Called for an interview under caution and I'm worried.... Please help

[SMC1989]

thankyou for replies so far.

 

Is there a link towards the information regarding this time limit? This does seem very interesting to me.

[Stan Lee]

I don't have one to hand and it is complicated (I believe it is the Social Security Act 1992), but it runs something like '12 months from cessation of offending, or three months from discovery of enough evidence of an offence (by which they mean the IUC)'. I believe it depends on what section of law they would hypothetically be charging you under, and so I would say it is something best discussed with a solicitor.

[Guest amianne]

Appealing the overpayment and the decision to prosecute are two different things entirely. I have read about grim cases where an overpayment has been overturned after a person has been found guilty (which is perverse because the standard for a verdict of 'guilty' should be far higher than a balance of probabilities decision). That's why it is important to get the overpayment checked by an expert (in Welfare Rights or failing that CAB) and get it appealed as fast as you can.

 

I thought my dad was the only one in this country that that had happened to?

 

Years ago he was trying to start a business from nothing. His earnings were hit and miss, as was his hours of work.

He disclosed that he was doing this work and that he was making a loss every week for about two years whilst claiming Unemployment Benefit and Supplementary Benefit.

By the time the third year started he was starting to get established and signed off all benefits.

 

Three years later he heard that somebody from the DHSS was going round the town speaking to people about my dad, trying to find out if he had worked for them.

 

About 9 months later, he was got out of bed at 5am with someone knocking on the door. The police where everywhere.

He was arrested, the house was turned upside down as was his office and his car.

Mum was frantic with worry.

 

Eventually it went to Crown Court charged with benefit theft totalling £7,000. His solicitor told him to plead guilty as 'you can never win these cases'.

He did and ended up in Strangeways Prison for 6 months.

 

When he came out he appealed against the overpayment they were trying to get from him. He then became aware of how this had started. He was disclosing every 2 weeks a loss. Yet the DHSS said his turnover was what they went by!

 

At the tribunal he produced accounting records that clearly showed that he had worked few hours and that for those two years he had made losses which had been agreed by the Inland Revenue. They ruled that there was no overpayment and that he was entitled to the benefits he had claimed.

They were surprised that he had pleaded guilty!

[SMC1989]

Im sorry to hear of your fathers ordeal. I do think the way the DWP treats people is shocking and I think it is awful that they can hide behind 'balance of probability' in order to say that your overpaid. To be fair you can prove just about anything on the balance of probability.

 

Like everyone else I want to see genuine fraudsters bought to justice and totally agree with the relentless pursuit in these situations.

 

However it is awful that innocent people get caught up in the crossfire.

 

I have got my partner reviewing the legal bits of this as I havent a clue. He has spent the past 4 hours reading through acts and legislation and it would appear that there are timescales for prosecution however he says these are very woolly to say the least.

 

It looks like the time limit is 12 months from the cessation of the incorrect claim or 3 months from the establishment of enough evidence to prosecute (this does sound like it should be the IUC).

 

So technically as my claim ended on 11/06/2011 and my IUC was December 2011 then the time limit should have been 11/06/2012.

 

What is difficult to see is what should have happened by this time?

- should I be notified by this time?

- should a court be notified by this time?

- have they simply got to say that they wish to prosecute by this time?

 

this is very unclear. All I know is the time limit passed almost a week ago. and I havent received anything relating to prosecution etc..

 

There is also some question about what part of the act this relates to and what section your being prosecuted under. He has read that if its section 112 then the time limit applies. But if its section 111 then it may not. This is not clear.

[ims21]

Two threads merged

 

Please keep to one thread for this issue so that the whole history is easily available to those who wish to help

[SMC1989]

During the "overpayment" period I can honestly say that on no occasion did anyone other than me and the kids live or sleep at the house and the DWP have offered no evidence to suggest otherwise.

 

Ultimately I just want this to be over.

 

I will fight this for as long as is possible though.

 

Even the official DWP FORM A1 INCOME SUPPORT CLAIM is misleading:

 

It states:

We use partner to mean ● a person you are married to, or a person you live with as if you are married to them, or ● a civil partner, or a person you live with as if you are civil partners.

