Our LA has said that it is wrong for us to advise those invited for an interview under caution (IUC) that they can have a non-solicitor person present, and they have encountered difficulties when telling people that their friend/relative cannot sit in.

We give the advice in CPAG's welfare benefits handbook: that anyone can attend, but only a solicitor may speak. This is not referenced.

I'm looking into this but can't find a solid answer in PACE or the code of practice. The nearest I can find is that there is no positive restriction to the presence of another person, and in the case of a solicitors, the code talks in the context of representation - which is speaking on behalf of another.

Does anyone know on what basis our LA might have formed this opinion - they say it's compliant with PACE.

Thanks,

Our local council's leaflet on IUCs states:

'Anyone who is not connected to the investigation can attend with you - this person could be a friend, a social worker or a relative. If the person attending the interview with you is not a solicitor/legal adviser, they are with you for moral support only; they have no right to speak, to advise you, or to ask questions during the interview'.

I would note that PACE Section C 11.17 dealing with 'questioning of juveniles and mentally disordered or othwerwise mentally vulnerable people' states that the appropriate adult is not simply expected to act as an observer and is there to 'facilitate communication with the person being interviewed'.

Hope this is helpful

Tony - I think its just the current 'feeling' towards friends at interviews, not sure of the legality of it, or indeed why it has started to become a topic for discussion recently - I have always allowed friends/relatives in and personally have never had a problem.
However, other LA's have had problems with friends mucking up interviews by constantly answering for the customer etc etc, to the extent now that some LA's remove all references to friends from the QB1b we give out, and insist on solicitors, legal reps, interpretors and appropriate adults only.........

I do not have a problem with our Local Authority when attending interviews under caution. This is because I made it plain to them that I have attended a relevant training course on representing at IUC's and a loyt of experience dealing with the housing benefit and council tax benefit regulations.
I have found in the past that the council officers doing the interviews are ex police and no very little about the regulations and case law. There interview technique is good but the line of questioning is sometimes irrelevant and can lead to decisions being overturned at appeal.

There is no legislation referring to IUCs that states 'friends' should be allowed to attend, certainly in a police station they wouldn't. Therefore it is entirely at the LAs discretion to decide on their policy for this matter, I would allow third parties in my IUCs as long as I was sure they had nothing to do with the alleged offence (this sometimes can be the problem area as how do we know).

Not allowing third parties to attend where they are not needed by the interviewee (ie sols, appropriate adult or interpreters) is certainly compliant with PACE.

But as far as I can tell, there is no legislation that states 'friends' should NOT be allowed to attend.

Your example of a police station is noted, but interviews in police stations are catered for specifically in PACE and the code of practice.

As the law doesn't specify either way, there must be some principle establishing which way the hammer should fall - otherwise, everyone could make up their own rules for everything for which there was no law...

I've got it in mind (I don't know from where) that where the law is obviously ambigious, it should have the most favourable interpretation - in this case allowing others to attend. Can anyone confirm or dispute this? If the principle does exist, would it apply to this situation?

There must be a definitive, referencable, 'yes' or 'no' answer somewhere...?

The rules are different for police officers and for others for sensible reasons. You can be compelled to attend at a police station and so are more vulnerable. Therefore, a solicitor is the appropriate representative and not a lay person.

There has to be a minimum level of competence for the represntative (such as a legal qualification) as the Police need to be confident that their interviews of suspects are not constantly open to being ruled inadmissable because the suspects' rights were unwittingly breached because of the lack of competent representation to stop this happenning.

The LA/DWP cannot compel a person to attend an IUC thus the rules on representation are more relaxed (although a criminal solicitor or someone experienced in criminal law should attend). A claimant can just refuse to attend unless allowed to be accompanied by a friend for support and reassurance.

Thus the LA/DWP have it in their interests to be more flexible (notwithstanding the rules on appropriate adults). However, the interviewing officers do have a right to control (subject to procedural rules and safeguards) the conduct of the interview by not allowing the friend to constantly interupt.

