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Wrong Prosecution for Benefit Fraud - Advice Please


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Hi there,

 

I was hoping for some advice.

 

I am disabled, and 3 years ago with a young family neither my husband nor I were working for a short time, and my husband claimed Carers Allowance in respect of me.2 months later I found pt work, and a couple of months after my husband found work to fit around caring for us all, and we wrote to DWP to say he wanted to withdraw his claim for CA as he was working.

 

We also started using some childcare at the same time and wrote to HMRC to inform them of the childcare & additional work.

 

Childcare was about £400 a month, and CA was £323, so we were expecting about the same amount in from WTC as we had been getting in in CA.

 

We were also getting HB. When I started work we told them straight away, but when my husband started work I delayed informing them until we got the Tax Credit award notice through, so we would have all the proof they needed.

 

Typical HMRC and the notification never came through, and about 7 months afterwards (I know, I know) we got a HB renewal form, so I filled it all in as honestly as I could - including stating when my husband started work.

 

I got called in to IUC for not telling HB earlier about his work. I explained that I knew HB was the last means tested benefit which is why I delayed informing them until we had the Tax Credit award through. I simply forgot about it, assuming that the letter from WTC through the post would remind me. Payments in to my account (where all benefits go as my hubby is crap with money!) were about as I expected so I didn't think anything of it. I explained it was a total oversight on my part, and apologised. At the time, I didn't know that childcare payments are disregarded from income for HB, and although I told them about the childcare they never included it in the overpayment calculation, even after I found out it should be and asked them. We paid all the overpayment back quite quickly. I was then 'invited' to accept a Formal Caution under S. 112 (i.e. no dishonesty). They said no-one would see it other than a judge if I was convicted of another benefit fraud offence. It even states on it that it will be cited "in the event of conviction".

 

At the same time my husband was called to IUC regarding Carers Allowance. We had no idea until then that we were still getting CA! I had calculated roughly what we should be getting in from work & bens, and we were getting roughly that amount in. I don't check my bank statements in detail every month, but even if I did, none of the benefits are named, and the WTC childcare payment I was expecting was almost identical to the CA amount. That's when I realised we weren't getting the extra WTC but had been being paid CA for 9 months!

 

Before my husband went to the IUC we wrote explaining that we had written to confirm my husband had started work, and sent a copy of the letter, and that we hadn't realised we had been being paid CA, and that if there had been an overpayment we were happy to arrange to pay it back.

 

At IUC my husband said he knew nothing of the benefits system & I handled all our claims and money.

 

The investigator contacted me a number of times, and we spoke at length about the issue, I confirmed that I handled all the money & benefits in our house. Then I was called for IUC, and I initially refused asking them to provide more detail of what offence I was suspected of and what evidence they had. They never provided any information. This went on for a year, and the investigator kept saying I was only needed to IUC to confirm what my husband had said to close the case.

 

After so long, stupidly, I went to the IUC. (We couldn't afford legal representation, and as we were working our income was above the Legal Aid threshold). I made sure the fact that we had spoken at length before was recorded on tape and basically just said everything I've said here. My IUC was in March this year - more than a year after the start of the investigation.

 

Last week we both received a Requisition to answer charges - having been charged under the Fraud Act 2006 for dishonestly failing to disclose information we were under a legal duty to disclose. Included in the Advance Information is a copy of all the HB investigation against me, including the caution!

 

Now, as I see it there is no case against me, as I had no legal duty to disclose information regarding my husband's claim (and R v Tilley would apply if they were trying to say I 'caused or allowed' him to fail to notify). Surely, if I have no legal duty to disclose it can't fall under the Fraud Act, no?

 

Further, I think that the R v Dickinson showed that simply looking in their records and having no record is not sufficient to reach the criminal standard of proof against my husband as we have always both maintained that we sent a letter and I think have a perfectly credible explanation as to why we didn't notice the extra money, as it wasn't actually extra! (unlike Dickinson, who actually carried on being paid HB & IS while working).

