This is mostly for those of you that work in a law practice.

I am advising a client who has been offered an administrative penalty by the DWP. As per our policy, as this is a criminal law issues we have signposted to a relevant lawyer.

Client has come back and told us that every office they visited refused to help unless and until the client had a court date - which they obviously don't - as they can't claim under the legal aid scheme. Although they did suggest client goes private...

Is this correct, and what can my client do about it?

She needs advice as she cannot agree to pay the penalty because 1) the overpayment is disputed and 2) if it's fraud - I'm a grandmother!

I probably should know this stuff myself but I'm not a happy person at the moment...

Thanks as usual for all contributions.

well, we don't do crime. But generally, if she qualifies for legal help she qualifies for legal help and should at least be able to get advice from someone under the legal help scheme. I know nothing abut full criminal legal aid, however, so can't take that further. legal help being, as you know, different from legal aid but should entitle advice on any area of law for those who qualify financially.

presumably, if the overpayment decision is disputed you're on your way to TAS with it. Why, therefore, is the DWP offering an "administrative penalty" when the question of whether the overpayment exists at all is still in dispute?

You could ring round the local solicitors yourself and if you still get no joy ask the law society to recommend someone.

Sorry, we dont do criminal either and I think the CDS funding rules have all changed since I had any reason to look in any detail at it. You could do worse that look at this from the LSC website:

http://www.legalservices.gov.uk/A_Practical_Guide_to_Criminal_Defence_Services_June_07.pdf

I can't imediatley see any reason why she couldn't get advice and assistance under the equivalent of the Legal Help scheme, perhaps the solicitors she went to didn't have contracts with the LSC? You could ring the LSC and ask them. Other than that, to be frank, I think most welfare rights specialists would be better qualified to advise on adpens anyway unless it is a particually serious matter. The advice is usually fairly standard, admission of guilt in return for non prosecution and s.111 offences - dishonest and "non-dishonest" failure to disclose etc (See the CPAG book!).
I usually only insist on referring to a criminal firm if and when a summons is issued. I do give the option at an earlier stage but often it is difficult to find a publicly funded criminal lawyer with the time or willing to advise unless a summons has already been received.

If the overpayment is so disputable, surely there aren't grounds for DWP to be prosecuting? Therefore they should not be offering a penalty as an alternative to prosecution? One does wonder whether these penalties get offered in weak cases in order for DWP and LA to be able to show a "result" and petrified clients accept them thinking they've been spared a Court appearance with associated damaging publicity.

A recent FoI request I did turned up the disturbing fact that DWP fraud investigators have targets for prosecutions and admin penalties and that these are linked to their performance related pay.

It's very difficult to understand the rationale behind this sort of public policy, which, I agree, is disturbing.

Thanks for replies and suggestions.

I have found a local solicitor to take on the case. He says that he claims as advice and assistance provided under criminal defence service. CLS direct had no idea, and I was unable to get through to our LSC regional office.

Neil Bateman published an article in the Law Soc Gazette this week on this very subject, dont know if its available on the internet anywhere. Neil?

Link to my article:

http://www.lawgazette.co.uk/inpractice/practicepoints/view=details.law?GAZETTEINPRACTICEID=363278&FUNCTION=print

I've been concerned for some time about the issues referred to in Neil's article. I am specifically interested in the supervision of CFTs - who does it? What safeguards are in place? What policies are in place for the protection of vulnerable adults with mental health/mild learning disabilities/cognitive problems, etc.

A press report last year highlighted (without critical comment) the case of a person who claimed benefits (IB/IS I believe) for two years whilst working full time. Presumably identified through data matching, said person was in the process of paying back in installments. However, prosecution followed. Soon after the court appearance/publicity the person committed suicide. Subsequently it is reported that the person had a history of suicide attempts (and I believe an ongoing MH condition).

How can such a thing happen? Unfortunately, I was not involved with this case - so not in a position to know all the facts. However, I did deal with a case (which I am sure would have been prosecuted) where the relevant DWP department dropped the threat of prosecution following a letter from our office about the potential risks (we won the subsequent appeal), but I could see just how easy it would have been to get the case to court and hit yet another target.

No one should condone fraud, but Neil's FOI revelation that performance related pay is a feature of CFT operations is very scary indeed. This is surely a topic ripe for an urgent investigation by the Work & Pensions Select Committee when Parliament sits again.

Thanks Neil