In my view, good practice should dictate that the interviewing officer(s) establish at the beginning whether the person is acting merely as a friend or more formally as a professional adviser. If the former then it would not be appropriate for that person to give advice and the IO would be well within his/her bounds to prevent the person from doing so.

In such a case the person should be allowed to speak but only to assist in establishing the facts. At what point in the interview the person be given the chance to speak is under the control of the IO but s/he should exercize this control reasonably ande fairly. A professional representative, of course should not be so restricted.

The difficulty comes where a friend purports to be acting in a more reptresentative way where there is no professional relationship between claimant and friend. I think that in such situations the IO should (other than just advising the claimant of the right) recommend that s/he would be best served by a professional rep and that the interview be adjourned for consideration, and, in my view it would be within the IO's power to stop the friend acting as rep but it is to no-one's benefit to stop them speaking at all and certainly not to exclude them all together.

Just changing tack slightly,

Has anyone read the new civilspecification pf the LSC Unified Contract.
The new spec. says IUC's cannot be funded under controlled work and must be done under a crime contract.

Which means client's will (oops, may) be getting representation from our solicitor colleagues, many of whom don't have a clue about benefits, and refer their client's who have benefit problems to the likes of us.

That's always been the case hasn't it? I've always understood that a civil contract will not cover representation at an IUC. My approach has always therefore been to give the client general advice re the IUC, specific advice re any benefit issues and then send them off to a criminal practioner if they want to be represented at the IUC. I then usually write to the criminal practitioner to advise them on the benefit issues and to ensure that we work closely, which is especially important if there are any later issues concerning the timing of a criminal prosecution v/s benefit appeal.

we've found out this week that the Public Defender Service in Birmingham is to close at the end of this month, as part of the LSC's decision to restructure the organisation. i've gathered that 3 of 9 offices are to close - Birmingham, Liverpool and Chester. The Birmingham branch was told around 2 weeks ago.

i'm dismayed by this, and if anyone had asked me, fat chance i would have said that this is the only place in Birmingham i can refer clients to with any expectation that they will find a solicitor willing to attend interviews under caution, due to the non-funding policy. i have found them very accessible and responsive, and had very high confidence in this organisation. a very promising working relationship was developing, with a lot of potential for fruitful closer working to overcome the drawbacks of that grey area of expertise around the boundaries of the two different areas of law. this - for improving access to justice for the socially excluded.

how can anyone forced to work with the LSC have confidence in a body with such a propensity for conducting short lived social experiments on them, and why shouldn't i feel angry with a government so willing to play tiddly-winks with peoples' lives, funded by my tax money eg from Hatton to Hutton.

jan

Bummer, JJ. talk to PLP - maybe the LSC's decision to pull the plug is not lawful.


In the absence of solid yes/no answer to the question of non-qualifed person's sitting on IUC's, I'll have to accept that the issue is, as has been mentioned, discretionary.

In that context, our LA, by introducting a blanket ban on non-qualified attendees, may have unlawfully fettered that discretion leaving themselves open to judicial review. Any comments on that?

If the LA have enough evidence and can show an offence has potentially been committed they can compel a claimant to attend IUC by having them arrested. Generally this won't happen as an IUC is there to allow the claimant to put across their side of the story (offer mitigation etc) and the LA is likely to continue in their action even without attendance.

I would say however we do occasionally have claimants arrested if applicable and serious enough, and in this situation interviews would usually be conducted at the police station under PACE with no friends but access to a free sol.

Sorry I have to disagree.

My understanding is that offences under the Social Security Administration Act 1992 do not have a power of arrest, (though e.g. Theft Act offences do). I am concerned that you appear to suggest that the police use Theft Act arrest powers to arrest someone in order to enable you to interview for offences under other legislation. Surely this suggests issues about arrest powers being used where there are not grounds to charge under the Theft Act?

