Interview under caution - allegation of working whilst claiming

[Shoelover]

Bazza is spot on. If someone has requested a solicitor and they have not arrived I would not dream of interviewing them. There's no need in the circumstances.

 

The key is there is no hard and fast rule and that is exactly why you need proper advice.

[politenun]

Hi

 

 

I have prepared my statement now, which, if they let me, I will read out at the top of the interview and then I will listen to what they have to say. If there is no solicitor around I will give a summary answer to some of the points at the end.

 

 

I have found out that I can get a tape of the interview but I will have to fill a form in. I called them and told them I would like a tape as that may change the style of questioning. One advice I read from a legal Blogspot was that you should not be intimidated.

[BazzaS]

Hi

If there is no solicitor around I will give a summary answer to some of the points at the end.

 

 

If you have arranged a solicitor and they aren't present : see previous reply.

If you haven't arranged for a solicitor to be present for you, why would you expect one "around"?

 

I've (previously) highlighted the benefits of using a solicitor if you are planning a "no comment" / written statement interview.

How d you plan to mitigate the risks in using that approach without the benefit of a solicitor?

[Shoelover]

Hi

 

 

I have prepared my statement now, which, if they let me, I will read out at the top of the interview and then I will listen to what they have to say. If there is no solicitor around I will give a summary answer to some of the points at the end.

 

 

I have found out that I can get a tape of the interview but I will have to fill a form in. I called them and told them I would like a tape as that may change the style of questioning. One advice I read from a legal Blogspot was that you should not be intimidated.

 

Usually you will only get a copy of the CD if the case proceeds to court. Advising in advance that you require a copy will not change the way you are interviewed.

[Chalkitup]

Usually you will only get a copy of the CD if the case proceeds to court.

 

This is not what I was told when I was interviewed under caution a few years ago.

 

At the interview I was first given the caution then the PACE (Police and Criminal Evidence Act), interview and tape recording procedures were fully explained to me and then I was asked:-

 

a) If I wanted a recording of the interview

and / or

b) If I wanted a transcript of the interview recording

 

I asked for both and two weeks later I received both.

 

I advise anyone to get both because whoever wrote out the transcript actually got a few things muddled up from the original recording!!

 

The interview was actually not a bad experience and in my case all went well and no further action was taken. But then again I had done nothing wrong!!

 

Please remember that these interviews are sometimes the result of the benefits office staff just thinking something is not right ....... they hand over to the fraud section whose job is to gather all the evidence. The interview is their way of getting your side of the story. If you have done nothing wrong then speak out and explain as I did as that is the idea of the interview to get your side of the story across.

[politenun]

Thanks for that chalkitup.

 

I am hoping to have a solicitor there and if I do, they can ask for disclosure before the interview. I will read out the statement anyway and then if I can answer the questions with a solicitor there, I will.

[BazzaS]

Thanks for that chalkitup.

 

I am hoping to have a solicitor there and if I do, they can ask for disclosure before the interview. I will read out the statement anyway and then if I can answer the questions with a solicitor there, I will.

 

It looks bad to "no comment" some questions and answer others.

 

The whole point of using a solicitor and a written statement is so that you answer "no comment to all questions" and have the written statement to answer them all, so no adverse inference can be drawn.

 

Your solicitor will know the questions in advance, or if they spring a new surprise : ask for the interview to be stopped so that they can advise you and add to your written statement.

 

What has your solicitor said about your plan to "if I can answer the questions with a solicitor there, I will" ?

Answering all questions is an option : but then why have a written statement?

[Shoelover]

If the question has been asked and not answered & the interviewee could have answered, then inference could be drawn.

 

Or alternitvely someone my have done nothing wrong and use the interview to put across their side of things thus showing that they have not committed any offence.

[tomtom256]

You will get an MG6a issued prior to interview explaining what offence is believed to have been committed and a brief outline of the evidence. It has to be provided regardless of a solicitor being present.

 

Not sure why barrack room lawyers recommend no comment interviews as it does not assist the interviewee as DM's will have no choice but to suspend benefit based on you not denying or admitting the allegation, which in most cases creates a huge overpayment = court action, it also puts the customer in a situation with no money.

 

However offer an explanation to the evidence/allagetion = no further action or out of court action, i.e. tell the truth about what happened and deal with the fallout.

