibly that needs to be decided first, as otherwise there may be nothing to prosecute for.

However, not all chairs or advisers would agree with me. I was recently involved in a three day overpayment hearing, after the client was convicted in the Crown Court. We won the tribunal, and the case is now on its way to the Court of Appeal, who with any luck will give some guidance on this issue.

Simon

I've been involved in several fraud prosecutions as an expert witness or consultant. My view is that the civil matters should be dealt with first because:

a) A successful OP appeal MAY show that an offence has not been committed. e.g a claimant charged under s111(1A) SSA Act 1992 with dishonestly not reporting a change of circs as LTAHAW: the OP appeal might decide that claimant is not LTAHAW and/or that they did notify DWP.

b) Even if an offence has been comitted, if there is either a nil or a very small amount of recoverable OP, it would be disproportionate for a prosecution to continue and it MAY be arguable (depending on the facts) that no offence has been committed. DWP/LA may withdraw charges anyway in such cases.

c) If found guilty, the amount of the OP is very relevant for sentence. As is amount of notional TCs in cases where claimants have been working while claiming.

Basically, a Tribunal can de-clutter matters for a criminal court.

One thing which concerns me is the lack of joined up work by lawyers acting for the defence and welfare rights advisers (and also between prosecution lawyers and Decision Makers).

Also, the lack of legal aid for Tribunals seems to fit uneasily with Art 6 ECHR, given the close link between an OP appeal and guilt/not guilty as well as the implications for sentence(see discussion about this on p 1248 Rowland & White).

Share Neil's concern about lack of liaison. It should be automatic that criminal cases are assessed by people with welfare rights experience for possible entitlement issues, and appeals made if there is an argument, for hearing before the criminal case. We have had two largish criminal prosecutions stopped when a Tribunal decided the person was in fact fully entitled to the payments received - both cohab. cases which are often very arguable.

Interested in the reference to lack of liaison between prosecuting lawyers and DM's. In one of the cases we got stopped client won Tribunal in February, still summoned to appear in Court in July to answer criminal charges which were only then withdrawn. Since client was heavily pregnant, with disabled child in tow, when she appeared in Court we got compensation (for 'extreme embarrasment')for this maladministration but it illustrates the point.

Richard Atkinson

Hello Richard

Can we discuss over phone or face to face. I am in Liverpool. Case is too delicate to discuss in open forum

Cheers

TC

Can't find contact details. E-mail me at richardatkinson@wirral.gov.uk or phone 666 4572.

Richard Atkinson

The following is a link to a posting by Paul Stagg relating to this issue in the 'old' discussion forum -

http://www.rightsnet.org.uk/forum/appeals/393.html#7