An IUC is not where the claimant puts their view across and it is misleading to suggest so. The DWP's Fraud Investigator's Manual (I have a copy obtained under Freedom of Information Act) makes it very clear that an IUC is an evidence gathering exercise and includes trying to get an admission and/or corroborating evidence from the claimant.

This is why people should not have an IUC until they have had competent legal advice (ideally by a solicitor familiar with both criminal law and social security law or by the solicitor consulting a welfare rights adviser) and evidence has been disclosed by the benefits authorities to the adviser/solicitor. Until this is done, people have an absolute right of silence (R v Beckles).

This is a longstanding and important constitutional safeguard to ensure that people do not mistakenly admit to offences they have not committed.

I'm not sure Neil lives on the same planet as local authority investigators - "evidence has been disclosed by the benefits authorities " - excuse me ?

OK, please let's avoid personal comments.

A solicitor will usually ask fraud investigators/police to disclose what evidence they have in order to be able to advise the client. Such disclosure should be made and is essential so that appropriate advice may be given - I undertand it is common practice.

I'm not a criminal practitioner so I stand to be shot down in flames if I am wrong but didn't the Serious Organised Crime and Police Act 2005 effectively make all offences arrestable?

Fraid you are wrong all offences are now arrestable as per SLloyd. As a LA investigator I DO NOT follow any DWP guidelines or manuals (I'm glad you have a copy). My IUCs are intended to be a fair opportunity for the claimant to explain the discrepancy and if it is apparent that an offence has been committed to discover why in terms of mitagation. I live in the real world and realise that most 'fraudulent' benefit claimants are not doing so because they feel like it, it is usually out of necessity and although not an excuse is always considered by our sanction panel when assessing the situation. Without the IUC this would not happen. IUCs are also conducted when I have made sure the claimant is aware of the potential severity of the issue and ensuring they have had a chance to seek legal advice. I certainly would not continue if the interviewee had any doubts about this.

When I get to a stage that I can reasonably IUC I invariably have enough evidence to prove the admin side of the case otherwise it would have been shelved. All that is left is reason and explanation.

I sometimes think that you guys think all Fraud Officers go out of their way to incriminate claimants what ever the cost and without regard for legislation, we don't and we can't, I'm sure there are exeptions to this as I am sure there are welfare officers who blindly believe their clients are pure as the driven snow. Sorry for the rant..

Sorry to SLloyd if you thought that was directed at you, it wasn't, was in reply to Neil's above message.

I'm happy to admit I may wrong about the arrestabable point (I'm not a criminal law practitioner), but I stand by my comments about IUCs. However well intentioned, at the end of the day the evidence from an IUC may well be used in proceedings, so people must be competently advised by a solicitor before attending - attending with a friend or going along on your own in a well meaning way to "set the record straight", may not be a good idea.

Folk are entitled to their views about what WR advisers believe or do. As advocates, our role is to protect the interests of our clients and to provide the best interpretation of the law on the issues they bring to us and to put their side of events, irrespective of any personal feelings. As soon as we start providing a lesser service to those who someone thinks are not as pure as the driven snow, we fail in that primary ethical obligation. If that makes some opponents think we are naïve, frankly that’s their problem.

I have been involved in welfare rights work for over 30 years and not once in any of the cases I have dealt with, has an overpayment ended as badly as it started, including alleged fraud and "undeserving" cases.

Owen, thanks for your post. Your views are interesting.

Needless to say however, I disagree that at the IUC stage there is usually enough evidence of fraud. I do appreciate that you were only speaking from your own experience, but my experience is that the majority of claimants that come my way are in no way fraudulent (but then those people that are fraudulent generally don't come our way).

Those we do see, and there are enough of those to justify my comments here, tend to be people that are victims of the system, of complexity, and of misadvice and misinformation. This is often compounded or caused by factors such as poor education and literacy skills, health or disability issues and information overload. Add on the fact that one claimant could be dealing with as many as 13 different benefit offices (most claimants would have dealings with at least 4 or 5) and the difficulties of being a benefit claimant become apparent (look around these forums, you'll soon see that even experienced WR advisers struggle sometimes!).