[BazzaS]

Not sure why barrack room lawyers recommend no comment interviews as it does not assist the interviewee as DM's will have no choice but to suspend benefit based on you not denying or admitting the allegation, which in most cases creates a huge overpayment = court action, it also puts the customer in a situation with no money.

 

However offer an explanation to the evidence/allagetion = no further action or out of court action, i.e. tell the truth about what happened and deal with the fallout.

 

Who has suggested ONLY a no comment interview?.

 

There is a world of difference between "ONLY a no comment interview", and "a no comment interview with a written statement given"

 

Why choose the latter? : some people feel less happy to be interviewed and are worried they may interview poorly or inadvertently give a poor (or even misleading answer) - it isn't as simple as "just tell the truth", as a "no comment" interview may allow a clearer statement of the truth in the written statement !

 

As for "barrack room lawyers" : unless they state otherwise CAG'ers aren't professional lawyers - yet good advice can be offered.

The whole point is that the advice offered is open to criticism / review.

You've criticised some advice : I'll agree so far as giving only a "no comment" interview is poor advice.

 

Why is a 'written statement (which answers the questions!) and giving no other comment' poor advice? and if it answers the questions why would it automatically lead to suspension of benefits / court?.

[tomtom256]

Who has suggested ONLY a no comment interview?.

 

There is a world of difference between "ONLY a no comment interview", and "a no comment interview with a written statement given"

 

Why choose the latter? : some people feel less happy to be interviewed and are worried they may interview poorly or inadvertently give a poor (or even misleading answer) - it isn't as simple as "just tell the truth", as a "no comment" interview may allow a clearer statement of the truth in the written statement !

 

As for "barrack room lawyers" : unless they state otherwise CAG'ers aren't professional lawyers - yet good advice can be offered.

The whole point is that the advice offered is open to criticism / review.

You've criticised some advice : I'll agree so far as giving only a "no comment" interview is poor advice.

 

Why is a 'written statement (which answers the questions!) and giving no other comment' poor advice? and if it answers the questions why would it automatically lead to suspension of benefits / court?.

 

PACE allows for pre-prepared statements to be read out on record at the start of an interview, this statement may not answer all the questions posed as they would not know what questions are going to be asked. (only minimal dislosure is required to a solictor in order for them to advice a client of what is being investigated. An investigator does not have to disclose all evidence held).

 

There is also no requirement under PACE as far as I am aware to accept what is on a written statement after the fact as the IUC itself is your opportunity to give your version of events.

 

Pre-prepared statements also do not protect people from adverse inferences under Section 34 as if they are taken to court and the customer gives inconsitent testimony the court could still take inference from it.

 

Hence why I recommend just answering the questions truthfully, if you have done nothing wrong, how can you give a poor or misleading answer! If a customer has commited an offence, then an admission at first IUC will go a long way with what type of fraud penalty could/should be offered and what period a decision maker uses for any potential overpayment period.

 

Don't forget a decison maker first has to decide if there is sufficient evidence for an overpayment before it even gets anywhere near the court of law and if they do not have a sufficient explanation then they will suspend benefit in the first instance until such time one has been given.

[BazzaS]

PACE allows for pre-prepared statements to be read out on record at the start of an interview, this statement may not answer all the questions posed as they would not know what questions are going to be asked. (only minimal dislosure is

required to a solictor in order for them to advice a client of what is being investigated. An investigator does not have to disclose all evidence held).

 

Previously answered. If a new / 'ambush' question is asked a solicitor can ask for the interview to be suspended to readvise their client / add to the written statement.

 

There is also no requirement under PACE as far as I am aware to accept what is on a written statement after the fact as the IUC itself is your opportunity to give your version of events.

 

Actually, the written statement doesn't even have to be given to the investigators : the solicitor can retain it and produce it at trial, stating when it was made and that it has been kept in their possession (as an officer of the court) since.

 

It is then for court (/jury) to decide how much credence to give it.

This is rarely used. If trying to persuade the investigators not to take things further of course the statement wil be given to them.

 

Pre-prepared statements also do not protect people from adverse inferences under Section 34 as if they are taken to court and the customer gives inconsitent testimony the court could still take inference from it.

 

True, but not relevant.

If they give answers to questions in IUC and their later testimony is inconsistent the court can take inference from it, too.

