Has anybody had experience of dealing with an overpayment case while criminal prosecution is being pursued against the client?

My clt has been assessed with an H/B & CT/B O/Payment of £8000.0 L.A is also pursuing a criminal prosecution against my clt. The criminal case is listed for hearing in August/04

If anybody has any useful pointers regarding the following, I would appreciate it.

1. If my clt wins her appeal before August/04, will the criminal lapse?

2. If the criminal case is heard before the appeal, what are the implications, if she is found guilty?

3. Are there any practical ways of ensuring my appeal is heard first?

I was told that Paul Stagg wrote a useful article on this subject, does anybody have a copy. I have been unable to locate this article on LASA’s web site.

Regards

Jean-Pierre Jacob

I am certainly no expert on appeals (or criminal prosecutions either), but I think that each are treated on an individual basis, as they are dealing with different things. I would assume the appeal is regarding the overpayment amount / calculation / decision, whereas the criminal case is more likely to be dealing with a false declaration or failure to notify a change in circumstance.

I have not seen the article by Paul Stagg, so I am more than open to be corrected on this matter, but I consider the following to be the case:

1. Any appeal before a Tribunal (whether oral or paper), is on the ‘civil’ burden of proof (balance of probabilities), a criminal prosecution is on the criminal burden, (beyond reasonable doubt). If the LA can not prove it’s case to the civil balance, it is highly unlikely they could successfully argue the second. However, you do not say what the prosecution is being brought under. If however it is on the basis of securing public funds to which your client was not entitled to, (the ‘theft argument, obtaining money etc. by deception), and your client wins at Tribunal, there could be no criminal action… benefit entitlement would have been lawfully found to exist, and properly paid.

This argument will hold true even it is accepted that there is an overpayment, caused by ‘Local authority error’ (this is because it will have been found that the ‘claimant could not reasonably have been expected to know they were being overpaid etc). I do not know the ‘procedure’ about criminal appeals lapsing, but I am confident that the grounds on which to mount a prosecution will have lapsed.

2. If your client is successfully prosecuted for an overpayment, then because it has past the higher criminal standard of proof, any LA presenting Officer worth their salt will use that to argue their case at Tribunal. Whilst I do not think that a Magistrates judgement is binding on a Tribunal, (I am open to being corrected on that, though I could make an argument to say that it is not binding on a Tribunal, but I am unsure whether that argument would hold water… it would run along the lines of … a Tribunal must make a decision afresh, and is a complete rehearing of the issues etc, para 9 CH/1229/2002 etc.), I certainly think a Tribunal would be ‘influenced’ by any Magistrates decision.

3. Yes, the LA should note form AT37 (the referral form that is issued to TAS, that contains the administrative issues about how an appeal is to proceed to TAS, (including details of the urgency of the issues arising). Whenever I have an urgent case, and even when the AT37 clearly states the issues involved, TAS (esp.TAS Sutton for some reason), never list ‘urgently’ your should therefore be ringing/writing to your TAS office requesting an urgent listing on behalf of your client, (you could also raise HRA issues with TAS if they do not list urgently, Articles 6, 8, 14 etc as the outcome of any hearing might affect Criminal proceedings).

You should also petition the Criminal court for an adjournment pending the outcome of this matter at TAS as it is on a lower threshold, and if not found on that basis, the court will then have the TAS decision to consider as to whether it is worth the courts time proceeding with a criminal case).

Make sure that the LA refer to TAS without delay. Cite HRA, and/or go to ombudsman straight away of there is any hint of delay in issuing the submission document.

Finally, from your post, it seems as if you might be getting out of your depth with this? This is a very complex area of law… make sure you are comfortable with the issues raised, and do not be afraid to refer on to another rep/agency if this seems to complex… I consider that on many of the issues you raise, fully qualified legal opinion is needed...

The following is a link to a thread on this topic in the previous discussion forum, which included a contribution from Paul Stagg:

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

This also may be of help:

Extract taken from Chapter 5 of Decision Making and Appeals - DSS Guidance for HB/CTB

Criminal proceedings contemplated or pending

If an appeal is connected to matters that may result in criminal proceedings against the appellant, no mention of this should be made in the written submission. However, it should be brought to the attention of the Appeals Service.

The submission should not be delayed where criminal proceedings are being brought by the relevant authority against the appellant. The matter should be brought to the attention of the Appeals Service with details of how far those proceedings have progressed. A legally qualified panel member decides whether the tribunal hearing should be delayed or postponed.

I would just like to thank you all for your help and assistance with this matter. Your advice and observations have been helpful.

May I just say that a solicitor was appointed to deal with the criminal matter and the client was referred to us by the solicitor. I will update you on the outcome of this case.

Regards
Jean-Pierre