 

I have written to the DWP solicitors explaining all of this, and why I think their case is rotten and should be dropped.

 

A couple of other important things:

 

The total overpayment they are claiming is £2990, but they found out about my husband's work (at least) a month before they stopped paying the CA, and there were 3 months when work-related travel & childcare payments brought applicable earnings down below the threshold, so I calculate the overall CA overpayment is well below £2000. Also, the HB entitlement for the same period has been underpaid by about £1750 because they never counted the childcare in calculating the (already repaid) overpayment. - and that says nothing about the £3000 in WTC childcare element entitlement for the same period! - and we have already paid back £1000 of this. In all I calculate an overpayment of less than £300 against CA / HB, where we have repaid £1000 (so they owe us £700 of this repayment back!) and an underpayment of £3000 WTC (but £1950 of it would have been due to HB if we'd actually got it). All in all from LA / DWP / HMRC a net loss to the public purse of, erm, minus £750 + £700 wrongly paid back, so they should owe us a total of £1450, and they're taking us to court!!!!!!

 

We never received a statement of the decision, and so never got the info on how to appeal, all we got was Debt Management letters telling us how much to pay back. There is a decision letter in the Advance Information dated last June that we never got, as we would have appealled if we had been told there was a way to appeal!

 

Since then I've done loads of research on the rules, regs and case law, and I think we have a really solid case to defend this. The trouble is, I work part time in quite a senior role, and handle a large (£1mill) amount of public money, including signing off on payments. I haven't been there a year yet and so I have no statutory employment rights. If these charges are read out in an open court I will almost certainly lose my job. My husband has more protection, but still works with vulnerable people and so his job is risked just by Fraud charges. Everyone knows those accused of Benefit Fraud are guilty -even when proven innocent!!

 

This year we will have a good income, and next year won't be entitled to any means-tested help (even Tax Credits), so long as we are able to keep our jobs!!

 

I have spoken to a couple of solicitors. One was great, and affordable, but some digging showed he's a BNP supporter, so he's out. The others have been slow and useless, and even when I cited case law of Tilley & Dickinson they couldn't be bothered to look it up, and suggested pleading not guilty and taking it to crown court - as if they hadn't heard us saying how important it was to our careers to not even be charged with Fraud! So while we would be willing to pay for a good solicitor, we can't find one.

 

We aren't entitled to Legal Aid, and would have to pay the maximum £1300 a month for 5 months for legal representation if it goes to Crown Court.

 

Now we're just waiting to hear back from DWP solicitors to see if they have seen the light, but I'm worried if they're willing to bring charges when there is no legal duty & no case to answer for me, and no adequate evidence for my husband, that they may well just ignore our letter to help reach their target of cases prosecuted!

 

Any and all advice on how to just make this go away (we don't even care about getting the money back) would be really, really, really welcome.

 

Thanks

 

grrrrrrr

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One thought about the carers allowance. The letter you sent covers you for initial disclosure. However I'm sure I've read something about a continuing duty to disclose. I think this means that you should have ensured that the letter was received and should have noticed something was wrong when you continued to receive payments. Hopefully someone else will have more on this.

 

If it is more than 13 months since the decison was made an appeal may not be an option anymore. There may be other options but you need to get advice on this.

 

If you do get an appeal in then technically the appeal should take precedence over any court case but this rarely happens. There is case law on this.

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Thanks for the reply - do you have any links for case law on appeal taking precedence over court action? All the case law I can find points in the other direction on the instinctively flawed thinking that the criminal court is the higher authority (even if the result of the appeal is that the overpayment is nil - I have seen examples of people having criminal records for non-disclosure even when the appeal has shown an underpayment!).

 

I've never seen any reference in the regulations or case law to continuing disclosure requirements, quite the opposite; but I think even if there is a requirement for this, then I think we have a fully credible defence for this as the expected Working Tax Credit increase would have been less than£10 per 4 weeks different to the Carer's Allowance payment, and the benefits are not named on bank statements - this is why we didn't notice we were still getting CA, as I just assumed the payment was the Tax Credit payment from HMRC we were entitled to and had applied for!