In our (WR) experience, it is factors like these that often create situations where claimants find themselves investigated for 'fraud'. In my experience these investigations are sometimes totally unfounded and it is obvious that no fraud (a DELIBERATE act) has been committed. I posted two such examples on another thread somewhere. In one case, a client was caused tremendous stress and anxiety by having an IUC (and whatever the investigating officer says, these clients have the perception of being accused of a crime - can you imagine how that must feel if you believe you've done nothing wrong?) because earnings were calculated incorrectly after the client correctly and fully reported a change of circumstances.

It is seeing client's like these, victims of injustice, and that fact that we see SOOO MANY of them that causes us WR advisers to lobby hard, challenge and stick up for our clients impartially of the system that I think is responsible for your 'whiter than snow' impression.

Finally, we we are all entitled to rant - I do more than my fair share after all, but I do think you were very brave given that your audience is a community of I don't know how many WR advisers!

...he says light-heartedly.

Neil: In my many years as a WR adviser I have never managed to get a solicitor to accompany a client to an IUC. On rare occasions a local solicitor has agreed, only to back out before the interview. So the choice is always that the client goes alone/with a friend or I attend.

Neil,

Benefit Fraud in broad terms covers a lot of offences, at the more serious end for claimants to be convicted of 111s or theft act for example the investigator has to demonstrate that the claimant has acted dishonestly (DELIBERATE ACT) and in my experience and local magistrates, unless we have years of 'fraud' and obvious attempts to mislead the benefits section (false identities etc) you would be struggling from the outset. However the majority of cases I deal with are 'lower' offences of failure to declare. With these offences I don't have to establish that the claimant acted with fraudulent intent just that there was a change in circs and it did effect their benefit and they haven't told us, therefore no DELIBERATE act as such. The offence is completed by the claimant being aware of the general workings of the benefit system (ie positive change = reduction in bens). I can understand people in this situation being upset that they are being accused of an offence, but in simple terms one has been committed. As in these 'bread and butter'cases (setting aside the contentious issue of LTAHAW) the majority of the evidence lies in proving the claimant has other income/excess capital etc, this is alway done before IUC and overpayments are created before speaking to the claimant and it could be argued with other evidence (ie claimant contacting dept to advise of other changes) case has been proven without needing to interview for further, IUC is therefore an chance for the claimant to explain why, this is often not understanding who to tell, disability, financial hardship and the offence is considered in the light of that.

I have to say every case I deal with I thoroughly examine all claim forms/change of circs/letters from claimants to ensure there is not a sniff off corporate knowledge before persuing the case. Even if there is the slightest over sight by the assessment team I will shelve the case. More than anything else investigating along these lines highlights nothing more than incompetance in the assessment team and this is not in my interest (I have to work with them!)

Ruth: I've interviewed with many sols present so not sure what happening in your area, I would add that I prefer to have one. I can be sure that my questioning has been fair and the client is fully aware of the situation, also I will always provide sols with disclosure. Comments above suggest that Fraud Officers refuse disclosure, why would we, the sol would just advise no comment until we had showed the evidence anyway and in what way would it hinder our interview anyway. Only comment would be that free legal advice should be more freely avaialable to non-arrested interviewees

OMG! I can't believe I've just read that! If you don't suspect any offence and there's no fraudulent intent to prove, then your comments suggest to me that our criticism of bully-ish misuse of IUC scaremongering that we are talking about is fully justified!

