Benefit fraud - do i need a lawyer part 2

x4xy

This thread is continuing from where the thread BENEFIT FRAUD - DO I NEED A LAWYER ended, posted on 05-01-2012, 2:38 PM. That one was part 1 and this is part 2. If you wish to you can go to part I to get updated before reading whatever will appear on this thread

I went to court today for benefit fraud for not declaring all the capital in my income support application and the capital total was above the limits allowed for income support. I was ready to plead guilty and get it over quickly as - looking back, I'd have rather spent a couple of months in jail than living for almost a year sick and ill and unable to do anything with my life with the worry of this case.
However my lawyer arrived and she looked at my papers and she advised me to plead not guilty, on the grounds that the money my sister sent me into my account should not be counted as an increase of my personal capital, on the grounds that I never used such money for my benefit and I was keeping it for my sister, even though I do not have any written document or witness to back this up.
According to my lawyer reasoning when I made my original application for income support I was not being dishonest as my personal capital, the part I used for my own benefit was within the limits accepted for income support.

So I pleaded not guilty and the trial was adjourned to another date.

I have the following questions:
1) Is the lawyer reasoning right, taking into account I do not have hard proof - ie nothing written down - of when my sister sent me the money?

2) The lawyer said that she would write to crown prosecutions to ask them to drop the prosecution against me because as I have paid in full the overpayment of £ 15,000 and I never used my sister's capital in my account for my own benefit there is no public interest in prosecuting me. What chances are there that the prosecution will be dropped?

3) Having pleaded not guilty I will have to pay the lawyer an extra £500 to see me through the upcoming trial. Am I right to wonder the lawyer might have convinced me to plead not guilty so she could make more money out of my case?

4) My lawyer said as a first time offender with that amount of overpayment and having paid it in full, I would not have a jail sentence. Does that sound likely?

I hope posters from Part One will also contribute to this Part Two, as I got really a lot of ideas and enlightnment from most of them.

thanks again and please keep posting you honest advice.

Nessynoo

Why did you pay back £15,000 if you've pleaded not guilty?
Whose money was this? Yours or your sisters?

x4xy

Please go and read part I.

FBaby

Totally confused.... You are claiming that you were over the limit only because of the capital you were keeping for your sister....that this capital was such that it resulted in a £16K overpayment.... I can only imagine that for such a large overpayment, it must have been a significantly large sum that was on your account for a significant time....why would you be keeping such a large amount for a long time for your sister, unless it was to hide it for your sister for whichever reason? How did you manage to find such an amount to repay if indeed you didn't have a significant sum in your own name? And why indeed would you repay it if you claim you are not guilty?????

rogerblack

Yes, she's right.
Money being in your account is a strong point against you, but it is not the only point.
Specific examples are given in the decision-makers guides about this.
The DWP representative telling you in the interview under caution 'if it's in your account, it's yours, you can't argue' was either mistaken as to the real position, or misleading intentionally.

Point the lawyer at http://www.dwp.gov.uk/docs/dmgch29.pdf - if they are not already aware of it.
Specifically paragraph 29090
You are the legal owner of the capital in this case.
You are claiming you are not the beneficial owner, your sister is.

See also the example a few paragraphs down where a claimant is holding 22500 for a sister, and it is found not to be their capital. (this example is clearer, as it was in a seperate account, but that's not fatal)

BigAunty

x4xy wrote: »

...

3) Having pleaded not guilty I will have to pay the lawyer an extra £500 to see me through the upcoming trial. Am I right to wonder the lawyer might have convinced me to plead not guilty so she could make more money out of my case?

No. You are very mistaken.

BigAunty

x4xy wrote: »

...

4) My lawyer said as a first time offender with that amount of overpayment and having paid it in full, I would not have a jail sentence. Does that sound likely?

There is guidance for sentencing in benefit fraud published on the internet which you can interrogate yourself. Example:-

http://www.gardencourtchambers.co.uk/resources/resource_details.cfm?iPublicationID=11

Google and undercover them to find the sentencing manuals and guidance.

[Deleted User]

i`m afraid this forum is for benefit advice NOT criminal law advice,you either trust the solicitor you are paying £500 or you dont,i`m sure he/she will answer your questions

BigAunty

Yeah, I second Woodbine.

Because of the complexity of the case, the risks you face, it's best left to legal experts and/or you to ferret out published guidelines for this area and interpret them yourself.

You could always seek (and pay for, if you don't qualify for legal aid) a second opinion from another lawyer.

It's easy enough for experienced benefit forum members to present information on benefit rules - they are usually black and white - but impossible for them to challenge or support a lawyer about the chances of you being sent to prison.

SkyWatcher_3

Really the mater of who the beneficial owner of the money was should have been sorted at the appeal stage but I suspect from your earlier posting that other issues that you had, and perhaps a lack of advice, mean that this didn't happen.

I can see the solicitor's point about your plea and it may come down to what offence you were charged with. If it was the "dishonesty" charge then the prosecution have to prove, beyond reasonable doubt, that you were dishonest in not declaring this capital. I'd say that your solicitor asking for the case to be withdrawn by the prosecution may work or it may not. If the prosecution want to press ahead (it's their decision) the solicitor may instead negotiate with the prosecution to amend the charges to the non-dishonesty offence, in exchange for you pleading guilty. Your solicitor can only advise you of your options and ultimately it's your decision what you do.

The chances of imprisonment are small. The Sentencing Guidelines Council has a document explaining the decision making process, which you can find on their website. It's not great to read and your solicitor may be able to explain it in more human terms.

Obviously the caveat to my comments is that they don't constitute legal advice and are only based on what you have told us but have a pat on the back from me for being sensible and getting a solicitor.

x4xy

Again thank you for all your contributions, some really good pointers... I repeat again for the odd poster who seem to be here to pass sentences rather than to try to give answers to the topics - I am not seeking "legal" advice from anybody (I am already paying a lawyer for this). I am just asking for your honest opinions and your personal answers and experiences, so I can look at the issues from as many angles as possible. This not for my own personal benefit only, but hopefully for anybody else reading these pages - and I am sure there will be thousands of them in the long run - who might find something useful in the way they look at their own situations.