 

We have now had the Fraud Investigation Service forward our case to the appeals service, which I have taken as an acknowledgement that the Advance Information was the first notification of the overpayment decision. I think this might be significant in the whole thing, as they can hardly use double standards on us with regard to serving notifications (their claim they sent it holds but ours doesn't!). If they acknowledge that all our correspondence asking for the decision in writing over the last two years went ignored then we have a stronger case to show they ignored our original notification, and when the overpayment calculation is shown to be wrong - if this happens prior to court - then we will be well below the prosecution threshold anyway, which might help change their minds.

 

I'm now just waiting for a reply from the Solicitors to our letter and desperately trying to get all the evidence together to support the appeal ... trying to find childcare bills from 2.5 years ago is a nightmare. Data Subject Access Requests all 'round!

 

Thanks again.

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There is often a reluctance to stay criminal proceedings pending civil proceedings but there several authorities in support of the assertion including:

Mote v (Secretary of State for Work and Pensions & Anor [2007] EWCA Civ 1324 (14 December 2007)

In this case, the court considered an appeal concerning a refusal to adjourn civil proceedings pending the outcome of criminal proceedings. At paragraphs 40 and 18 of the judgement, the court supports the tribunal chairman’s reasons for not adjourning, which included “As the issue of entitlement would be relevant at least for the purposes of mitigation in the event of a conviction, it was desirable that that issue should be authoritatively determined by the body to which it had been entrusted by Parliament”

In commissioners decision CH/3744/2006 Commissioner (as he was then) Mesher observed (at para 14): “In my no doubt unrepresentative experience as a Commissioner, the standard of the examination of questions of true entitlement to benefit in criminal prosecutions is often woeful, so that claimants with some kind of case will often be better off getting the expert evaluation of an appeal tribunal”.”

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Brilliant, many thanks.

 

Just waiting on what the solicitors come back with, but this will be very useful if needed, obviously hoping they just drop the prosecution on the points of law - regardless of the overpayment - but need as full an arsenal as possible!!

 

Thanks again.

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Lets flip this round & then maybe you will see why this has gone to court.

  1. - It's your 2nd offence. So the amount of the overpayment is irrelevant.
  2. - How many letters have gone missing? The one you sent in to close the CA claim, the tax credit notification letter, the CA disallowance letter. Not to mention the CA uprating letter & the change of circs reminder letter, which may overlap the overpayment period. I'm not saying it's not true, but it does make your story sound implausible.
  3. - You have said you have a very responsible job in which you are responsible for £1million in public money. But you have failed to keep track of you own income & where it is coming from. Again I'm not saying it's not true, but how does it look?
  4. - You've said “none of the benefits are named” on your bank statements. Are you sure about that? I've ploughed through 100's of bank statements whilst working as an investigator & it's normally very easy to work out what the payment is. It is normally something along the lines of DWP CA (type of benefit) AB123456D (nino) or a derivative of that. Tax credits are paid by the Inland Revenue & are therefore listed differently. A quick look back at your statements will prove this easily enough.

These are all things I would have questioned for starters & I'm sure there would be more to follow depending on your answers. I know you think all Fraud Investigators are “nasty, underhanded, deceitful people” but it is there job to question things & pick holes in your story when it doesn't ring quite true.

 

I was in court a few weeks ago as a witness on one of my old cases that sounds fairly similar to yours. It involved different benefits & was for a longer period with a larger overpayment, but the excuses were the same (& then some). In the end at the 2nd IUC I'd picked so many holes in her story that it sounded ridiculous.

 

Also you've got to remember that to get as far as court your case has gone through the fraud investigator, a decision maker, an overpayment calculator, the fraud team manager, back to the investigator for prosecution preparation, a prosecution checking team & finally the solicitors team. It could have been rejected at any point & trust me some sections seem to love to come up with any excuse to reject a case.

 

This is not a dig at you, although judging from your previous responses to me I don't think you'll believe that. I'm just telling you as it is & hopefully you'll see why it has turned out this way so far!

