I have a client with mild depression and anxiety who has been referred following an overpayment of HB/CTB. She was sent a letter asking her to attend in relation to her CTB claim. She had an interview which I was told was following PACE Guidance. She was not cautioned, given right of legal rep and they were aware of her mental health prblems.

On the basis of this interview with 2 investigators she now has a £10,000 OP as the result of an informal interview. The allegation is that she spent most of her time at her boyfriends property thus she was not using her property as her main residence.

When I chalenged them procedurally they stated that they had followed PACE Guidance!!Any thoughts.

Ask for the tape. The caution should be given with the tape running.

If the caution is not on tape, you will be on much stronger ground.

If the interview was not taped, why not?

Regards

Furthermore, if they were aware of her mental health problems then she should have had an appropriate adult present.

I have requeste the tape etc but was advised that this was an 'informal interview' to obtain additional information. My cl advises she was told at the outset of the interview that an allegation had been made. My argument has been that this interview did not follow PACE but should have done and yet they are using the interview as 'proof'of an overpayment.

I have put in a formal complaint and the reply states that PACE was not followed and my cl was advised she could have a rep especially when she mentioned mental health problems, my cl denies this. As far as I can tell the only evidence is an allegation made possibly by ex husband who works for the LA concerned that cl was living at boyfriends for 3 days of the week.

I have requested an appeal and am waiting for the papers. A criminal prosecution would fail, what is your opinion re an appeal tribunal?

Have some difficulty in understanding cause of the alleged O/P. Would have expected reg 4C(3) to protect someone staying 3 days a week at boyfriends. Have they quoted a CTB reg that has not been complied with?

Given that pace was NOT followed, the interview will carry significantly reduced weight - especially if the info is disputed.

Assuming that your client is not being selective in the info given to you, I'd advise your client not to attend any further interviews. There is no legal basis on which an interview can be demanded (relying on R v Liverpool ex p Johnson 1994 - available on Rnet).

If it is correct that your client was staying at her boyfriend's for 3 nights per week, the argument is simply about which dwelling is her main / sole residence for the purposes of HBR 5 (old regs) in conjunction with s.130 of the SSCBA 1992.

The following CDs / case law have addressed occupancy in one context or another (some will have more relevance than others):

R v Penwith DC ex p BURT (1990) 22 HLR 292 QBD (on Rnet)
R(oao BENNETT) v Copeland BC (2004) EWCA Civ 672 (www.bailii.org)
MULLANEY (& CLAYTON) v Watford BC & Anor <1997> EWHC Admin 28 (bailii)
LB Hammersmith & Fulham v CLARKE & CLARKE (2000) CA (Rnet)

CSIS/0100/1993 (Rnet)
CIS/14850/1996 - *18/97 (www.osscsc.org)
CH/2521/2002 (www.osscsc.org)

Hope the above helps.

Many thanks for your help.

try to gather as much evidence that your client is living at her own address, utility bill, electoral role, etc.

Demand that the investigation team carry out an equifax check on both properties. If they refuse, inform the Tribunal about it and point out the inferences from their refusal to complete a simple task of corroborating their evidence

The record of the interview should be given very little weight by the Tribunal

the onus is on the local authority to show that she is not entitled to CTB and has been overpaid.

i'd request a full explanation of the overpayment decision and confirmation of the legal authority under which CTB was disallowed and copies of the evidence before the d-m

if it is the case that they are arguing on main residence it sounds very dodgy on their side...

The law re absence from home and CTB changed on 1 April 1995. Prior to that date, absence from the home had little relevance and CTB was payable provided the LA had levied the tax on the basis that the dwelling was the persons sole or main residence.

The matter of residence in that sense would be subject to an appeal to the valuation tribunal.

You will need to look at R(H)4/05 where Ms Commissioner Fellner struck down the previous versions of CTB Regs 4B and 4C as ultra vires