income support overpayment help

[buster1979]

my freind has had an interview under caution some time ago regarding i/s overpayment,she failed to tell them her partner was living with her,her partner has mental health issues and can dissapear for hours/days /weeks on end he does not work and never has because of she could not get him to jcentre to apply for benefits so claimed single parent,as one of her kids was ill and with her partner bein ill and havin a baby she couldnt work n had no money.im not saying i agree with her but she is my frend and i know how much she has struggled to cope,now she has receved two letter asking for the overpayment back over 20k one saying because they was working (which they was not and can prove) and one saying it was because she failed to tell them about her partner .and been told from her solicitor that it will go to court and she will be looking at prison sentance.she's keeping all this to herself as her partner is very unstable and she does not want to make things any worse for him,now heres where i need help.ive spoke to someone at work and she thinks my friend should have been entitled to it and more anyway (she a student in law or something),even though she didnt put her other half on the claim,and that if she was they would have to deduct what she was entitled to from the amount of overpayment bringing it down considerably,so i told her this and she spoke to her solicitor who said that she should not appeal as it will go to court anyway and she should instead offer to make payments off it.does anyone know which is true as my friend is now distraught that she is going to end up in prison because they have now stopped all her benefits and she can only work one day a week with her partner bein ill and kids so thats all they have to live on so she cant make a reasonable offer to start paying it back.is there anyone that could offer advice,where could she find how much they would have been entited to,and then when she does should she appeal to i/s with that or take it to her solicitor?

Edited December 8, 2010 by buster1979
added info

[buster1979]

any advice please?

[leemack]

Hi, she should definately appeal, the solicitor is talking rubbish. If she goes to criminal court they will be looking at the criminal case and not whether the overpayment is correct - an appeal tribunal will deal with this by looking at benefit law. An appeal needs to made within one month of the date on the decision letter. You friend needs to get representation from a good welfare rights or cab, who can go through her income and entitlements for the period in question, and see whether any case can be made for offsetting. An appeal can continue at the same time as a criminal case and can in some circumstances have a bearing on the criminal case, for instance if it were proved at appeal that there was no overpayment. There are good solicitors, but unfortunately there are many who do not have a clue about benefit law and procedure.

[honeybee13]

I agree with Leemack, go to Welfare Rights or the CAB. You might even find a different solicitor through CAB. Your friend's one doesn't seem to know very much about benefits.

 

HB

[buster1979]

thankyou so much for replying,i have printed off your replys for her as she does not have internet access and i will give them to her first thing this morning,hope they will give her some thing to work too and see if i can convince her to go to the CAB.I was on the phone to her lastnight and she was absolutely distraught the solicitor has in so many words told her to go home and enjoy christmas with her family before making arrangements for her children 'just incase'!! as she is certain to get a long prison sentance,i told her to go to the doctors as she is not sleeping/eating and its really taking its toll but she is concerned he will think her depressed and with her partner ill she has no close family able to look after her children.she said she had three interviews one alone and two with the solicitor and she admitted everything and gave her reasons as to why she had done it so her solicitor said that is why she should not appeal and just go to court as the sentance will not differ even if the amount is reduced.

[honeybee13]

Please don't jump to conclusions, I doubt if it's that bad. Get your friend to ask for more advice and not to rely on this solicitor. Leemack used to work for the DWP and is still involved with helping people, so I would trust him/her [sorry Leemack, you're so new I don't know which you are].

 

The GP is likely to be sympathetic. Lots of people are depressed and I've had problems, she shouldn't worry. As for the children, they need their Mum. I don't know what she thinks the GP might do, but I wouldn't expect anything bad to happen at all.

 

Please keep in touch and ask anything you need to know. The main thing is to get her in contact with the CAB. Have a look for Welfare Rights as well. You can normally contact them via the council.

 

Take care, HB x

[buster1979]

thankyou all for your advice,just to update she went to cab today and they were not much help just gave her some contact numbers for solicitors (one of which is the one she is with) but she is going to ignore the solicitor and appeal so fingers crossed that should help.from what i can gather they are not even sure themselves about why she has to repay the money they have sent her two different letters stating different reasons,and got her partners name wrong on both.

[honeybee13]

Well I think she should carry on fighting. If one or two of the other lawyers are prepared to see her for an initial half hour or so free interview, I'd say it's worth going. I wouldn't want to do an appeal on my own myself, if I could get decent professional help.

 

At the end of the day, if the first lawyers have been really inept, she might want to do something about it later. Tell her to keep all the correspondence. Also, if she doesn't understand what they're telling her, she should ring and ask for it to be explained anyway.