 

JJ ex nasty, underhanded & deceitful

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Fwiw, JJ [allegedly ex-nasty, underhanded and deceitful], the advice I've seen you give on the forum has been balanced and impartial, and often helpful to people in distress.

 

Grrrrrr, I hope you get a just outcome, sorry I don't have the knowledge to help you.

 

HB

Edited by honeybee13
Stupid typing.

Illegitimi non carborundum

 

 

 

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Jabba,

 

Many thanks for your incredibly useful insight in to how the case looks from the eyes of an investigator. It has really helped me to frame my responses to the DWP prosecution while we desperately search for a properly experienced (and affordable!) solicitor.

 

I have managed to get the LA to review the Caution and accept that there is a case to consider if it was appropriately administered, and also to go back and review the actual HB overpayment calculation as we have managed to find evidence in the IUCs that the Investigator blatently lied about writing to third parties to confirm my statement. We have wheels in motion to apply for a Judicial Review of the Caution if the LA don't rescind it quickly, and I actually managed to get the DWP prosecution solicitor to accept the importance of having sight of a verified analysis of the net loss to public funds before being able to make a decision about staying / delaying the proceedings. The CA overpayment has also been referred to the appeals section, so the total figures will be revised and I'm confident they will fully vindicate our evidence as being honest and truthful.

 

The irony is, in the prosecution documents they have dates and modes of communication (telephone v email) wrong and an Investigator recorded as lying about sending a letter when they are accusing us of lying about sending a letter!!

 

- actually one part of the prosecution summary also states that because in our (unrepresented) interviews we are unable to recall who posted a letter some 12-24 months previously this is clear evidence of dishonesty. Seriously! Who posted the leccy bill payment in your house for the first quarter of 2009, anyone, anyone?? Looks a lot like clutching at straws to me.

 

The personal touch, I hope, has helped, writing personal letters and speaking on the telephone with the prosecutor and head of fraud has at least got the wheels in motion.

 

While I massively appreciate your perspective in helping me to find an angle to approach them with, Jabba, I'm afraid my opinion of Fraud Investigators on the whole has gone down having discovered the lies, inaccuracies and general incompetence on reviewing the evidence. You may well the exception, rather than the rule! :-)

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Jabba,

 

Many thanks for your incredibly useful insight in to how the case looks from the eyes of an investigator. It has really helped me to frame my responses to the DWP prosecution

 

Fair enough, but don't forget that is just a few quick points I came up with from scanning your story. The investigators will have had other info available, they may not know the details you mentioned about your job & therefore could be looking at things from a different angle.

 

Ironically it's your husband who has totally dropped you in it when at his IUC he told them he knew nothing of the benefits system & you handled all the claims and money. You have then confirmed this at your IUC & given then 2 prosecutions for the price of 1.

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When I spoke to the prosecutor today, he didn't seem to have read everything very thoroughly - he's missed lots of really important defence stuff. Talking directly to him having read your post actually just really helped see it from a different perspective, where up until then I think I'd probably just been too righteously indignant and in that had failed to get across some slightly complex arrangements that make perfect sense when you understand them, but while being constantly interrupted in interview I was never able to actually get it said.

 

My husband simply told the truth. He genuinely knows nothing about the situation, and wouldn't have even known what the benefits are called, let alone how much they pay or what the entitlement is!

 

... "2 for 1" ... no, no target culture there, eh? ;-)

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Just a quick update ...

 

After proposing a Judicial Review, it took the LA just 4 days to revoke the Caution, admitting it was 'invalid and misleading' and they are marking the investigation as 'not proceeded with' acknowledging it is now time barred (i.e. not dishonesty).

 

We also have found a certified expert to go through everything with a fine toothed comb, and it looks like they will be able to confirm that contrary to the DWP assertion of an almost £3k overpayment, there was in fact a £7k UNDERpayment, so a net loss to public funds of, erm, nothing and they owe us £4k (£2k of which we might actually be able to get back - yay!).

