Income Support/Carers Allowance dispute threat of jail

rogerblack

I would encourage him to seek professional advice - perhaps paid.
29K is (even if fully repaid now) well over the threshold at which criminal prosecution may happen.
Following a conviction for benefit fraud, in addition to possible jail-time, they can take criminal assets recovery proceedings.
This can enable them to for example, sell his only house or car, which would never normally be permitted under normal debt recovery.

The overpayment needs to be properly calculated.
Depending on the exact details - the overpayment may be wholly unrecoverable (unlikely) - reducible to a much smaller amount, or in actual fact right.
You need someone who can independently calculate these values.
It is important to do this fast, as what may happen is that they may rapidly confirm their decision, start debt recovery proceedings - and at the same time start a criminal prosecution.

http://www.rightsnet.org.uk/forums/viewthread/241/ - is a relevant thread.
Criminal courts are not very knowledgable when it comes to benefits law - and there is a strong risk that they will take the DWPs word for the overpayment amount.
If this happens - and there is a conviction - recovery proceedings are _NOT_ limited to this amount - there can be a penalty element.
In addition to conviction and possible imprisonment.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/273587/dmgch25.pdf is also relevant.

Depending on the details - a payment of 1000 pounds may not actually disqualify you for IS.
This is a complex area of law.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/251259/dmg-vol3-consolidated-version.pdf
15475 - if he has ceased any activity in the field, it is unlikely he is a self employed earner.
Similarly - he is not an employed earner.

My understanding is that this _MAY_ mean that irregular incomes are averaged over the period they happen. (something that would not be the case for SE or employed earners).

If the income for example, is quarterly, then it would be treated as a quarterly income, and divided by 13 weeks - so as long as the income is below CA limit*13 - he's OK.

He needs actual professional advice - probably paid - from a solicitor skilled in benefits work and overpayments.

First thing he needs to do is to request a statement of reasons for the decision that he's been overpaid.
Then probably formally appeal, but professional advice is a really good plan.

bll78

I am all for prosecution for benefits fraud, people move in their partners under the radar, claim to be more ill than they are, working and signing on etc..
Lets be honest though if he had have told them about his income the most he could have said was I don't know my income for now, I'll be able to tell you in 3 months once the quarters royalties come in. Then the benefits agency would spend a fortune administering his case every quarter starting and stopping benefits left, right and centre, no doubt leaving the family incomeless at points, for an average income of £2,000 a year (maximum £76 a week minimum £2.50 a week £1000 and £30/13). Where the amount pushed him over IS or CA they'd still have been paying benefits, a family of 4 couldn't live on £76 a week and that's the absolute maximum he's earnt. They'd just be swapping him onto one benefit to take him back off it the following quarter when his royalties meant him getting £2.50 a week and then starting IS and CA, to swap it back again 12 weeks later. I bet administering this cost more than the £2,000 income (averaged) he got in the year. Or he'd go and get a job for 12 weeks and tell them to sort out his mothers care which would cost the government far more than the £59 CA a week he gets.

What would be far better would be them to do some sort of WTC calculation where they could amend his benefits in the following year to reflect his income total from the previous year.
As per the OP post 'he told them some quarterly amounts might only be £30 or as much as £1000.' but the DWP couldn't work with this so in the end he didn't bother. The system needs changing to make people able to be honest without being losing money upfront because the DWP can't cope with it.I wouldn't be at all surprised that if he had of been able to give them his figures upfront, that he wouldn't have been on more benefits, with a top of of CTC etc..

xylophone

The royalties are certainly income and taxed as such - I have an acquaintance who has received them for a number of years and they are declared annually on the SA form.

rogerblack

xylophone wrote: »

The royalties are certainly income and taxed as such - I have an acquaintance who has received them for a number of years and they are declared annually on the SA form.

It's important to understand that this is quite irrelevant.
You do not care what the tax position is with respect to these earnings - you care what the benefits law position is with respect (in this case) to income support.

Benefits, taxes, and council tax may have quite different views of what earnings are.
You cannot simply assume earnings for one purpose are earnings as defined in other legislation.

cattie

Normally if a means tested benefit has been overpaid via fraud or failing to inform, a person will be invited to attend an interview under caution.

Once DWP have reached a decision on the case, they write to the claimant with their findings & what action, they will be taking, along with a detailed list of the overpayments

When a sum of money needs to be repaid to DWP they will usually detail the amount that needs to be repaid & state whether it is acceptable to pay in installments or required in one lump sum by a certain date.

They do not seek to cause undue hardship to people making regular repayments & if an amount has been set & the person thinks it is more than they can really afford, then they need to contact DWP who will send a form for the claimant to fill out with details of full income & expenditure. Based on this, the DWP will then contact the person to let them know if they agree with a revised payment or not.

If the person with an overpayment is claiming any other DWP benefit, including state pension, the overpayment installment is normally deducted from that until such time as the overpayment is repaid. I believe the minimum acceptable amount is one third of benefit income when monies are recovered this way.

Failure to comply with the wishes of the DWP regarding repayment will very likely result in a court hearing & possible prison sentence.

FBaby

Benefits, taxes, and council tax may have quite different views of what earnings are.
You cannot simply assume earnings for one purpose are earnings as defined in other legislation.

Indeed, what a silly think to assume that they could be all defined similarly

nad1611

Thank you so much for all these ideas and it's great that for the most part people have looked at the problem and not the morality of this man's actions. Whilst here I have to say I don't think he should get away with it and I absolutely don't condone it, but was simply looking out for a friend which I think most of us would do. So it gladdens me to see some really sound advice. I have since earlier found out he is meeting with a benefits specialist solicitor on Monday. I will pass on this advice anyway.

Lioness Twinkletoes you didn't bother me at all, it's all good and as your life needs a little entertainment I'll be sure to let you know when it's in the papers!

ArtoDeeto

nad1611 wrote: »

Now the DWP have got wind of it and are threatening legal action and have told him he owes about £29000 ad if he doesn't pay it, he could be facing a jail sentence.
I'm wondering if whilst completely accepting his wrong doing is there any chance here for a repayment of a small amount over time to repay what he owes rather than the jail sentence leaving

Well your FRIEND can try - on the big plus he has admitted guilt. The jails are already overcrowded anyway so don't get too wound up.
UNLESS he has a previous record of course :-(

Morglin

Your friend needs to find a solicitor that specialises in Benefit law to help him sort out what was paid, in royalties, when it was paid, when overpayments occurred, and how much they were, with the DWP and your friend..

Once it is established the exact amount of overpayment, which may well be less than the whole amount of benefits, it can be sorted out.

Lin

Housing_Benefit_Officer

Sounds like they have stopped the benefit for the entire period hence overpayment but they should use the underlying entitlement rules to calculate any entitlement taking the Royalties into account. This would then reduce the overpayment.