Carers allowance overpayment

[Inevermeanttobebad]

Hi I really need advice. I feel suicidal, I am so scared. I messed up.I got a summons to appear in court in a months time.

I claimed cares allowance when I wasn't working and my two sons got registered as disabled. Then I started to work, in the back of my mind I had that I couldn't work more than 16 hours. Anyway I worked for less than 10 hours for a while and gradually my hours got increased. I kept claiming carers allowance, I am very bad with money, al long as I can pay my bills I don't really look at my bills, letters or statements, until they are red. During this time, my daughter was born with meningitis, and took 2 years to recover, then my son developed epilepsy and ended up in a coma, and had huge issues at school. I worked on getting him a statement all on my own and did eventually.He's now in a special school. My other son is a chronic asthmatic and is in and out of hospital all the time, I am often very sleep deprived. And recently my daughter contracted Kawasaki desease. I have no family in the UK. My ex husband was abusive to me, and eventually we split up 2 years ago after he hit my son.

I know all this sounds like excuses and maybe it is, but it has been a real struggle to hold everything together. I have at time had to go on anti-depressants, and I am on them now because of all this.

I had a taped interview with my solicitor pressent and explained everything, I admitted I realised I had done wrong and agreed to pay it all back. £6992! I have been paying £100 a month back for the last 6 months.

I am so scared. Will I get a criminal record, will I go to jail, will I loose my children. And if I get a friend to loan me the money and pay it back in full will it make a difference.

Please don't put horrible comments on here, I know I am wrong, and all the things you call me , I call myself worse, I really need advice, please.

[ErikaPNP]

You should not get any horrid comments on here - and if you do, hit the black triangle on the bottom of the offending post to report it.

 

It's impossible for us to second guess what a court's decision will be, so we can only advise in general terms.

 

If you plead guilty or are convicted as guilty, you will get a criminal record.

 

Repaying the amount without being chased for it looks good, but I wouldn't recommend paying it off all in one go, because that would raise the question that you may have means and it could damage other forms of mitigation that your solicitor could use. The fact that you are repaying it at £100 per month and have not defaulted is sufficient. Besides, it is stipulated that the recovery of the monies should not have any bearing on sentencing.

 

For the sum involved, and the fact that the claim was not fraudulent from the outset, the sentencing guidelines stipulate that the penalty could be a Community Order or between 6 - 26 weeks in custody (prison). The court takes a range of aggravating and mitigating factors into account when considering a sentence. Tthough prison is an option within the guidelines, given the sum, and the fact that you have disabled children to whom you are a lone parent, it is highly unlikely that you would be sent to prison.

 

You won't have your children taken from you because you have committed fraud. You can only have your children taken from you if you present a risk to them and from the sounds of it, you take care of them very well indeed.

[Inevermeanttobebad]

Thanks so much for the reply. Is there anyway I can plead not guilty, because I didn't mean to do, yes I was ignorant, and stupid, and irresponsable, but I didn't do it with intent to defraud. I have been thinking about it a lot today and I realized something else. My ex controlled everything financial, yes I applied for the benefit, I was better at 'wording' things than him, but he controlled all the financial aspects, he used to freak out when I spent to much and watched the bank account like a hawk. I kind of got into the habit of not looking at account, or ignoring them, hiding them, and not looking at my back account. In the last few months I have got better at all that, I check everything.

As regards my children, I try. All I do is try to give them a happy childhood, to make the bad memories go away, and to still let them have a relationship with their dad.

I am terrified. I have been planning to move to the States, to have a new start, but a criminal record would stop that. Thank you again for your understanding.

[ErikaPNP]

You should discuss your plea with your legal advisor; it is not something that we can advise you on, and I would strongly discourage you from taking any information on an internet forum as legal advice. On an internet forum, anyone can be who they want to be. For instance, I could say I was a GP, and answer medical queries. But I'm not a GP and taking any advice from me on medical matters when you don't know my credentials and can't check them out could cause harm to you. Even if I were a GP, the fact that I am not in possession of your medical history could mean any medical advise given could cause harm to you. The same principle applies to legal advice. Nobody here is in possession of your case file therefore cannot advise you properly on how to plead. You legal advisor will also be in possession of information which we are not, and will be able to get hold of information from the prosecution that could have a bearing on how you should plead.