 

No confirmation that they've stopped the prosecution yet, but then it is a Saturday & I only just got the letter confirming the revocation of the caution, so here's hoping for some top notch news on Monday.

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Well done for your hard work, grrr! It is so easy to let paperwork get muddled- let's face it we have all had letters from the DWP/HMRC go "astray". Funny how they get nasty when one of ours does.

 

I really respect how you have fought these decisions.

 

And thank you to Jabba for getting a different perspective on the issue. Very useful.

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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Well, we're not quite there yet, but spoke to the prosecutor today and he asked me to NOT instruct a solicitor or expert accountant to write a full report for 2 weeks while he investigated the net loss to public funds figures ... to keep the costs I can claim to a minimum. Total change in his approach today, which was refreshing!

 

I said I wouldn't wait 2 weeks unless he agreed to postpone the date of the first hearing, and so he said he'd tell me on Friday what was going to happen.

 

My optimistic guess is he's going to check whether the overpayment was handled correctly and if not, drop the charges.

 

The best thing was an email from the JCP investigation team leader who said he could "absolutely and categorically assure" me he'd sent the overpayment decision (but only attached the debt management letter as proof!) ... to which I got far too much petty joy out of responding that I could "absolutely and categorically assure" him that we had sent the notification.

 

... My husband wouldn't let me add the comment that if DWP had changed its policy to accept "absolute and categorical assurance" that communication was sent as legally sufficient to prove it was sent, then would he send me a copy of that, as the prosecution department had clearly not got that memo.

 

Spoilsport!

 

Now I'm looking in to possibly taking civil action against the LA to recover the Housing Benefit they took as repayments for an incorrect overpayment decision. They say the appeals time limit is up so I can't use the appeal process ... but I figure if LAs can use the civil courts when the statutory instruments won't cover it, then why can't we?

 

Still not counting my chickens, but it does look like the end is in sight - I just feel sorry for people who aren't as geeky as me to be able to discover the faults in the whole process. I can't imagine how many people are just advised to plead guilty even when they have a good defence & the calculations are wrong. ... with even more restrictions on legal aid after the 'fixed fee' fiasco is not going to make the situation better!!

 

But I have registered my interest in becoming a volunteer CAB advisor, so if we make the prosecution go away, I'll soon be spending one of my mornings off in the CAB office using my geekery for the common good. (Although, sadly won't be at my local CAB as it's not wheelchair accessible - but that's a whole other rant!).

 

Will update on Friday ...

 

(I hope with good news!)

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So, a final update ... all charges dropped on the grounds that there is insufficient evidence to demonstrate any dishonesty, and no public interest in pursuing the matter as there was no net loss to public funds. ... Now I get to claim costs for my hours in getting this far.

 

Phew! :-)

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Well done, grrrrrr! I am so glad they have finally admitted that there was no intention or actual loss. I hope you can get all this sorted so you finally get what seems like in the end you are owed, not the other way round.

 

The sheer amount of letters sent to them which they lose and the amount of letters they "send" which never arrive is abominable. If they got this sorted it would save many people an awful lot of bother.

Nationwide-A&L-Halifax 1-Student Loans Company-NatWest-Virgin Media-Link-Capital One ALL WON!

Thames Credit -statute barred sent 13/11/08

BCW- prove debt letter- 14/08/08

Apex- CCA 14/08/08

Redcats UK- SAR 14/04/09

Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

Capital One/Debitas- now with Lowells

 

Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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  • 4 weeks later...
  • 2 months later...

Dear grrrr,

I hope everything worked out for you, I really need some geeky help if that is possible.

I have received a court requisition for mid April because I am being prosecuted for claiming Carers allowance whilst working and earning above the limit, contrary to section 112(1A) of Social Security Administration Act 1992. The situation is that I applied for CA because my son receives Disability Living Allowance. I applied for CA before I started working and was notified that I was eligible to receive it in July. I didn't read through eligibility and assumed CA was paid to the person looking after an individual who receives DA at middle rate or higher. I was told to apply for CA by the nurse who carried out home visits on my son, she said I would be eligible as my son receives middle rate DA. I did not lie on the form nor did I make a renewal. I received three letters in the time I was claiming CA...I did not thoroughly read any of them!! This was my fatal error. So I didn't realize I should inform them about work. I simply thought CA was based on my son getting DA.