Well we arent married. We arent civil partners and we did not live together. He can prove he lived elsewhere.

DWP have offered no proof that we lived together, quite simply because we didnt.

- Car Insurance that he forgot to switch to his new address

- Yeah admittedly very stupid but everyone makes mistakes and we had gone through a separation and he is woeful with paperwork anyway.

- Its not evidence though is it?

- 2 Drive-Bys where his car was present.

- They havent said what amount of (i guess if any) drive-bys his car wasnt present.

- The one occasion was because I was ill and couldnt look after the kids. One of whom was 14 months old at the time. I called him at around 3am as I had no

one else to turn to (I have no family). He arrived by 4:30am and then left by around 8:40am to drop the 6 year old off at school and then went to his own

place.

- The other occasion is totally false. His car was apparently at the address at 6:55am. Interestingly He was working 14 miles away until 7am at the time. He has

checked crown court approved notes to suggest he was heavily dealing with an incident up until around 06:35 in one location 2 miles away from his normal

work location. He would have got to this location by 6:45am and then got stood down from duty at 7am. He would then have to changed out of work clothing and

walk 100 metres to the car. So this would take 5/10 minutes to get to the car. Meaning at the earliest he would be at the car by 7:05am.

- How do you start a 14 mile journey at 7:05am and arrive at your destination to be parked up at 6:55am?

- this is all proven and documented so has to be a lie by the DWP investigator.

[Stan Lee]

I thought my dad was the only one in this country that that had happened to?

 

It was something I read over on Rightsnet; I never bookmarked it (I wish I had done). I've had a look but can't seem to source it, so I'm relying on memory. The case went something like: a guilty verdict had been returned, and after this, the tribunal found the defendant had not been overpaid. On appeal to a higher court, the guilty verdict wasn't quashed because the court that had passed the original sentence was deemed to be a 'higher' court than the tribunal.

 

Please don't take that as gospel; I could be getting my facts wrong. But that, if I remember, was the jist of how that particular case unfolded.

[house3]

u poor thing what a nightmare you been through all that stress,i wouldnt of got a solicter though,they to expensive and didnt win your case for you ,wasnt there anywhere you could of got free help from.?..ANYway keep on fighting and appealing,and good luck with it....

[Stan Lee]

u poor thing what a nightmare you been through all that stress,i wouldnt of got a solicter though,they to expensive and didnt win your case for you ,wasnt there anywhere you could of got free help from.?..ANYway keep on fighting and appealing,and good luck with it....

 

The rules surrounding legal aid seem to be somewhat ambiguous, but nevertheless, although the solicitor has been expensive, he or she has done their job by receiving prior disclosure as to the basis of the investigation and has then advised their client accordingly. The case has not been called to trial, and therefore, there has been nothing for the solicitor to 'win'. Welfare Rights will often write letters, speak to investigators, and attend appeals, but they are not lawyers, as their remit falls within the 'civil' end of the spectrum.

 

My suspicion is that having a solicitor on board has probably been very beneficial for the client; it will have made something of a 'statement' that the defendant is willing to exercise their legal right to counsel and will therefore not necessarily be 'easy pickings'. Fraud Investigators who have posted on this site have said that they do not encourage people to lawyer up as, why would they do something that might harm their own case? The implicit inference is that having solid legal advice (well grounded in benefits law)is a necessity for the defendant, a point borne out when you read the writings of Neil Bateman or Andy Malik.

[SMC1989]

I'm in no doubt that my solicitor has been invaluable. My partner is quite well versed regarding PACE and many aspects of law. I get very nervous and he feared that DWP may twist and trick me into saying something I haven't done. So he got me in touch with the solicitor. It's expensive but the disclosure was obviously useful and he's been very supportive.

 

My concern is that this still isn't over. I'm going to be terrified waiting for the letter telling me I'm being prosecuted.

