over payment of carers allowance

[nobloodynamesleft]

Apologises first if I have listed this in the wrong place, I am new to this site.

 

Help desperately needed.

 

I have been charged with 112 (1A) for failing to notify change of circumstances.

A brief summary is that my son has autism and receives DLA so I was advised to claim carers allowance at the time I was not working. I also received income support, then I started part time work for which I advised income support but was still eligable as my hours were under 16 per week. About 6 months later my hours increased and I came off of income support (who I notified of the change, also notified housing/council tax benefit) However for some reason I believed carers allowance was the same as DLA and not dependent on earnings...A fatal mistake!!!

 

I had no idea I was commiting fraud until I received a letter instructing me to attend an interview under caution, even then I had no idea why until a frantic search on the internet revealed my mistake. I was devasted but knew it had been a mistake so went to the interview and told the truth. I had declared receiving CA on my housing benefit forms (which I have the award letters for which clearly show I have declared my earnings and carers allowance) I also declared it on my working/child tax credit forms as taxable income).

 

After the interview I received an overpayment notice of approx £6000, which I have since been disputing as I believe that I would have been under paid on housing benefit & working tax as I declared this as income, so the amount actually received would have been no where near. I have stated that I realise these are different departments but basically as it's all public money it comes from the same pot. To which I have received standard letters which don't actually address my questions. I sent a token payment of £20 and asked to pay this amount montly to clear the debt. Again the response was a standard letter which didn't answer if this was acceptable. The last letter I sent I asked for the amount to be looked at again and could someone please answer if this amount was acceptable. To which I received a mass of paperwork stating it was now going to tribunal but it would not be heard beford Sept 2011. I then kind of breathed a sigh of relief as at last maybe someone was listening....how mistaken I was!!

 

Stupidily I thought this would be recognised as a mistake but 11 months after my interview I have received a court requistion. With just 11 days between receiving it and my court date I have spent the time frantically searching for a solicitor (one who is passionate with regards to this and not one who just wants to go for the easiest option)

 

I am asking if anyone has any advice or can quote any previous cases that may be useful. Also I read somewhere that a person should not be prosectuted if there is reason to believe they would have qualified for other benefits instead, but can't find where this came from, does anyone know??

 

Please help I have a lot riding on this as I may lose my job and as I am also doing an OU degree in criminology & psycology, which will become pointless if I receive a criminal record.

 

I realise I made a mistake but it was a mistake and it seems ludicrous that this error could sent me back to benefits instead of away from, as I was trying to by returning to work.

[rebel11]

Hi no

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available. I know it's difficult, best no to panic.

[jadeybags]

It's all a bit complex, but if you were earning more than the 100 a week, you then wouldn't have been entitled to CA, which as you say HB take into account as income. And this is where it's too complex for me, but would that also mean you lose the carers premium on housing benefit?

It may be underlying entitlement that you're meaning, which a benefit savvy solicitor will know about. That could change the over payment amount. People have to fight for that to be recognised though, benefit depts dont always volunteer that for some reason!

[Life-Goes-On]

Sadly your overpayment won't take into account of any underpayments of other benefits.

 

They can and do prosecute even if you would have qualified for other benefits, but you can certainly use that in your defence.

 

Have you taken any legal advice?

[nobloodynamesleft]

Thanks for your reply. It's a minefield I just wish common sense would come into play. If I was trying to defraud I definitely wouldn't be declaring it on other benefit forms or be working for local government on PAYE. I'm even more confused by your comment about carer's premium on HB, is this different to CA & something I would have received?

 

From what I gather the amount to be paid back is not covered by the prosecution as this is going to tribunal. However I have been told that the reason I am being prosecuted is the amount overpaid, yet if I am entitled to underlying benefit this could be greatly reduced.....confused? Welcome to my world!!

[jadeybags]

Sadly your overpayment won't take into account of any underpayments of other benefits.

 

They can and do prosecute even if you would have qualified for other benefits, but you can certainly use that in your defence.

 

Have you taken any legal advice?

 

Hmmm are you sure? My friend kept on at his council that once his savings got below a certain amount he would have been entitled to some IS, which would have passported him to full housing benefit. They wouldn't accept it at first, but after a few more letters, they did accept it & lowered his over payment from about 10k to 1k.

[kk3852]

Any underlying benefit entitlement would not be taken into account when deciding whether or not to prosecute you. But it can be considered by the court for sentencing purposes.

 

for example, if someone was working and claiming the Court could consider whether or not any Working Tax credit (had been correctly applied for at the right time) would reduce the amount overpaid. This does not mean that you do not have to repay the full amount overpaid, or that you could put in a late claim for tax credits.

 

It is something that can be considered by the court when a reduction would take you to a lower sentencing point. Looking at the magistrates sentencing guidlines these appear to be 'less than £5k' and then 'between £5k and £20k'

 

This would be just for sentencing purposes only, and it would be for your defence to request it, and a welfare rights officer to calculate

 

http://sentencingcouncil.judiciary.gov.uk/docs/web_sentencing_for_fraud_statutory_offences.pdf Section F is about benefit fraud

Edited June 12, 2011 by kk3852

[jadeybags]

Carers premium is a certain amount more each week added on to HB than non carers get. Although I dont think the premium is as much as CA itself. It's been a while since I received CA.

