What do other welfare rights workers feel about representing clients at fraud interviews under caution. In my view, as it can lead to criminal processing as welfare rights worker we should leave alone

In our experience it is impossible to find a solicitor who is available and/or prepared to do an interview under caution at the JobCentre+ office. If the choice is between the client going alone or with a WR worker then surely it's better for one of us to go with them. Besides, the client may have a good reason for not wanting a solicitor there. I have attended an IUC, but only after explaining to my client that I was not a solicitor and that they may need specialist help at a later stage. And I took a copy of PACE with me.

Which is fine if you also happen to be a solicitor specialising in criminal law, but...

If you're a welfare rights adviser you know about welfare rights stuff. But you don't know about criminal law. The caution is potentially very serious. If you think the questioner has asked an outrageous question you may say "You shouldn't answer that" or something. Perfectly understandable if you did. But what if it was at the heart of the issue and when it came to court the person acting for prosecution said to the magistrate / Judge "Well an experienced welfare rights adviser told her not to answer: you can draw your own conclusions M'lud". If the person accompanying the client was their mum, maybe no-one would bat an eyelid if she went off on one after the DWP asked a dodgy question.

If you're advising you should be doing so on an insured basis. There may well be limits to that insurance. It could be that something you say, or fail to say, in an interview under caution could lead to a client seeking other advice and suing you for your failure. Insurance may not cover it and would your employer pick up the tab? It may sound outlandish but who hasn't seen a lifetime award of unchallenged DLA removed outrageously by a tribunal? It happens, and if it was your fault in your area of expertise at least you're insured if a client comes back.

I really don't think it's good enough to say "Surely someone's better than nobody" to such a complex question. I say this with no enthusiasm at all because there are so few solicitors able to do good defence work for very vulnerable people, and there have been times when I've wished I could barge in and sort it out. But I'm more confident I could balls it all up, so I think "Leave well alone" (but make sure the client is referred) is the correct answer.

From the investigators point of view:

We are happy to allow the interviewee have a 'friend' present for moral support during IUCs. We make a point of speaking directly to the 'friend' and explain their role in the interview, and if we feel that the 'friend' is giving any kind of legal advice, or in any way influence the interview, we will remind them of their role and if necessary exclude them from the interview. The interview is conducted under PACE to protect the legal rights of the interviewee (among others), and therefore if we feel those rights are being compromised, we will act to rectify the situation.

see also the tangential thread and links

@ http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=652&mesg_id=652&page=

Am I right in thinking that the normal negative inferences about silence can't be made if a client remains silent at a benfit fraud interview? I remember reading something to this effect in Legal Action a few years ago. If so, one approach is for client to simply not answer any questions which is safer than well intentioned statements which might inadvertently make matters worse - unless it's a case of denying allegations.

Another approach is to refuse to attend a fraud interview - LAs can't compel claimants to attend (R V Liverpool CC ex P Griffiths)and DWP have no powers of arrest. While benefit may be suspended following doubt about entitlement, any evidence about doubnt (and refusing to attend an interview is only evidence of refusing to attend an interview, nothing else), should be put to a decision maker. If their decision is negative it generates a right of appeal which is safer ground for claimants and advisers to operate on.

What do others think?

On your first point, if the interview is being conducted under PACE, then a court can make inferences from a 'no comment' or silent interview. It is generally accepted that rather than not answering at all, interviewees tend to say 'no comment' rather than have a monologue of questions from the interviewer. Although the offence being investigated is benefit fraud, the inferences are the same, as it is a criminal offence.

Failing to attend an IUC is another option, but I was under the impression that the Liverpool case you quote was more to do with benefit administration rather than a criminal investigation (I could well be wrong on that though - I thought it was about asking benefit claimants to attend the HB office instead of visits being conducted). Neither the DWP or LAs have powers of arrest, but depending on the offences they are looking at, they may well decide to contact the police and ask them to perform an arrest.

Again, I could be wrong, but if the court were made aware that various attempts to interview the benefit claimant (letters posted / hand delivered), and yet no interview was conducted, the court may well take an inference from that (possibly the same as a no comment interview?). All of this though depends on the wording of any letter sent to request the interview.

In plain English, this case was about how much power an LA had when requesting further info for a claim in respect of HB.

Liverpool asked a clmt to attend an interview and the claimant refused. Liverpool relied, broadly, on HBR 73.

For ease of reference, HBR 73 is the one that allows an LA to require such documents, certificates, information and evidence necessary to make a decision on a claim.

In short, the Court found that the terms of HBR 73 did NOT extend to providing LAs with the power to require an interview for the purposes of making a decision on a claim.

However, with the advent of CH/2155/2003 (et al) in relation to HBR 76(2), LAs can draw an inference (adverse if appropriate) from info/evidence that the clmt does, or does not, provide.

Fraud is not my area, so there well be different powers available to an LA in those circumstances; but I'd be surprised if they extend to being able to REQUIRE a clmt (or anyone else for that matter) to attend an interview.

As an aside, there are issues regarding VF. As some Commissioners' Decisions have noted, VF has no LEGAL basis - it has been described as merely an administrative arrangement between the DWP and LAs. In my opinion, LAs are routinely asking for info/evidence that is necessary to comply with VF, but is significantly more than a clmt is LEGALLY required to satisfy HBR 73. CH/2155/2003 has a side effect not yet (apparently) widely appreciated. The effect being to drive coach and horses through VF. CH/2155/2003 makes is perfectly clear that the only LEGAL requirement is for there to be sufficient information to make a decision on a claim. By definition, it is pretty obvious that, in some cases, VF would not necessarily be satisfied.

Well, that's a nice start to a Thursday morning...

Regards

The case cited is actually Liverpool and Johnson. I have emailed a copy to Shawn for publication of Rightsnet.

I think the case is stil good law, but it was distinguished by Commisioner Howell in CH4390/2003, although in my view the facts of CH4930/2003 were such that maybe Commisoner Howell just lost patience with the claimants bloody mindedness and so Liverpool and Johnson is to be preferred.

Stainsby:

Bother! Ever such a slight slip, but ever so slightly important. Thanks for the correction (& apols to anyone I sent on a wild goose chase).

Regards

thanks to stainsby, here's the copy of the Liverpool/Johnson decision -

http://www.rightsnet.org.uk/pdfs/Liverpool_ex_p_Johnson.doc

ps - there's a summary of CH/4390/2003 in briefcase