 

But for now, she needs help to fight the case. Did you have any luck with Welfare Rights? Sadly, CAB vary from branch to branch and they're under a lot of pressure. You could also see if there's a local Law Centre who might help.

 

HB

[leemack]

Is there a welfare rights organisation or cab with a legal aid contract in her area? These would be the best places to go for help with your appeal, they are audited regularly for the standard and level of their work as part of their contract. communitylegaladvice.org.uk has a search facility for advisers in your area. Do a search, it'll bring up places in your area. For each place that offers benefit advice, click on 'more information' and then on 'charges' and it should say if legal aid is offered in civil cases. What area does she live in? Someone on here may be able to suggest somewhere.

 

As honeybee said, not sure whether the solicitor is any good for the criminal case, she may want to get a second opinion from someone else. I'm not a criminal expert but for instance, if she went to an adviser who on further investigating the matter found out that infact not informing of the change of circumstances caused less benefit to be paid, I think the prosecution would have a difficult time proving intent to defraud. I'm not saying that this is what's happened here, but until its looked at, no one knows. At the very least, whether or not there is a prison sentence, the overpayment will still have to be paid back - and someone at least needs to check its right. The amount of overpayments I've come across that are wrong, is unbelieveable.

 

Hi Honeybee, I'm a she.

Edited December 9, 2010 by leemack

[honeybee13]

Me too [a she] . Buster, is this helping?

 

My best, HB

[kk3852]

I really dont think that this is as easy as just appealing the decision without knowing what grounds to make the appeal.

 

You say that part of the overpayment is due to her working (but that she can prove that she didn't). For an overpayment to be raised due to her work the decision maker must have had proof of earnings which would have been shown to her during the IUC and discussed with her. She would have been given the chance then to say if they were wrong and further checks would have to have been made with the employer. If she is saying that they are still wrong, what proof is she going to provide to support an appeal ?

 

For the part of the overpayment that relates to living with her partner, they must have had sufficient evidence to say that his main residence was with her. You say that he has mental health issues and that he has never worked. Are you sure that he doesn't get any benefit in his own right, or that he doesn't work? If he wasn't doing either its very unlikely that they will be able to make a claim for him for the period of the overpayment. No claim can be backdated for more than 3 months.

 

 

Her solicitor is either not experienced in benefit fraud or there is something here that you dont know about. A £20,000 overpayment does not mean that she will go to prison although if there are contributory factors, ie - working in a false name, making a deliberately false claim (as opposed to a change of circumstances following a claim) or it not being a first offence then the courts will look at this more harshly.

 

A reduction in the overpayment can be taken in by the courts for sentencing purposes, for example - they can look at the overall loss to public funds if say the correct circumstances had been declared whether tax credits should have been awarded. It is important to know that this does not reduce the amount of benefit that needs to be repaid but it means that any sentence that the court passes would be decided on the reduced figure.

[ErikaPNP]

Leemack is spot on. The only thing I will add is that it may be to her benefit for her to look at dropping her solicitor like a hot stone and finding another, particularly one who is familiar with welfare cases. Going to prison is a possibility yes, but only a possibility and one of many other possibile penalties. He is right to prepare her for that possibility but it doesn't sound to me as if he feels she has a chance at all, and doesn't appear to be knowledgable about welfare - though many solicitors whose field is criminal law won't be. She needs a solicitor who is prepared to mitigate her case fiercely in order to acheive the most favourable outcome for his or her client.

 

The only other thing that I will say is that the Tribunal Service like to try and hold off hearing an appeal until a criminal case is concluded. She needs a good welfare rights specialist to fight against this. Welfare Rights Organisation with free services usually via your local council (if they don't run one they may be able to put her in touch with one) but unfortunately many are being forced to close due to a severe lack of funding.

[buster1979]

hi appologies for the delay in replying it's just been one of those days at work lol,anyway apparently during iuc they asked her if she had worked she told them the truth that she had not and they had no evidence of her working obviously as she hadnt.,and hence this is where the conflicting letters for overpayment come from,one say's it is because she was working then the other say's it is because her partner was living there.her solicitor has asked which one it is and they have said the work one was a mistake and it is because her partner was living there and just to ignore the first letter.as for her partner he does not work and does not claim nor ever has claimed benefits.he rarely leaves the house and has alot of problems (ive known her now for over 20 years and bet i havent seen him more than three times) not sure what he has but he's almost like a recluse ,she did try years ago to get some form of benefit for him several times but without him with her to apply or get sick notes etc,they wouldnt give her anything for him which is what got her in the situation in the first place. her son was very ill when he was younger and she could have claimed disability for them both and possibly carers etc with everything else but she wasnt aware of any of this.im sorry if this is very vague but i dont want to put too much about her on here with it being open obviously and i dont want to invade her privacy,i tell her what i have wrote and what advice you have all given,i just want to help her.she said she knows she deserves to go to prison and she will pay everything back and more but she is distraught at the thought of leaving her kids.she has no family to care for them (she hasnt even been out socially in nearlly 6 years because she doesnt even have some one to care for them overnight let alone months or years so she has never spent even a day apart from them).thankyou all sinceerely for all your help,advice and encouragment x