[marcander]

Hi there, There are time limits on dwp and council prosecutions. These time limits are based on the European Court of Human Rights ruling that undue delay in prosecution might cause distress unfairly. Our courts must have regard to the ECHR ruling and so the Social Security ACT 1992 s112/s116 says that prosecutions under that act can be brought within 3 months of when the evidence comes to light or within 12 months from the committing of the offence. Bear in mind that in a case of mis-declaration on the original claim form then that is the date of offence but with failure to report a change of circumstances the offence is a continuing offence until the overpayment ceases.

 

Important too, in calculating the amount of overpayment (and this is where 67% of DWP/council overpayment calculations are incorrect, in being too high) that where the dwp is claiming repayment then if that benefit had not been paid at the time then your own capital and income would be reduced accordingly as you would have used your own money instead. This has a diminishing or reducing effect on the overpayment amount.

 

If in your case they had their evidence in December then clearly they are out of time on the 3 month rule but having not read through all of the thread I don't know when you might be considered to have last committed an "offence" under the 12 month rule.

 

It is not impossible for the DWP to attempt prosecution outside of the 3 month/12 month but judges are alive to the ECHR ruling and should uphold it. The judge can rule that DWP evidence is out of time and inadmissible if prosecution is unduly delayed.

 

The DWP/Council officers are not the decision makers on prosecution. The decision is made to prosecute or not, by lawyers. The case must have a better than average chance of successful prosecution. The case must be in the public interest. They must prove beyond reasonable doubt that there was dishonesty (intent). The out of time factor would be a consideration in whether or not to prosecute because a judge would not take kindly to the undue stress caused. Don't forget you are innocent until proven otherwise. The DWP wins most cases because they take on only the more likely successes. The statistics show fewer prosecutions but higher success rate. Don't forget, they too are answerable to the government and the taxpayer. Prosecutions are expensive whether successful or not. So they just go for the most likely winners and the figures impress everyone.

 

I am not an expert but I certainly would not just accept whatever they say. Everyone is entitled to be treated fairly, at least in this country. So bear in mind that in situations like yours we hope that nothing happens but we fear the worst but the truth is normally somewhere in between.

 

So try not to be too downhearted because there are things that can be done when you know what if anything their intentions are.

 

Keep us up to date.

 

regards

 

M.

[Stan Lee]

Thanks for this, although, have you posted this on the correct thread? It reads like a response to SMC1989's thread (although please forgive me if I am wrong).

[marcander]

Yes I think you are right.

 

M.

[SMC1989]

I do hope it will be sorted soon

[maroondevo52]

Yes I think you are right.

 

M.

 

Posts moved over to SMC1989'S thread.

Edited June 17, 2012 by maroondevo52

[SMC1989]

The other half seems to think if they were planning to prosecute they'd have interviewed him being as they are questioning where he lived, his car allegedly being present and him forgetting to alter the date of his car insurance.

 

They've not spoken to him at all.

[sallypotter]

Is he claiming any benefits?

[SMC1989]

No he never has. He's very against the idea. That's why this situation is so obsurd

[sallypotter]

That explains why he's never been called for IUC.

[sallypotter]

Also i wouldn't call him your partner. If he's your partner no matter where he lives you are a couple.

[SMC1989]

Hi, I think you may have the wrong end of the stick.

 

At the time in question, we were not together. We lived apart and He has a multitude of proof of living a totally separate life.

[sallypotter]

Yeah i understand that.

 

Are you now back together again?

[SMC1989]

Yeah we are. Hopefully this situation will be over soon. It's dragging ridiculously

[SMC1989]

Obviously the overpayment decision will be challenged as its wrong. But does the time limit from the court of Human rights mean that prosecution is now out of the question?

 

Claim ended 11th June 2011. (we've passed over 12 months from this)

 

Interview under caution was December 2011 (so we've passed 3 months from this)

 

(unless the DWP are in the habit of stating they have recd evidence after this date just to get around it)

[sallypotter]

I know someone that was interviewed in January 2010 and didn't have their first court appearance until March 2011 and their last in September, 2011 so i think you are being hopeful that you are out of time.