Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • johnson120
    • By johnson120 13th Sep 17, 4:03 PM
    • 3Posts
    • 2Thanks
    johnson120
    1st Tier Tribunal & Fraud
    • #1
    • 13th Sep 17, 4:03 PM
    1st Tier Tribunal & Fraud 13th Sep 17 at 4:03 PM
    Hi all, I am hoping someone can help me clear something up that I am trying to help a friend with.
    A couple of years ago he was interviewed under caution and received a letter from DWP saying he had been overpaid on his benefits due to failure to disclose. He asked the DWP to recalcualte the figure and have reasons why he felt it was incorrect. DWP wrote back with same figure so we went to a First Tier Tribunal at the local magistrate court. DWP representative failed to attend but the magistrate ruled that 2 0f the elements that the DWP accused my friend of were wrong. (He had acted as a representative for his parents in dealing with the eastate of a deceased relative). The DWP sent through a revised figure which my friend paid. The figure started at around £17,000 and was reduced to £900. The outcome was never set aside by the DWP.
    A couple of months later he received another letter from the DWP telling him he owed them in excess of £20,000 due to overpayment and they were prosecuting him for 4 counts of fraud. This went through the courts and he pleaded guilty to one count of failure to disclose and agreed to repay the sum. The other 3 charges were dropped as they were connected to him acting as a representative whilst dealing with a deceased persons estate. Whilst monies connected with the estate were going through his bank accounts, he could not legally benefit from these monies and all evidence was shown that at the end of the dealings, all monies were paid to the beneficiary that he was representing. We Thought this was the end of the matter but the DWP then went for a confiscation order demanding another £20,000+ because he pleaded guilty to one count and as such had gained an advantage from the proceeds of crime!

    He feels that because the First Tribunal found in his favour, a new figure was calculated and he paid it, that should have been the ed of it and he now wants to take action against his solicitor and the DWP.

    I think that the Tribunal was a civil hearing regarding overpayment only and the Benefit Fraud was a separate matter dealt with in law.

    He wants my help to write some letters to the Ombudsman, Solicitor, Court and DWP but I think he will end up making a fool of himself and I think he has confused the issues.

    Is anyone able to clrarify if I am right in what I think. I can see this ending in an argument and the end of a friendship. If he has been done an injustice, I am happy to support him but I don't feel in my heart that he is right in his thinking.

    Thnk you in advance for any help.
Page 1
    • Tomsdottir
    • By Tomsdottir 14th Sep 17, 3:25 AM
    • 12 Posts
    • 8 Thanks
    Tomsdottir
    • #2
    • 14th Sep 17, 3:25 AM
    • #2
    • 14th Sep 17, 3:25 AM
    You're 100% right about the division between the civil and criminal issues, but perhaps it would put less strain on your friendship if that information were delivered by a neutral third party? How would it be if you suggested that he visited a CAB or similar advice agency, saying that you don't feel confident in assisting with something involving a criminal matter? I don't know why he pled guilty and personally, would not get drawn into advising on that issue.
    • johnson120
    • By johnson120 14th Sep 17, 9:41 AM
    • 3 Posts
    • 2 Thanks
    johnson120
    • #3
    • 14th Sep 17, 9:41 AM
    Thank you.
    • #3
    • 14th Sep 17, 9:41 AM
    Thank you Tom for the reply.

    I'm grateful that you were able to confirm what I suspected. With regard to the guilty plea there was one element where he had received some money that he did fail to declare as he didn't think he needed to. He had a serious accident some years ago which left him unable to work for a considerable time. He had paid for an insurance as he was self employed which started to pay him a small monthly income about 18months after the accident of about £100 a month. It was this element that he pleaded guilty of Fraud due to failure to disclose. He would have still been entitled to his benefits but a reduced amount and this is what the DWP have been repayed and what they stated as the reason for the confiscation order. It has been very complex and I have supported home all the way through. He is now bitter and angry. His solicitor advised him to plead guilty but said it was almost certain that they would not push for a confiscation order. Even the judge stated that he felt the confiscation was an extreme course of action when all the other factors of the case were considered. My friend now feels very bitter and resentful that he pleaded guilty and got a criminal record, a suspended sentence, paid all monies back in full and now because of the confiscation order he is having to sell his house as he does not have the money to pay his final solicitors bill and the sum due from the confiscation. He feels he was poorly advised and still thinks that it should have all stopped after the Tribunal. I have supported him throughout and he has confided in me so I don't want to walk away now but I also don't want him to now make a fool of himself.