I don't think you can appreciate people being upset at all at being accused of an offence. Imagine you've been a hard-working, law-abiding, tax-paying citizen for 40 years, then you get cancer or serious mental illness, have a horrible time claiming benefit, perhaps get into loads of debt, have a threat of homelessness, lose friends, lose self-respect and self-esteem, and then, after all that, you get a nasty letter that you PERCEIVE as suggesting you've committed an offence and will be prosecuted. You have absolutely no idea what it is you've done or why this is happening. That doesn't make people upset, it makes then nervous gibbering wrecks! To top it all-off, you go to this interview and you are treated with overwhelming disrepect, contempt and scorn. How would you feel then?

This happens far too often to be comfortable, which is why you see WR time after time ranting about injustice.

Everybody accepts that fraud does happen and to varying degrees, but the media and target driven political issue of 'fraud' treats everybody with the same brush - without seemingly even attempting to recognise that the over-complicated system staffed by advisers that are under-trained, often under-paid and not always the most caring folk, causes a good deal of the problems in the first place.

Light-hearted? Absolutely not! I think you should go find a WR agency that would accept you on a secondment - go look at it from the other perspective for a while (and yes, I would jump at the chance to look at it from yours).

In my experience yes the IUC can be overwhelming for clients.

However, the point is that there falls a duty to investigate. This might be done well, badly or without knowledge of benefit caselaw.

At least with IUC they are recorded. That's to the benefit of the claimant no matter how formal or accusing it seems.

The advantage to the claimant is that PACE governs the proceedings and there is available a transcript.

I agree it would be much more satisfactory if solicitors could claim time for IUC's and they would therefore be more willing to attend.

But the law always favours the rich.

Thanks for that Tony. After those comments I rest my case. I have not once bullied anyone in the course of my duties. As you should be aware if you can do your job the point of an interview being under caution is to ensure the rights of the interviewee are protected and as formal as that is, we are required to do it by LAW. Get a grip on reality here, all of our transcripts are not only pawed over by our senior officers but are also available for scrutiny by yourselves as advisors and defence sols, do you really think I could get away or even want to use such oppresive techniques as you allude to. To suggest I have a blinkered view is a laugh, I deal with all situations, real fraud to mistakes and except each case on its merits, you definately could do with a secondment and realise you only deal with the few that go wrong. To suggest this is wide spread is just not accurate.

Would advise you read points to prove re bens offences as you are apparently unclear on what constitutes an offence in Benefit Legislation. Have a problem with that if anything.

PS Worked as a benefits advisor for three years and so have seen both sides of the story to a certain extent, haven't altered the way I treat people since I joined the dark side!

So please enlighten me Owen…

I do, as you suggest, seem to be a little ignorant about several issues you have raised:

For example, you said:

“However the majority of cases I deal with are 'lower' offences of failure to declare. With these offences I don't have to establish that the claimant acted with fraudulent intent just that there was a change in circs and it did effect their benefit and they haven't told us, therefore no DELIBERATE act as such. The offence is completed by the claimant being aware of the general workings of the benefit system (ie positive change = reduction in bens)”

Where in the law does it say that “failing to declare” (with no deliberate intent) is an offence? My understanding is that for an “offence”, there is required evidence of dishonest intent, not inadvertence, lack of understanding, or negligence by the claimant. Therefore, if there is no deliberate act, there is no offence.

If, as you suggest, it is in the law, and my understanding of what constitutes an offence is unclear, then please provide a legal reference so I can be better informed to advise my clients.

You also said:

“As you should be aware if you can do your job the point of an interview being under caution is to ensure the rights of the interviewee are protected and as formal as that is, we are required to do it by LAW”

Perhaps you would explain for me exactly the circumstances under which you are “required by law” to conduct an interview under caution – I thought it was where an “offence” is suspected, is that wrong?

Finally, yes I deal with those that go wrong, but I also deal with those where nothing has gone wrong – the IUC was just inappropriate, and as I have mentioned already, I usually do not see those where an offence is committed. However, in my own experience, and the anecdotal evidence I have heard from colleagues, I do believe that abuse of IUC is widespread, and I further believe that this is highlighted by the recent fraud ad campaign where the suggested ‘punishment’ for wrongdoing is “you might find yourself (having an) interview under caution”.