All that shows is inconsistent testimony can be challenged ; it doesn't matter if that was initially from a written statement or from answer in IUC!.

 

Hence why I recommend just answering the questions truthfully, if you have done nothing wrong, how can you give a poor or misleading answer!

 

"Yes or no, have you stopped beating your wife yet?" : inspires a poor or misleading answer.

 

Additionally some people will get so flustered under questioning that they may not be able to articulate the truth, or may give a mistaken reply....

 

If a customer has commited an offence, then an admission at first IUC will go a long way with what type of fraud penalty could/should be offered and what period a decision maker uses for any potential overpayment period.

 

And their legal advisor will no doubt advise how to best phrase that in the written statement!

 

Don't forget a decison maker first has to decide if there is sufficient evidence for an overpayment before it even gets anywhere near the court of law and if they do not have a sufficient explanation then they will suspend benefit in the first instance until such time one has been given.

 

Which a written statement may answer.

 

You still haven't said why a "no comment" interview with a sufficiently comprehensive written statement isn't a valid option.

If the person being interviewed feels they'll do well in interview then "answer all questions" may be the best option.

If they don't then a "no comment interview, with a written statement" may be a better option: and while you may feel it implies guilt, the court won't draw adverse inference if the statement answers all the questions replied to verbally by "no comment".

[tomtom256]

A pre-prepared statement is just that, pre-prepared, you read it at the start of an interview, why would you then change it as the interview went on that is not the point of a pre-prepared statement? It wouldn't be comprehensive or pre-prepared as it would be constantly changing, which defeats the whole point of a making pre-prepared statement and could lead to inferences being made if something is changed in the statement during the interview.

 

Also if the solicitor/customer didn't provide the statement you advocate using, it would be a no comment interview, which makes your argument a mute point about using a comprehensive pre-prepared statements, can't have it both ways!

 

As for yes or no questions like yours posed, if they were beating their wife, then answering yes or no to have you stopped beating your wife, would not be a misleading answer, either they have stopped beating their wife or they haven't i.e. yes I have or no I haven't. How is that a poor or misleading answer? Unless the answer is a lie.

 

As this post is about work, the only obvious questions will be: What changes to you need to declare whilst claiming benefits? Have you worked during your claim to benefits? Was the work declared? Who was it declared to? When and how was it declared? Did you expect your benefit to cease or the amount of benefit awarded to change? Did you receive notification of a new award/cancellation of claim? If it wasn't declared why wasn't it declared? Could you have done more to declare the work? and Was it dishonest not to declare the work?

 

You can't really give a misleading answer to those questions unless you are lying, I am sure though that you will correct me.

 

The investgator will already have the necessary evidence from any identified employer with a list of all earnings, dates worked and date paid or the data from the HMRC RTI system showing the same information, they may even have the customers/partners bank statements were the earnings are piad into, which is why I state you may as well just go and tell the truth, if they haven't been working there will be no evidence and therefore there would be no need to IUC the customer and they would be being interviewed informally by a compliance officer.

[antone]

I think the general idea behind the "Have you stopped beating your wife?" question is that it is loaded - there is no way to answer it "yes" or "no" if you have never beaten your wife. I presume fraud investigators would avoid using this approach.

[tomtom256]

Yes and no answer questions can and do serve a purpose, but only to the extent of the issue at hand. Have you done any work during your claim to benefits? being the prime example. You have either conducted the work or you haven't, there is no maybe. Same with living together and capital cases. Do you have a partner living with you? Do you have any capital you haven't declared?

 

I understood where he was coming from, but if you were questioning someone who had beat their wife that would be a question used, but only after you have asked have you ever beaten your wife and/or had evidence that a beating had occurred. It's about the context and timing of the question.

 

Like I say the evidence will already be held so why would you beat around the bush with none relevant questions and not just ask outright about any work? It really is simply a yes or no answer matter. Obiously there could be mitigation etc but thats a different matter to the actual alleged offence.

[BazzaS]

A pre-prepared statement is just that, pre-prepared, you read it at the start of an interview, why would you then change it as the interview went on that is not the point of a pre-prepared statement? It wouldn't be comprehensive or pre-prepared as it would be constantly changing, which defeats the whole point of a making pre-prepared statement and could lead to inferences being made if something is changed in the statement during the interview.

 

Answered already at #24 and #37.