 

Upon starting work as a teaching assistant I immediately notified Inland Revenue (as I was getting WTC) and I told them that I was also getting carers allowance. I informed them of the amount of CA. after 1 year of working we were no longer eligible for WTC due to the amount my partner and I were paid added to CA.

 

When I was notified of an investigation I got really worried and attended the interview and told them that I was unaware of the need to inform them about my work but I did inform Inland Revenue. I have also started paying back the over payment amount. BUT I am now to be prosecuted.

 

I have 1 year left before I qualify as a teacher, a conviction of fraud will mean I am unlikely to get a job. I am really worried, I have worked full time and studied part time and been a parent to two young children. I feel like I am about to loose everything I have worked so hard for, because of a MISTAKE. I have spoken to a solicitor and have been informed that this case could cost 5-6k if it goes to crown court. I have never been in any trouble with the law and I don't know what to do.

Please help..

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Firstly a DWP FIS case does not get this far unless the departments legal section are confident of getting a positive result.

 

Unless your solicitor can find a reason to stop the prosecution then you only have 2 choices. Plead guilty & end up with a criminal record or plead not guilty & take your chances in court.

 

Not the answer you were looking for I'm sure, but I'm afraid that's the reality of the situation.

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Dear grrrr,

I hope everything worked out for you, I really need some geeky help if that is possible.

I have received a court requisition for mid April because I am being prosecuted for claiming Carers allowance whilst working and earning above the limit, contrary to section 112(1A) of Social Security Administration Act 1992. The situation is that I applied for CA because my son receives Disability Living Allowance. I applied for CA before I started working and was notified that I was eligible to receive it in July. I didn't read through eligibility and assumed CA was paid to the person looking after an individual who receives DA at middle rate or higher. I was told to apply for CA by the nurse who carried out home visits on my son, she said I would be eligible as my son receives middle rate DA. I did not lie on the form nor did I make a renewal. I received three letters in the time I was claiming CA...I did not thoroughly read any of them!! This was my fatal error. So I didn't realize I should inform them about work. I simply thought CA was based on my son getting DA.

 

Upon starting work as a teaching assistant I immediately notified Inland Revenue (as I was getting WTC) and I told them that I was also getting carers allowance. I informed them of the amount of CA. after 1 year of working we were no longer eligible for WTC due to the amount my partner and I were paid added to CA.

 

When I was notified of an investigation I got really worried and attended the interview and told them that I was unaware of the need to inform them about my work but I did inform Inland Revenue. I have also started paying back the over payment amount. BUT I am now to be prosecuted.

 

I have 1 year left before I qualify as a teacher, a conviction of fraud will mean I am unlikely to get a job. I am really worried, I have worked full time and studied part time and been a parent to two young children. I feel like I am about to loose everything I have worked so hard for, because of a MISTAKE. I have spoken to a solicitor and have been informed that this case could cost 5-6k if it goes to crown court. I have never been in any trouble with the law and I don't know what to do.

Please help..

 

See if you qualify for legal aid on the following site. Lets get solicitors on side & fight back, stop all this bunching out right benefit cheats with people that dont genuinely understand how benefits work! Bring on the all in one benefit system I say, wont help us, but will help people in the future hopefully...

http://www.communitylegaladvice.org.uk/

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to jabba jones,

thank you for your response. I do believe they have a lot of evidence against me, primarily because I told them everything they needed to know. I've just read some points on the 1992 Act and it states that; where appropriate intention should be proven. can my solicitor argue that I didn't intend to deceive the DWP because I informed Inland Revenue about work and CA. The Act also states that I knew the change of circumstances would affect entitlement...but I didn't KNOW.

 

Thank you for your help.

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