The point I was making was not that you personally are a bully – I certainly didn’t mean to suggest that – but that IUC’s are used inappropriately and their impact on some people is enormous, but totally unwarranted. This is what I tried to highlight with the imaginary scenario – which isn’t too far from imaginary.

As you seem to know Tony when you suspect an offence has been committed, let's say for example Sec 112 (1A) Failure to Declare, to discuss this with the client you must caution if potentially you may take further action. In this situation the points to prove are:

1. There has been a change in circs which effects benefits

2. The change is not a change that is excluded from changes that need to be declared

3. The client has failed to give prompt notification of this change

4. The client understands that change affects entitlement

There is not specifically any requirement to show that the client acted with any intent in this situation. This applies to all section 112 offences and as they are the most common offences under the Social Security Fraud umbrella I would have thought you would have known about them.

I would agree that inappropriately used IUCs are wrong but isn't that a bit of a no brainer. As I have said above I allow friends where possible and welcome help from sols as do my colleagues. Are we such an exception to the rule in Cornwall?

Just my tuppence......

Tony - just to read off a notification of issue of a formal caution that our Solicitors prepare:-

"Details of offence: knowing there had been a change of circumstances on or after xx/xx/xxxx affecting his entitlement to a benefit or other payment or advantage under part 1 of the Social Security Act 1986 and the Social Security Administration Act 1992 failed to give prompt notification of that change in the prescribed manner to the prescribed person resulting in overpayments totalling £xxx contrary to section 112(1a) of the Social Security Administration Act 1992 as inserted by section 16 of the Social Security Fraud Act 2001"

There is no mention of intent or dishonesty - they do not need to be proven (for these offences). Questions are asked in the IUC certainly but these go along the lines of mitigation i.e. somebody who has clearly just made a mistake WHILST STILL GUILTY OF THE OFFENCE would be treated differently at this authority to somebody who for instance said he did it on purpose just to rip us off. I think its important to realise that, say, if a client missed off his Occ pen, causing an overpayment, we then found out and IUC'd him - if he admits to the knowledge, i.e. positive change = reduction in ben, and the other criteria that Owen has decribed above, even if it is a GENUINE MISTAKE, the OFFENCE HAS STILL BEEN COMITTED - this is called strict liability, any evidence the customer puts forward to explain the situation will be used as mitigation but he is still (strictly) guilty of the offence. It is then up to each authority how they proceed with what they have - I think here, if it was a one off and it was clearly a genuine mistake, then even though the offence has been committed, we would probably take no fraud action.

Hope this helps..........

1. I'm duly enlightened. Does anyone have any humble pie...?

2. This doesn't detract from the points I've made - the system still causes a lot of unneccessary grief and hardship, which makes people hateful and mistrustful (as I've demonstrated on behalf of my clients);

3. Owen - my rant was obviously misplaced against the those carrying out the policy rather than the policy itself - but that doesn't mean that I have a misplaced "grip on reality". Maybe it's just that you deal with 'reality' and we deal with aftermath and consequence of 'reality'. Either way, it's the reality that we have to deal with and for one think it sucks and could be dealt with a heck of a lot better.

Wed 14-Mar-07 11:45 PM by shawn

(edited to shorten link)

i have a mint aero!
i seem to have missed all the fun! : )

here's a link to the Act - go to sec 111A - the word 'dishonestly' is definitely in there-

http://www.dwp.gov.uk/advisers/docs/lawvols/bluevol/pdf/a1_1801.pdf

also - here's a link to an interesting court decision.

i have lost the link (since the techie gave my pc a seeing to!) to a parliamentary debate on sec 111A, fwiw, in which it was stated that there was no intention whatsoever of prosecuting genuine mistakes, and the safeguard was the department's prosecution policy itself...