[ErikaPNP]

Prison is only ever a last resort, and rarely where the offender does not present a significant risk to the public. I've seen far bigger frauds with no imprisonment. The court will also consider her home situation when considering a sentence - because there are children involved, sentence may be deferred for a Social Enquiry report to be completed. The punishment has to not only fit the crime, but fit the public interest, and fit rehabillitation. They don't never sentence mothers to prison but where there are children involved with no alternate care and the offender presents no danger to the public, they have to give serious consideration to whether a prison sentence would be appropriate or counter productive.

[buster1979]

hi all,just a quick update (thankyou for all your help.)and a few more things were stuck on please,as of yet she still has heard nothing as to weather it is coming to court (though the solicitor is 100% it will)however she has recieved a breakdown of the amount of overpayment and has appealed,she recieved a letter back saying it was going to tribunal,which she is ok with but unsure of what to do now,they say the reason that she has been overpayed is that she was ltahaw and that her partner was in full time work now and not her (they said that was a typing error)(he was not and i myself have looked trough the tribunal papers and the dwp have no proof or evidence for this nor was this brought up at her interview)will the tribunal take into account that he was not working,had no income and did not regularly live there (by that he ofen stayed with friends,his parents etc when he is going through bad patches)so will they consider the offset against the overpayment and even reduce the amount of overpayment against this,can they do that?or are they just there to establish if they were living together (which she told she was during the interview)and therefore they can not overrule the origional decision?if the first is correct and they have the power to overrule things what evidence could she take?proof of her sons illness,proof of her partners and meds he is on?letters from people he stays with?his bank statements?

thankyou again so much i know this is alot of questions to ask,but she and i are both confused at to waht the point of the tribunal is?

[buster1979]

bumped ( any advice please)

[ptol]

Based on the information you have said, the reason to appeal is that the overpayment calculation is wrong, as it is based on the wrong assumption that her undeclared partner was working. She needs to state what her partners work record was. What benefits they as a family should have been able to claim, etc.

 

From the information I have read on here, I suspect that the overpayment will turn out to be Zero, and that had your friend managed to get her partner to a doctor, and get sick notes issued for her, they as a family would have received higher payments in the past.

[jadeybags]

I would be interetsetd to know how they came to the figure of 20k overpayment. I mean, if they are saying she shouldn't have had any of that benefit at all for a length of time, they must have a reason to think she wasn't entitled, & to prosecute her they must have some sort of proof surely?

If they think she was working they would need to know how much she is earning, if a guy was living there they would need to know how much he was earning.

Is your friend telling you everything? I understood that everything that is said to her about it, interviews etc, needs to be said to her solicitor too, why would her solicitor be telling her she is likely to go to prison? If you google benefit fraud stories I think out of about 50 I read about so far only 2 went to prison. These were people that had properties they owned undeclared, people that had used fake names, big time fraud, of many many thousands over a lot of years. And not a first offense. I also have heard of people like this not going to prison. Couples that pretend to live apart & claim 2 lots of benefit for 2 different homes, but actually lived together. They didn't go to prison.

They all got ciminal records, they all had to pay it back & all got fines, suspended sentences & conditional discharges, but unless there is a lot more to this story, I would be flumoxed if a single mum was put in prison for benefit fraud. Scaremongering is just plain cruel.