Previously answered. If a new / 'ambush' question is asked a solicitor can ask for the interview to be suspended to readvise their client / add to the written statement.

 

Note: that is ADD to the written statement, not CHANGE.

 

Also if the solicitor/customer didn't provide the statement you advocate using, it would be a no comment interview, which makes your argument a mute point about using a comprehensive pre-prepared statements, can't have it both ways!

 

Which point?. My point was that the statement doesn't HAVE to be provided at the time to prevent later S34 adverse inferences. Of course, it should be provided at the time if you want the investigators to consider it..... again, this is detailed in a previous answer

Actually, the written statement doesn't even have to be given to the investigators : the solicitor can retain it and produce it at trial, stating when it was made and that it has been kept in their possession (as an officer of the court) since.

 

It is then for court (/jury) to decide how much credence to give it.

This is rarely used. If trying to persuade the investigators not to take things further of course the statement wil be given to them.

 

You can just keep ignoring what I've written : but then I'll keep pointing out that it has already been answered and you are just ignoring it. You can always actually reply to the point raised, but then you'll have to say why it is wrong rather than just ignoring it .....

 

As for yes or no questions like yours posed, if they were beating their wife, then answering yes or no to have you stopped beating your wife, would not be a misleading answer, either they have stopped beating their wife or they haven't i.e. yes I have or no I haven't. How is that a poor or misleading answer? Unless the answer is a lie.

 

Unless they were never beating their wife in the first place!

It is an well-known example of a questing that shouldn't be asked in the first place, as it is 'leading'.

If asked (or a similar question asked), a solicitor should intervene.......

 

As this post is about work, the only obvious questions will be: What changes to you need to declare whilst claiming benefits? Have you worked during your claim to benefits? Was the work declared? Who was it declared to? When and how was it declared? Did you expect your benefit to cease or the amount of benefit awarded to change? Did you receive notification of a new award/cancellation of claim? If it wasn't declared why wasn't it declared? Could you have done more to declare the work? and Was it dishonest not to declare the work?

 

Which should be addressed in the written statement .....

for the OP, in particular, for the "did you declare the work" : the OP has already mentioned "I worked and telephone the UC after two weeks."

 

You can't really give a misleading answer to those questions unless you are lying, I am sure though that you will correct me.

 

Answered previously.

If someone is a poor candidate for an interview, gets anxious, flustered and confused, they can "lie" (or, at least give a misleading reply) because they make a mistake ..........

 

Of course, this wouldn't be a tactic used by a fair and impartial investigator, but then again the same investigator wouldn't say "Ohh, it only says its an IUC because there has been a mistake, it isn't important, just a friendly chat to clear things up" or similar.

 

When I called the DWP officer, .....

Also, he told me just to ignore the serious wording of the letter. I said it was a serious investigation, judging by the wording.

 

I felt he was just trying to get me to come in, thinking it was not too serious so that I do not get legal advice.

I feel this is a devious ploy.

 

 

The investgator will already have the necessary evidence from any identified employer with a list of all earnings, dates worked and date paid or the data from the HMRC RTI system showing the same information, they may even have the customers/partners bank statements were the earnings are piad into, which is why I state you may as well just go and tell the truth, if they haven't been working there will be no evidence and therefore there would be no need to IUC the customer and they would be being interviewed informally by a compliance officer.

 

Which suggests you see the purpose of the IUC only to confirm a pre-judged guilt, and an opportunity to plead for mercy, rather than a chance to state what has happened, and to state why no action should be taken (or any inadvertent over-payment to be paid back over time).

There may be evidence of working, the interviewee can explain the circumstances in interview OR by the statement given, which may explain the events and why there was no dishonesty ........ (based on the R. v Ghosh standards).

 

From what you have said ('If it is an IUC they have the evidence, they know you are guilty, tell the truth, plead for mercy", "if they haven't been working there will be no evidence and therefore there would be no need to IUC the customer and they would be being interviewed informally by a compliance officer") : The logical consequence of this is for people who may get flustered in an interview NOT to answer questions in IUC and even more reason to give a written statement!.

[tomtom256]

I am going to ignore the parts I am meant to be ignoring as it's obviously getting lost in transit. You have given your opinion and me mine.

 

With regards a leading question, not all yes or no questions are leading questions and they do serve a purpose at IUC's, i.e. have you worked whilst claiming? Did you deccare the work? Which are relevant questions for an allegation of working whilst claiming.