on a positive note, (it may be a false spring!) i'm sensing some improvement in the DWP fraud area at least, with a spate of 'come for a caution' letters being issued...i still have some concerns about this, particularly some of the ideas of offences, but i'm slightly optimistic of an slight change in attitude - early days yet, but fingers crossed...

i'm still concerned about the over-use of IUC's (and agree with Tony's comments,) along with the pressures on investigators to produce results, when 'no fraud found' at the end of investigation doesn't count as a result...

the context of the emphasis on fraud is particularly concerning - that is, a claim system in crisis and in denial of crisis - awards made by decision-maker's so overstretched they don't have time to consider the evidence properly, and a system which fails repeatedly on error prevention and record keeping...etc...

Don't get me wrong Tony, there are times when I can see that the one size fits all legislation is wrong for certain cases, I live in hope that the sanction panel we use to independently judge each case work that out and prevent further action in cases when it is obvious that the overpayment alone is enough. Trust me when I say I take no pleasure in kicking someone when he is down and will always voice an opinion when I feel circumstances have conspired against a client.

aarrgghhh - can't believe im posting from home - jees, no hope for me now...........

JJ, the act you quote is 111, you will see that the offences we are talking about are under 112(1a) - dishonesty is not mentioned...........

oops! my bad...
one day i will learn to read properly!

still, the interesting court decision was interesting, right? : )

jan

JJ, Interesting and familiar decision that (Kerrier DC just round the corner for me). That does deal with a 112 offence but the appeal is over whether the change of circs could or would affect benefit entitlement. The Judge held that if the change merely 'could' have changed entitlement should the defendant be found guilty of an offence that requires the defendant to know that the change would affect his entitlement. A good example of this is when someones IS ceases because they have started part time work, if the earnings are sufficiently low the entitlement to HB/CTB may be uneffected, in this case has the claimant failed to notify change of circs? Yes they have but I would argue not to a level which fulfills the points to prove for the offence and so no fraud (as confirmed by Auld in your case). A point worth noting for you WR people though...

Basically S111A requires "dishonesty", S112 requires “knowingly”. Both require proving beyond reasonable doubt as well as evidence of the claimant’s motives/state of mind. This why IUCs have to be used and why some of the standard questions (is this your signature? Do you understand that you must tell us if you start work? etc) seem to appear in these interviews.

Some figures I obtained from the DWP show that in 2005-06 there were 440,732 fraud investigation and just 8218 prosecutions - 1.8% (and this does not include LA activities). This alarming ratio suggests what many of us suspect – that fraud investigation powers are being used in many cases where fraud does not exist. The result is that many claimants inevitably feel intimidated and under suspicion. It also begs questions about the proper use of public resources if so few investigations result in a prosecution.

Of more profound concern is that many of us fear that significant numbers of people may be inadequately advised, inappropriately accepting administrative penalties, being wrongly convicted and being sentenced using inflated and unquestioned evidence of the alleged frauds.

Using the Freedom of information Act I have also established that in at least one area (Suffolk), DWP fraud investigators have individual prosecution targets. These in turn link to their performance related pay and career advancement prospects.

This subject was considered at the last meeting of the Social Security Law Practitioners Association and one action to come out of the meeting is the establishment of an email network of experienced welfare rights practitioners and criminal lawyers with a special interest in this topic. Please email me (neil@neilbateman.co.uk) if you are interested in joining.

Some materials from that meeting covering tactics during IUCs and common legal and practice issues in benefit fraud cases should also soon be available.

lol! Owen, you should know that there is no hair we WR people will not attempt to split and we never really give up... : )

on a more serious note, i'm enclosing a link to the explanatory notes on the fraud act 2001 for any bemused geeks out there - you have to scroll down to clause 16...

http://www.opsi.gov.uk/acts/en2001/01en11-b.htm

it's a little thin on sec 112, for some reason, but the history is...what it is, including problems with the drafting of legislation, and it's all lumped, unsatisfactorily imo, under the banner of 'social security fraud'. the nub of the argument really, is around fears about the criminalisation of claimants. it goes against the rational grain that someone could commit a criminal offence innocently.