[jadeybags]

hi appologies for the delay in replying it's just been one of those days at work lol,anyway apparently during iuc they asked her if she had worked she told them the truth that she had not and they had no evidence of her working obviously as she hadnt.,and hence this is where the conflicting letters for overpayment come from,one say's it is because she was working then the other say's it is because her partner was living there.her solicitor has asked which one it is and they have said the work one was a mistake and it is because her partner was living there and just to ignore the first letter.as for her partner he does not work and does not claim nor ever has claimed benefits.he rarely leaves the house and has alot of problems (ive known her now for over 20 years and bet i havent seen him more than three times) not sure what he has but he's almost like a recluse ,she did try years ago to get some form of benefit for him several times but without him with her to apply or get sick notes etc,they wouldnt give her anything for him which is what got her in the situation in the first place. her son was very ill when he was younger and she could have claimed disability for them both and possibly carers etc with everything else but she wasnt aware of any of this.im sorry if this is very vague but i dont want to put too much about her on here with it being open obviously and i dont want to invade her privacy,i tell her what i have wrote and what advice you have all given,i just want to help her.she said she knows she deserves to go to prison and she will pay everything back and more but she is distraught at the thought of leaving her kids.she has no family to care for them (she hasnt even been out socially in nearlly 6 years because she doesnt even have some one to care for them overnight let alone months or years so she has never spent even a day apart from them).thankyou all sinceerely for all your help,advice and encouragment x

 

That bit concerns me, why does she know she deserves to go to prison if she hasn't done anything wrong?

[buster1979]

hi,thankyou for your replys.

ptol.that is what was puzzeling me as to what her appeal was for as they said the overpayment was due to her partner living there which she has said he was so i couldnt see why they had let her appeal?i was not sure if the appeal could also dispute the offset.

jade,she thinks she deserves to go to prison for what she has done,she did not inform them when he moved in (she had her reasons as outlined above,but at the end of the day she knows it was still wrong).Her partner definetly does not work,he is on medication (has been for a long time) though i dont know what sorry,and i dont know what his medical problem is (well not the technical name) but he has severe phobias and anxietys,(people being one of them as i found out a few years ago when i attempted to talk to him)he recieves councelling so it will all be in his records and his parents and friends could verify his state of mind when he stays with them and also the regularity of him staying with them.and because of all this he has never claimed a benefit either,both my friend and her partners mum have been back and forth to the jobcentre over the years trying to get him something but without him there they would do nothing (the cab filled out a dla form for them a few month back,it was refused,they appealed,it was refused,they contacted jcentre to see what else he could get he can not activly seek work or attend interviews so jsa was a no and e and s allowance a no,meaning he can still claim nothing)so no he definatly wasnt or isnt claiming any benefit.i think the solicitor has tried to prepare her for the worse,which seems very mean to me too as she is aware that this is making even more strain on her,but no matter how many times i tell her every case is different she has prison stuck in her head.her solicitor said that they go more leniently if she can pay it back or make payments,she has offered some each month but is aware this is nowhere going to pay it off in her lifetime but at the moment her income each week is 100 less than what she has to pay out so thay are getting further and further into debt which she fears the judge will see she can not reasonably pay it off and therefore punish her by prison.

[jadeybags]

But she is paying back something that she probably doesn't owe? It boils my blood to be honest the way they pluck these over payment figures out of thin air by the sounds of it!

She doesn't deserve to go to prison for not declaring that someone that contributes nothing whatsoever towards the household has moved in. Fraud is when someone fails to declare something that would mean they get less benefit. By the sounds of it she wouldn't have got less benefit, they may even have got more! So they would have a hard job prosecuting her let alone put her in prison, see what I mean?

If all they have to go on so far is her admitting he moved in, but he didn't have a pot to p in anyway, what grounds are they basing this overpayment & defrauding the system? The fact is probably more likely that the guy has cost her MORE moving in with her. Not meaning to be nasty, but he sounds like he's been a bit of liability to me! We've all had one like that at some point though haven't we.

It all sounds too bizarre at the moment, & if they cant get any definate evidence of her receiving more money than she was entitled to, I cant see them taking it to court. It's not up to those people interviewing her anyway. It's up to someone higher up. They need more than they appear to have.

The solicitor sounds worrying, but it doesn't sound like she has a benefit solicitor. That's as much use as a chocolate sauepan.

[ptol]

Her real problem is that her solicitor is not benefits aware, and is handling the case as though it was a police investigated fraud, and is accepting the fraud allegation at face value.

 

She needs a solicitor experienced in benefit processes, otherwise she will continue to get bad legal advice.

[buster1979]

just a quick one,i have showed her all the responses and she cant believe how helpfull everyone is being and asked that i thank you all from the bottom of her heart for all your help and advice .

[flumps1976]

Sorry if I missed this at the beginning but what grounds was she originally claiming IS for? Was it on the grounds of being a carer either in receipt or with underlying entitlement, on the grounds of incapacity or as a lone parent?

[buster1979]

hi,she origionally claimed because she was on her own with her son, so as single parent,i dnt think he moved in till her son was 3 or 4 and as he had no money/didnt work and never actually moved his belongings in for over a year because of his problems he came and went so she never informed them of him moving in.