 

What would you rather was asked?

 

The beating questions isn't really relevant for a benefit fraud investigation as that particualr question would be a follow on question to have you ever beaten your wife, as previously explained, so is being used out of context. It wouldn't just be thrown out during questioning for the reasons you have already listed.

 

As for pre-judged guilt far from it. Yes evidence will/should be held, but this does not imply guilt, it only proves that the customer has worked, hence the IUC, otherwise why bother interviewing? The IUC is a chance for the customer to explain when and how the change was reported etc. Hence the questions listed. I have had many cases were a customer has actually telephoned the LA and notified them of work and an assessor has then ignored it, but with out knowing the date and time and number called from of any such call it could not have been traced and an IUC is the only way to get this information once an offence is believed to have possibly been commited.

 

The point of the interview is to prove or disprove the offence and for the customer to offer an explanation of the facts as they see them.

 

Also under Section 112 Social Security Admin Act offences there is no need for dishonesty to be proven for an offence to be committed. Dishonesty is only required for Section 111 offences or Fraud Act offences etc.

[BazzaS]

As for pre-judged guilt far from it. Yes evidence will/should be held, but this does not imply guilt, it only proves that the customer has worked, hence the IUC, otherwise why bother interviewing? The IUC is a chance for the customer to explain when and how the change was reported etc. Hence the questions listed. I have had many cases were a customer has actually telephoned the LA and notified them of work and an assessor has then ignored it, but with out knowing the date and time and number called from of any such call it could not have been traced and an IUC is the only way to get this information once an offence is believed to have possibly been commited.

 

The point of the interview is to prove or disprove the offence and for the customer to offer an explanation of the facts as they see them.

 

Which the written statement route still allows, so you still haven't said why it isn't a good option for some interviewees.....

 

 

Also under Section 112 Social Security Admin Act offences there is no need for dishonesty to be proven for an offence to be committed. Dishonesty is only required for Section 111 offences or Fraud Act offences etc.

 

But S112 requires "knows to be false" : a lower threshold of proof than dishonesty, but still knowing rather than (an even mistaken) belief that it was never false what with phoning to declare the work.

 

makes a statement or representation which he knows to be false; or

 

(b)produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular,

[Shoelover]

I think IUC's for benefit fraud are pretty unusual as in the evidence is often held as regards the facts (ie they were working and were getting benefit to which they were not entitled). It's how the situation came about that needs establishing.

Personally I have no issue with someone doing a no comment interview. I simply ask the relevant questions and that's it..

I think I can count on one hand how many no comment interviews I see a year. Solicitors usually advise people to give their first account.

I note the o/p has not replied to any one on here asking if they had worked and claimed.

[BazzaS]

I note the o/p has not replied to any one on here asking if they had worked and claimed.

 

You may have missed the OP's post of 26th April.

I worked and telephone the UC after two weeks. When I was on JSA, you had up to four weeks to report a change in circumstances. The woman I spoke to said that they would have known anyway as they have a "real time" link to HMRC.

[Shoelover]

Thanks.. Thinking if it's only 2 weeks work there has to be more to it then.

[kk3852]

IUC's for UC claims are only being conducted if they are false from the outset -ie, a false statement has been given on the non-repudiation document (claim form to you and me) and then again to the personal advisor when that claim form is gone through again.

 

The vast majority of a failure to declare work after the date of claim are dealt with by compliance as the overpayment would not reach a prosecutable amount.

 

I would concur that there is more to this than the information given.

 

 

Edited to say that some people have very bizarre ideas about what happens at an IUC with the DWP and this one-upmanship of the finer legalities does nothing to help people facing an interview.

Edited May 8, 2016 by kk3852
explanation above

[politenun]

I had my IUC today. I read out my statement at the start and the interviewer said it had covered all his questions and he did not have anymore to add.

 

I went in with a solicitor, so that probably helped as well. As I still am on universal credit, which tops up my low wages, I qualified for legal aid.

 

I think the advantage of preparing a statement is that you can gather your thoughts in your own home. I will still have to wait two weeks or so to hear the decision but I feel happy that I have been able to put my points across.

[martin2006]

Good, hope it all works out now for you.

Please remember to update the thread once you hear.

[politenun]

I have not heard from them. I had the IUC on 12 May.