the complexity of the SS system, and the infinite permutations of individuals' circumstances, many of whom are very vulnerable and disadvantaged, makes 'mistakes' mathematically inevitable, i would guess...there is a sense of fair play which is offended here, and it's heartening to hear that FO's are not immune to it either...a public service wielding blunt instruments such as sec.112 is bound to raise concerns in some quarters...these are, after all, 'interesting times'.

the current situation on overpayments, now that the cards have been thrown up in the air, and are still falling, is also a complication, because the offence still needs an overpayment to be established...
and leaving aside, temporarily, the state of chaos around what instructions were actually issued to which claimants and when, it bodes ill that overpayment recovery decisions are given in a state of separation from the revised entitlement decision by people removed from the benefit processes, and ill-equipped to distingish an oficial error from a pickled cucumber.

i think these concerns will remain while the government's re-shaping of the welfare state is investing so heavily in fraud etc ...

to be continued, no doubt...

jan

neil

just saw your excellent post. i should have refreshed earlier! : )

jan

and from the other side......

"Some figures I obtained from the DWP show that in 2005-06 there were 440,732 fraud investigation and just 8218 prosecutions - 1.8% (and this does not include LA activities). This alarming ratio suggests what many of us suspect – that fraud investigation powers are being used in many cases where fraud does not exist."
Does this not show that the DWP are in fact an excellent organisation concerned with the welfare of their clients because they ONLY prosecute in the MOST SERIOUS of cases..........well no, I don't really believe that either but stats can show anything !

You also have to factor in DWPs prosecution triggers as well, they won't prosecute in most cases where the OP is under £2K. That irks me slightly because I have had cases were blatent abuse of the system is apparent but due to the OP no further action is taken, where as in other cases (excess capital cases spring to mind) there is little in the way of 'dishonesty' but due to larger OPs they opt to prosecute. LAs tend to have a more case by case approach due to their more 'local' interest.

The LSC has asked Advicenow to pilot online self-management resources. One of the topics we're going to tackle is interviews under caution. The guide will:

• Explain the meaning and possible repercussions of an interview under caution
• Acknowledge the stress of the situation
• Explain what will happen at the interview
• Explain that representation is ideal but difficult to get. Explain how it might be obtained.
• Explain alternatives - advice first, take a friend, etc.
• How to deal with the interview - how to answer questions, how to keep calm.
• After the interview
• When to get post-interview advice.

We realise this is going to be a challenge, and so we're looking for professionals with an interest in interviews under caution to join an email panel to help us make the guide as effective as it can be. If you're interested in joining the panel please contact me at theresa.harris@advicenow.org.uk

We hope that, with input from a broad range of people working with different client groups, we can produce a resource that will be really helpful for clients who cannot get representation or who live in an advice desert. We are not suggesting that a leaflet is an alternative to advice and representation.

Theresa

Hi

Advicenow was commissioned by the LSC to produce pilot 'self-management' resources. We see self-management resources helping people manage problems better from an early stage including knowing when and how to get specialist help.

One of the topics we tackled was interviews under caution. As you can image it was a very challenging piece of work. But the guide is now published. You can view it here: www.advicenow.org.uk/iuc

The next step is to evaluate it and we're really keen to do this properly, by finding out if it helps people with their real situation at the time they have the problem. We also want to ask advisers and intermediaries their views on the usefulness of the guide. If you have/had clients who have been asked to go to an interview under caution could you help us at all?

* Would you be willing to take part in a short telephone interview with an independent researcher to discuss your views on the effectiveness of the guide?

* Could you put us in touch with clients who might be willing to read the guide and talk to us about it?

Any help you can offer us is greatly appreciated!

If you have any queries or are interested in taking part please feel free to get in touch:

theresa.harris@advicenow.org.uk

Many thanks!

Theresa