[nobloodynamesleft]

Why is it that for serious crime the onus is on proving guilt beyond reasonable doubt, but as this is a charge that doesn't imply dishonesty (ridiculous as it's classed as benefit fraud) it looks likely I'll receive a criminal record for a mistake, despite being able to prove that I declared it elsewhere, so it was unintentional.. Frankly.... the law is an ass!!

[Life-Goes-On]

Fraud does imply dishonesty although it can just be a mistake but ignorance of the law is no excuse.

 

So a person can be convicted of fraud because they should have known that they had to inform of changes.

 

Do remember it is a charge, and the court will look at all evidence but you really need to get solicitor, and I believe you can ask for an adjournment, for legal advice

[nobloodynamesleft]

I have got a solicitor but received the summons with 11days notice of the court date. I have spent the last week running around trying to get a solicitor ( which in itself is no easy feat) I now have one I am happy with and who is outraged by the lack of compassion about these cases.

 

I am absolutely devasted to find myself in this position, especially when I first started work I was working under 16 hours and on income support & my employer kept asking me to do overtime but I wouldn't because it would affect my IS (to which she is willing to testify). What I am not happy with is the charge is : failing to notify (which I agree to) knowing it would affect my entitlement to benefit (which is the bit I dispute) so was really hoping someone had some info on a similar case

[Life-Goes-On]

Sadly not many people come back and report how they got on. I think they just want to forget about it.

 

EDIT P.S.

 

There are some people on here who are advisers on benefits issues, hopefully they can give you some info, when they are about.

Edited June 12, 2011 by Life-Goes-On

[nobloodynamesleft]

Thanks

Note to self: Must come back and report what happens, good or bad

[Life-Goes-On]

It's is annoying that it clearly looks to be a mistake, and a overpayment would be enough of a penalty.

Good luck and I hope they see sense.

[Nystagmite]

It's all a bit complex, but if you were earning more than the 100 a week, you then wouldn't have been entitled to CA

 

This £100 is after certain deductions, such as tax and NI.

[Life-Goes-On]

Would be the DWP as it's about Carers Allowence

[Springboard]

Hi

Please let me know how you get on? I'm going through the same thing and for very similar reasons, so would be grateful for an update.

Lots of luck. x

[nobloodynamesleft]

Hi Springboard

 

It's all still on going at the moment, I have my tribunal in a couple of weeks then court case after. I think I have the court side in order but the tribunal has crept up without me realising. I've been so busy ( & stressed) by the court side that unfortunately I have not done any preparation for the tribunal.

 

Can anyone help with any examples of legislation ( or other cases) about underlying entitlement to benefit. I am trying to get the amount of over payment reduced as I had declared Carers Allowance as income to housing benefit and tax credits so therefore received less than I was entitled to from them. So whilst over paid carers I was under paid housing and tax credit. Unfortunately they are taking the line that as it was my mistake in the first place...tough!

[upseydaisy:)]

The court cannot alter overpayments this has to be done at tribunal. They can consider it regarding sentence but cannot alter the figure.

[nobloodynamesleft]

Hi Upsey

 

I thought I'd start a new thread hoping the title would catch someone's eye. I realise the Court cannot alter overpayments that's why I was asking for advice for the tribunal regarding underlying entitlements. Thanks anyway

[upseydaisy:)]

oops my error there

[kk3852]

I have never heard of an underpayment of HB/CTB being offset against an overpayment of CA at tribunal......I doubt very much that it can happen. The tribunal hearing will just to see whether or not the period of overpayment of Carers Allowance has been made correctly.

 

Maybe you are getting mixed up with a court hearing where they can offset one against the other but this is for sentencing purposes only - and not to reduce the amount that is needed to be paid back.

 

The Court can sentence for benefit fraud on the overall loss to the public purse. Perhaps this is what you have heard

[Springboard]

Hi there,

I was wondering whether you had progressed with 'underlying benefit' I am going through the same thing as you but perhaps a few months behind.

May I ask how you managed to find a sympathetic solicitor? I need one who also has experience with mental health issues - (don't worry I'm not a nutter!).

From my research it seems that underlying benefit can only be used as a measure of the true cost to the public purse and this may be taken into account when sentencing; have you come across this at all?

[taraquin]

You have been very lucky in having a Tribunal BEFORE a court date.

 

The Dwp tend to go for a conviction in court first for the FULL overpayment & that is what you are sentenced on. Then at a later date go to Tribunal to argue that the debt should be lower by set off.

 

I know of one case where a guy worked and claimed and ended up in Crown Court over a £12,000 overpayment. He ended up inside even though it was a first offence.

 

Yet went to Tribunal later and showed that by set off (could have claimed another benefit instead) the net debt to the Crown went down to under £1000!

 

So he was sentenced for a 'major cime' and spent time in HMP, yet the debt was deemed excessive some months later.

[nobloodynamesleft]

Sorry for the delay but the first thing a good solicitor should do is ask for an adjournment of any court hearing pending the outcome of the tribunal to ensure that doesn't happen. That was the first thing mine did and the judges did not hesitate to grant it.