Credible Witness

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  • #43900
    Anonymous
    Guest

    Morning everyone

     

    I just had a small question which I wanted some advice on please.

     

    I have an appeal against a fraud overpayment of £35K.  The claimant was imprisoned previously for his part in a famous US banking investment fraud.  His defence in that case is the same as his defence against his HB/CTB fraud.  Can I bring his previous criminal conviction up as part of my appeal submission or at the Tribunal?

     

    The details of my case are a husband and wife were claiming benefit.  Mr is the claimant whose defence against the fraud overpayment is that he didn't not know his wife had capital over £16K plus a secon property that she owned outright (which she was renting to her ex husband).  Mrs defence is that she did not know Mr was claiming HB/CTB to know to declare her capital to him.  They have since split up and are now appealing the overpayment seperately, although Mr has apparently done a runner and Mrs doesn't know where he is.  So I think I need to treat them as two seperate appeals don't I?  One for Mr addressing his defence and one for Mrs addressing her defence

    #124706
    peterdelamothe
    Keymaster

    The first one is easier I think. It is a fact that fraud has occurred and a matter of public record so I see no reason not to (and I have done so on a few high profile cases). Tribunals and UT certainly want to know all the facts.

    The second is much trickier. The claimant is the liable person as there is no “joint claim”. Making the partner liable is complex although there are some useful threads on this on the site. As a minimum, you need to have sent out decision letters in her name alone (as she has appealled I presume you have done something similiar) because she as a partner has a very different defence…i.e. you need to establish first that she (partners in general) can be legally liable for an overpayment before you can establish that she is liable for this one. Not easy and very limited HB caselaw on this. DWP’s position is of course that partners CANNOT be liable even in cases of fraud. I had a long discussion on this with them; they did say that if the matter got to UT they would not support the partner’s position in cases of fraud.

    It is possible for both appeals to be linked I think….Tribunals would prefer it even if just done on the same day before the same judge.

    #124707
    Anonymous
    Guest

    Thank you Peter. No we have never sent notification letters to Mrs ever, just to Mr. Does this mean that my decision on Mrs appeal is that she cannot be liable for the overpayment?

    #124709
    peterdelamothe
    Keymaster

    You cannot recover from Mrs unless you have made a decision that she, personally, is liable. Without such a decision, there can be no appeal and a Tribunal has no jurisdiction. A letter addressed to Mr and Mrs MIGHT be sufficient (athough I am not convinced because the issues are different). If the partner has been convicted of fraud in her own name, a Tribunal will have a lot less sympathy but you still must have made and notified a decision that the OP is recoverable from both.

    Here is a post from another thread that might help:

    “it’s not just a case of notifications. Before you even get to that point, the overpayment has to be lawfully recoverable from the partner.

    The partner is a legitimate “target” IF, and only if, she positively misrepresented a material fact out of which the overpayment arose. Bear in mind, this is different to failing to disclose – a partner is under no duty to disclose for HB/CTB purposes.

    Once a person has been correctly identified as a target, ALL parties / targets must be notified of the overpayment and such notifications must contain the same substantive content including the names of all the parties that are targets”.

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