    Sorry I'm rambling on but very grateful for your reply. I have suggested CAB but he has no faith or trust in the system anymore and questions and argues anything that he is told.
    • tomtom256
    • By tomtom256 14th Sep 17, 7:56 PM
    • 854 Posts
    • 1,580 Thanks
    tomtom256
    • #4
    • 14th Sep 17, 7:56 PM
    • #4
    • 14th Sep 17, 7:56 PM
    The criminal conviction overrules the tribunal as far as I know as a tribunal is based on probability where as a criminal court is beyond reasonable doubt.

    Without actually seeing what the tribunal actually stated and when the two cases were heard it is hard to say would could be done.
    • Tomsdottir
    • By Tomsdottir 15th Sep 17, 2:32 AM
    • 12 Posts
    • 8 Thanks
    Tomsdottir
    • #5
    • 15th Sep 17, 2:32 AM
    • #5
    • 15th Sep 17, 2:32 AM
    I'm a little confused about the terms you're using - please forgive me. Fraud comes up in the criminal court. In benefit tribunals (the civil system) an overpayment may be recoverable if it was caused either by failure to disclose or by misrepresentation. Both misrepresentation and failure to disclose overpayments can be fraudulent. So someone can have a decision (in a benefit tribunal) that they have a benefit overpayment - which they have to pay back - and be prosecuted for fraud.
    In contrast with what tomtom is saying, however, it's not the case that the criminal prosecution overrules the tribunal. A criminal prosecution for fraud is determining a different legal issue from misrepresentation/failure to disclose. The law on fraud is completely different from the law on benefit overpayments and recoverability, so there is no reason why a criminal case would bind a civil tribunal. I've represented clients in cases who pled guilty or were successfully prosecuted for fraud but were found not to have been overpaid at the social security appeal tribunal. Tribunals are well aware of the fact that vulnerable claimants plead guilty out of fear when they are not in fact guilty, and when they are poorly advised or don't understand what's happening. Having said all that, there's no getting away from the fact that you've got your work cut out for you if you've either pled guilty or been found guilty of fraud and you're now in front of a civil tribunal saying it was a mistake. It's one thing if (as in most of my cases) you had learning difficulties or mental health problems or addictions), but if you're simply saying "I didn't know the law and my solicitor was rubbish..."
    The last sentence of your post is very interesting indeed. Argumentative people teach us a lot about ourselves and where our responsibilities end.
    • Housing Benefit Officer
    • By Housing Benefit Officer 15th Sep 17, 5:45 AM
    • 2,356 Posts
    • 4,199 Thanks
    Housing Benefit Officer
    • #6
    • 15th Sep 17, 5:45 AM
    • #6
    • 15th Sep 17, 5:45 AM
    There was no fraud when he handled the estate. He was the legal owner of the money/estate not the beneficial owner. The will created a trust so he was a trustee. This capital would be disregarded in full. There should be no overpayment. The undisclosed payments would create a small weekly overpayment.
    These are my own views and you should seek advice from your local Benefits Department or CAB.
    • johnson120
    • By johnson120 15th Sep 17, 8:36 AM
    • 3 Posts
    • 2 Thanks
    johnson120
    • #7
    • 15th Sep 17, 8:36 AM
    • #7
    • 15th Sep 17, 8:36 AM
    Thank you all. I am meeting with him today for a chat and will see how that goes. I can't say that I fully understand it myself, it's been drawn out and complex and been ongoing for 3 years. The problem with the money he failed to disclose which did cause an overpayment ( from his insurance) started in 2009 and had been ongoing for 5 years. Apparently they view this as a more severe fraud due to the length of time it had been ongoing. I really appreciate those that have taken the time to respond. I will see how it goes with him and try and encourage him to seek help from someone who is knowledgeable and has experience of these matters.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

380Posts Today

3,631Users online

Martin's Twitter
  • RT @thismorning: 'Sometimes the best gift is releasing somebody else from the obligation of having to give to you' says @MartinSLewis. Do y?

  • Shana tova umetuka - a sweet Jewish New Year to all celebrating. I won't be online the rest of t'week, as I take the time to be with family

  • Dear Steve. Please note doing a poll to ask people's opinion does not in itself imply an opinion! https://t.co/UGvWlMURxy

  • Follow Martin