[Norman1066]

no you have to go guilty, being ignorant of the law is no excuse. what happens then is that your mitigating circumstances come into play. Of which you have plenty... any judge/magistrate in the land will feel for your situation.

 

they're used to dealing with real criminals... you will be like a breath of fresh air.

 

I'd stop making any payments and await the court decision. it could be that you don't actually owe all of that.

 

don't worry, the courts are there to protect your interests, certainly so much more so than the people working for the benefits services.

[ErikaPNP]

The overpayment is nothing to do with the criminal court - that is a civil matter. The criminal court doesn't work out overpayments. Their duty is to decide whether the actions which resulted in the overpayment were fraudulent. Even in cases where the court deem a person not guilty, the overpayment still exists. If this lady doesn't believe the overpayment correct, she needs to go via the civil route to the First Tier Tribunal (Social Security Division), by appealing the decision. If this lady was to plead guilty, yet stop making payments that would do very little to help her situation.

[Norman1066]

OK, well the court would still be able to determine when the actual fraud started, the dates... only after hearing all of the mitigation. then the court could even decide that she doesn't have to pay anything back, what then? she may well have committed the fraud but it could have been caused through the negligence of job centre staff. So although guilty, she is not to blame.. this is why i wouldn't pay back a thing till after the court hearing.

[Inevermeanttobebad]

Thank you both, it's all so confusing. I have never thought of myself as a criminal. I just did what I could when I could for my children and to get through life. My life was just starting to turn a corner. I spent most of my married life staying with a abusive husband because I thought it was better for the children to have 2 parents at home.but the moment he hit my son I knew I had to leave. I just wish there was some way I could make this right. I am absolutely terrified right now. But thank you for you answers and reassurance and advice, I'm going to try get hold of my lawyer tomorrow.

[ErikaPNP]

The criminal court doesn't make decisions on paying it back; as I said that is a civil matter and nothing to do with the criminal court. The criminal court does not make any decision on repayment or recovery by other means. Civil law and criminal law are two very different things, dealt with by different courts with different standards of proof.

[Norman1066]

The criminal court doesn't make decisions on paying it back; as I said that is a civil matter and nothing to do with the criminal court. The criminal court does not make any decision on repayment or recovery by other means. Civil law and criminal law are two very different things, dealt with by different courts with different standards of proof.

 

could you show me where i've specified the court system involved?

 

My point is that she should only agree to pay in principle, and should first await the court decisions as to when the alleged offence took place. In her addled state she could well have gotten confused over the dates, and often a court case will help clarify all of the little details. So long as she promises to pay anything owed once the decisions are final then she loses nothing.

 

also any payments made in relation to compensation for a criminal offence are proposed by criminal courts... so they could make her pay back only £75 a month, depending on her circumstances. the overpayments have arisen because of a criminal offence... this moves them out of the civil realm, imo.

[Inevermeanttobebad]

You have both got me totally confused, I think I am going to a criminal court. I know I have to pay all the money back, and I will. All I wanted to know is what you think the best outcome could be, and the worst.

[ErikaPNP]

Norman, you do not need to specify the court involved. All prosecutions for benefit fraud take place in a criminal court, because benefit fraud is a criminal offence. Any compensation payment or decision to fine is made seperate to the recovery of an overpayment. A criminal court takes nothing to do with how often she pays it back or whether it is paid back at all. This is because the recovery of any overpayment falls within the jurasdiction of civil law. The duty of the criminal court is to decide if her actions were fraudulent, not to decide if she has been overpaid and if so for how long and by how much. If she disagrees with the dates, that is something that must be pursued via the civil route. As I have specified, even in cases where a criminal court deems a person as not guilty of fraud, the overpayment will still be pursued as it is seperate to the mattrer of fraud, and if the person concerned wishes to challenge the overpayment, then they must go via the appeals system. This is where the lady would challenge dates etc. They could use the criminal court's system's verdict of "not guilty" - if this were in fact, the verdict however the civil court are well within their rights to ignore that, because the standard of proofs are different; an overpayment whilst it may not have been proven as fraud in a criminal court, may still be accepted as fraud in a civil court - which has a much lower requirement for the standard of proof.

