We are repping someone with a £50,000 overpayment due to alleged living together as husband and wife. The claimant was interviewed under caution. The decision maker has produced some pieces of information showing them as having the same address. We asked the department if we could see the person's file (as it feels like too much of a coincidence that all the information they produced has them at the same address. We think there may be information that at least does not show that and may be that it points to him living elsewhere). They refused. The Freedom of Information Act allows a person to see their files with some exceptions. One being that it may be used in court proceedings. In trying to obtain the DWP Fraud Investigators Manual* someone I spoke to in Quarry House, said that it is correct that they can/will refuse to disclose all evidence at the tribunal stage but can/have to produce all evidence at point when they proceed with prosecution.
My questions/thoughts are:
- should we be asking for all such OP's to be adjourned pending any prosecution outcome?
- is there an argument against the refusal to provide all the evidence they have? E.g. fair hearing/human rights?

* NB: the Fraud Investigators Manual was listed on the DWP 'freedom of information' website page but the chap at Quarry House tells me that it should not have been on the website in it present form any way. However, a Freedom of Information compliant version will be on before March 2006.

imo you should definitely not ask for the appeal to be heard after the prosecution. the prosecution relies on the living together decision, and without it, there is no overpayment, no offence, and can be no prosecution. the criminal court cannot determine the living together question, and in hearing the case, will accept the L/T as a fact. you would have strong arguments if the prosecution was planned to precede the appeal hearing, but it is not in your client's interests for it to be the other way round.

the appeal submission should include any evidence that supports the claimant's argument as well as that supporting the department's case against your client.

you have asked to see the person's file, but i'm not sure whether you mean the income support claim records, or the fraud investigation file. you will meet great resistence in obtaining the fraud file, and i suspect it would waste all of your energy in an exercise in futility.

obviously, i don't have the details of your case available, but it rather sounds as if you want to see the file _in case_ you find something helpful in it, and i can't realistically see the DWP being receptive to that kind of request, with some justification. if there is a _particular_ piece of evidence you think might be held, you might be more successful in requesting identifiable pieces of evidence, or confirmation of a record you think it likely they should have. it is not that likely, generally speaking, that much evidence will actually be held showing the alleged partner living at a different address, on your client's file, because there we would be no reason to associate it with the claimant's file.

it sounds as if the L/T decision has been given for a retrospective period. it is quite difficult for the DWP to give retrospective decisions, so there is an assumption that they have evidence of a shared address going back some time. How strong or how circumstantial that evidence is, should be revealed in the appeal documents, but i would advise that the best source of rebuttal evidence has to be the claimant and her partner, rather than the DWP.

regarding your Quarry House converstation, there is no justification for any evidence relevant to the living together decision being withheld from the tribunal. there could be evidence held but rightly not taken into account by the decision-maker, which is considered relevant to the nature of the offence rather than to the L/T decision.

jj

Agreed on the point that the tribunal should be heard before the trial, if your client wins the benefit appeal it undermines the prosecution. Conversely, if the trial goes ahead and the client pleads, or is found guilty they don't stand a cat in hells chance at the appeal (mainly due to the differnt standards of proof that are used in the respective forums).

One word of warning (and I'm sure I must be trying to teach my grandmother to suck eggs here) but you need to operate extreme caution iro any submissions/statements made to the tribunal because anything said will then be in the knowledge of the DWP and may assisst with the prosecution. My approach in these type of matters is to try and get the client signed up with an appropriate criminal solicitor sooner rather than later (although to be fair some may be reluctant to get involved until a summons is actually issued). Any submissions etc should then be run past the solicitor before submitting to TAS.

In respect of the file that you want, you can ask but you might not get, the DPA etc contains exceptions which include cases where a prosecution is pending. However, depending on how the prosection is handled (and I suspect it will be tried "either way") you may be lucky enough to get some advance information before the appeal. Conversely, the appeal papers should contain everything used by the DWP to make the decision so my gut feeling is you shouldn't have any problems there. Finally (if you haven't already) you should make sure you request a copy of hte IUC tape and transcript.

This may not be of any help, but.... I'm involved in a similar case at the moment. We've got transcripts of the IUC and we have knowledge that the alleged partner's landlord gave a statement under PACE. That showed an alternative address during the period in question, but was not made available via DPA, nor was it provided at the tribunal. The chair adjourned with a direction for the DWP/LA to produce said document within 28 days. Time's up, no document,I'm getting optimistic about client's chances.

Surely if the DWP selects which evidence it chooses to produce, that must have an effect on the weight to be given to that evidence?

If you have asked for the rest and been refused without reason, could it be argued that the evidence not produced should be presumed to assisi the claimant?

This *may* assist. There is a HB/CTB CD where the clmt accused the LA of cherry picking the evidence (CH/0328/2003).

At first glance, the Commissioner's response doesn't seems terribly helpful from the clmt's viewpoint - he found (amongst other things) that if the clmt believed evidence was missing, it was up to him to ask for it.

However, I think the very same finding can be used to support an argument that the clmt is perfectly entitled to pursue evidence that is considered "missing" - and should expect it to be provided in time for any appeal hearing.

On the flip side, that same finding may well provide the LA with equal power......(aside from powers formally provided in regulations).

I can mail the CD in question if needed (it wasn't on the Commissioner's site when I last looked).

Regards

hi
yes please
email address:
welfare.rights@newcastle.gov.uk
Thanks
Clive