 

Opinions can be very dangerous things unless they are based upon known fact. For that reason, I don't give an opinion on any thread unless I know what I am saying is fact. When it comes to Welfare matters as well as whether a case falls within civil law or criminal law, I have a fairly good grasp of what I'm talking about. I wouldn't give the advice otherwise as it could land someone in very hot water if I wasn't certain of what I was saying.

[paulb1310]

Speaking from experience .. I had a friend who was prosecuted for fraud. He pleaded guilty. The DWP wanted something like £20k. The Court decided he should repay £8k so he did and that was the end of the matter. Obviously it may be different for different cases so please don't take this as being representative of every case.

[Inevermeanttobebad]

Thanks for all the replies and support. I spoke to my solicitor today, who was really shocked that they were taking my case to court, due to my circumstances.She also had some other bad news, her practice is closing and I now have to find a new solicitor, she gave me 2 names but couldn't recommend one over the other. She said it is possible that I don't get a criminal record. Lets hope so, fines and money I can pay back eventually. But a criminal record will be devastating, I won't be able to move and I won't be able to work in school anymore, which I have been studying to do, in fact I am starting a at home degree with a view to becoming a teacher one day. Still so scared.

[ErikaPNP]

If you are found "not guilty" then there is no criminal record. Any conviction (or admission of guilty) would go on record, and would appear on an enhanced CRB check. You've established that you have been overpaid because you failed to declare a change in circumstances but what you need to consider (along with a legal advisor) is whether your actions were fraudulent in the very large boundary that the law allows.

 

Not only do a court have to consider that your actions led to the overpayment, they have to be satisfied that your actions were dishonest and deliberate - that is, that you had mens rea - this is a legal term and means "guilty mind", the level can vary dependent on the offence as there are differing levels of mens rea, (and offences where there is no mens rea proof required - these are cases of strict liability but you don't need to worry about those).

 

In short, because of the way the legislation is written in relation to social security fraud offences, in your case they would need to essentially show that you knowingly and dishonestly failed to declare promptly. You can fail to declare a change of circumstances and receive monies that you are not entitled to, without being guilty (in the legal sense), of fraud.

 

This is where your mitigating factors come into play (includes circumstances which may have contributed to your failure to declare promptly), and also likely the reason why your solicitor feels shocked that it is going as far as court (though every case where an overpayment is in excess of £2000 is referred for prosecution, those prosecutions do not always go ahead).

 

The above about mens rea is just a snippet of what courts must consider but it shows how mind blowing these matters can be to a lay person, which is the reason I have advised you to take legal advice from a person you know to be legally qualified. There are so many grey areas when a case goes before a criminal court; it's not as straightforward as you failed to declare, therefore you are guilty. Guilty of failing to declare, yes, but guilty in the legal sense, which must be proven beyond all reasonable doubt - in a criminal court (and the onus of proof is on the prosecution) - not so black and white. You may not be as guilty as you think. But again, I must stress that only a solicitor whom you instruct can get access to all the evidence that the prosecuting solicitors intend to use against you, therefore I cannot say you should plead "not guilty" or "guilty". The person who will be defending you and whom can access all of this information about your individual case is the only appropriate person to advise you on that. But hopefully you will see that it's not as simple as a failure to declare = fraud, and feel that because you failed to declare, your life is over. There is a lot more to it than that.

 

I'd encourage you to enlist one of those solicitors as soon as practically possible, to discuss your case. If you can't get a hold of one before your court date, you can use the "duty solicitor" on the day of your court hearing. Speak to reception, tell them you are due in court and need representation and they will have the duty solicitor meet with you. They will get disclosure of the information (as far as is possible) and advise you on how to plead. It's very important to tell the solicitor everything, even if you are concerned how it will look or are worried about divulging private matters. They will then be able to advise you more appropriately.

[Inevermeanttobebad]

I have a appointment with a solicitor tomorrow. I spoke to him briefly today on the phone and he said it is highly unlikely that i will go to prison. The one thing that keeps bugging me is that both solicitors said that this didn't have to go to court, because of my circumstances. Now I am thinking did I say or do something wrong in my interview? This is one of the worst things I have ever gone through. I have only told one friend as I am so ashamed. I feel so alone. I wish there was something I could do to just stop this.

I just wish it was over.

[Inevermeanttobebad]

So, I saw my new solicitor today, he was lovely! He said because I have no other offences, not even a parking ticket I will get off lightly. Apparently I am being charged with, S.112 (1a), which basically means they agree I didn't intend to commit fraud, that there was no deliberate fraud, but that I broke the law because I didn't inform the DWP of my change of hours.

He believes that I will NOT go to prison, and because there is no risk of this that I will not qualify for legal aid.

But he thinks I will get a conditional discharge, and possibly community service.

The only thing I am worried about is if this will affect my visa for the USA.

But it is MUCH better news than I expected. He assured me that I am not a criminal, I just made a silly error. What a nice man!

I feel a lot happier today.

[ErikaPNP]

I'm glad that your mind has been set at rest somewhat.

 

I can't say what bearing the suggested penalties would have on a Visa application (because I don't know) but I can tell you how they work for disclosure checks.

 

A conditional discharge or community service would appear on a basic criminal records disclosure until it is "spent". A Community order is spent after 5 years and a conditional discharge is spent after 1 year (assuming you are over the age of 18 ).

[leemack]

Norman, Erika is correct, and knows what she's talking about. The overpayment side is decided initially by a decision maker and then by an appeal judge as a seperate civil matter. This can happen as well as criminal court, but criminal court does not decide on the civil matter. You can have an overpayment and not be guilty of fraud. You can theorectically be guilty of fraud and not have an overpayment.

 

In my experience, demonstrating intent to pay the overpayment can be a mitigating factor in court, and go in the person's favour when sentencing. So advising someone to stop paying is irresponsible. The only person who is qualified to advise such a drastic action would be the solicitor with full knowledge of the case, if the solicitor doesn't advise it then carry on paying.

[grrrrrr]

Can I strongly suggest you have the figures looked at to make sure the overpayment is accurate?

 

While the criminal court do not make decisions about the overpayment, the amount of the overpayment makes a big different in decisions to prosecute (or not) and in how the court views the offence if it goes to court. For nearly £7k that is a long overpayment where you would have needed to not be entitled. Are you sure this is right?

 

You can deduct things like childcare, work expenses, half of any pension etc. from your net earnings to see if you are over the threshold. You may find that the actual amount is a lot lower if your hours went up steadily and there were other expenses. You may have also been entitled to other benefits during the same period that you didn't claim for (called underlying or notional entitlement). Did you claim other benefits or tax credits when you started working?

 

Ask your solicitor to see if he can get an expert witness to have a look at the figures, and get the prosecutor to delay while the expert does their thing!

 

 

My husband and I recently went through a similar thing, and eventually managed to persuade the prosecutors to drop the case as we were able to show that we underclaimed against notional entitlement, so the whole thing went away (our summons was for Monday just gone!). We didn't have a solicitor, but spoke with & wrote to the prosecutor directly. It seems barbaric that they are doing this to you with your circumstances. We had David Winch (google is a wonderful thing) lined up as our expert witness if it came to court. While I never actually met him, the quality of his advice and knowledge of the field really impressed me. He has lots of online articles and info as well. Your solicitor may be interested in services ;-)

 

Your solicitor should advise you, but a guilty plea does pretty much all their work for them, and doesn't allow the figures to later make them rethink their prosecution decision. A criminal record is a big thing, even if not for a dishonesty offence, and so you should make sure you are getting the best possible advice.

 

Most of all, get some support for your caring role, you seem to have the world on your shoulders aside from this. A local carer's organisation may be able to offer support and help in so many ways.

 

All the very best of luck.

[Inevermeanttobebad]

Tomorrow is my day in court, I am so scared, wish me luck!

[ErikaPNP]

I'll be thinking of you - let us know how it goes.

 

Keep calm, only answer the questions as they are put to you, and try not to "overthink" the answers. I'm sure your brief will have you well prepared.

[Inevermeanttobebad]

Thank you everyone! I went today and my solicitor was great. He took me to a interview room and chatted to me for a while, and then told me to stay there. He then came back about 40 min later and said he had spoken to the DWP and the judge and had good news. I have received a caution form the DWP, it won't go on my record except locally and I'm all done! I didn't even have to go into the court room. Getting a good solicitor is a must. I also noticed that most of the other people there looked very scruffy and I do think dressing for the occasion helps.

Happy, happy, happy!

[honeybee13]

That's excellent news, I'm pleased for you. Take it easy in the future.

 

My best, HB