Income from criminal act

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  • #38496
    lynnej
    Participant

    I have a request to backdate a claim, and there is sufficient good cause to enable this but I am having problems getting proof of income. The claimant advised us he had started work, and has now told me he was contracted for 4 days a week, 10 hours per day, at an hourly rate of £6.40. This would give him a gross income of approx £256 and would probably mean he did not qualify.
    However, he has told me over a 6 week period that he worked, he was only paid £20. He was so fed up he helped himself to the takings instead! (He has been prosecuted for this) He has no evidence of the £20 he was paid and feels he cannot now ask the employer for proof.
    I don’t know how much of the takings he helped himself to, and can’t see that I could take this into account. It doesn’t seem that he paid any rent with the money he took.
    I’m tending to think that as he cannot provide evidence of income I cannot award the backdating, unless I use an income figure relative to what he should have been paid, which will mean no entitlement anyway.
    Any advice?

    #108568
    Anonymous
    Guest

    (He has been prosecuted for this)

    Can you get a copy of the Court transcripts, or whetever paperwork was issued outlining the offence? I’m sure there would be some record of the amount of money he took. In any case, if it was a one-off theft, I don’t see how this could be treated as income.

    Assuming good cause is shown, I think you need to award backdating, subject to any inferences you may decide to draw if the claimant refused to answer questions or provide evidence that he can reasonably obtain.

    Maybe you should consider notional income – was it the same employer who paid him £20 for those 6 weeks that later paid him £6.40 per hour? Do you know how many hours he was working for those six weeks?

    #108571
    Kay_Tade
    Participant

    [quote=mwigg1]Maybe you should consider notional income – was it the same employer who paid him £20 for those 6 weeks that later paid him £6.40 per hour? Do you know how many hours he was working for those six weeks?[/quote] Agree with mwigg1, apart from the notional bit.

    It seems you already think he has good cause so:

    If he was working, you use whatever earnings he received for the period, £20, for the period it relates to. If at a later date it is found the employer should pay him his rightful earnings, and then did, maybe after legal wranglings, then you revise the earned income you used and reassess based on the actual earnings received.

    Income is treated as belonging to the period it relates to. There is no case for applying a notional income in this case, I assume no other means of income, as he has no access to any other income. At least till he picked the till, [No pun intended] 😀 , and this counts as capital.

    #108573
    Anonymous
    Guest

    I was referring to paras 9 and 10 or reg 42 (paid less than going rate) rather than paras 1 or 2 (deprivation or income available on application). If there was cash in the till for the taking, I don’t see why the employer couldn’t have paid him more than £20!

    #108576
    Kay_Tade
    Participant

    [quote=mwigg1]If there was cash in the till for the taking, I don’t see why the employer couldn’t have paid him more than £20![/quote] mwigg he has been charged for theft, that’s why he can’t deprive himself. Available on application is by legal means no matter what the claimant thinks 😀 so he can’t just “take it” even though he worked for it.

    #108577
    Anonymous
    Guest

    I’m not suggesting he has deprived himself of income… just that he was paid less than the going rate for his work and his employer could probably have paid him at least minimum wage

    #108581
    Kay_Tade
    Participant

    I don’t see an employment tribunal/court action and/or win in the horizon that will rectify the wrong done to the claimant, especially with him “robbing” the employer, you could argue he could/should have left the job as he was not paid what was promised but that’s not the same as depriving yourself an income.

    #108582
    Anonymous
    Guest

    It doesn’t matter what decision a hypothetical employment tribunal might reach.
    It doesn’t matter that the claimant could or should have left the job when he was only paid £20.
    I am not suggesting that the claimant has deprived himself of anything – see my previous posts.

    Reg 42(9) says: “where a claimant performs a service for another person; and that person makes no payment of earnings or pays less than that paid for a comparable employment in the area, the relevant authority shall treat the claimant as possessing such earnings (if any) as is reasonable for that employment unless the claimant satisfies the authority that the means of that person are insufficient for him to pay or to pay more for the service.”

    None of the exclusions in para 10 seem to apply.

    So: if the employer COULD have paid minimum wage for those six weeks, that is the amount of income you use. The onus is on the claimant to prove that the employer was unable to pay the going rate.

    #108585
    Kay_Tade
    Participant

    Ah :exmark: must say that did not occur to me see your point now 🙂 . With the lenght of time of employment and the theft by the claimant, was just thinking how best to pay the claim, then again he did get paid in end 🙂 .

    #108587
    Kevin D
    Participant

    Just to add, I don’t think the conviction (for theft?) would negate proceedings to an Employment Tribunal. The two issues engage entirely different legal considerations in separate legal jurisdictions. It’s difficult to tell, but I get the impression (no more, no less) there is more to this than is immediately apparent.

    #108590
    Andy Thurman
    Keymaster

    Seems to me (on face value as presented) that this claimant has been very unlucky and I’m not sure that 42(9) applies in this case. He didn’t agree to do work for less than the going rate – his employer agreed a ‘reasonable’ rate but hasn’t paid it.
    There but for the grace of god etc…Stealing from the till isn’t “right” but I can understand why someone, in desperation, made such a bad judgement call.

    My only question over this is whether the claimant’s statement is completely true – essentially, did he get paid? I’ve no experience on which to base this, but would the prosecution have succeeded if there was evidence of legally due wages not having been paid?

    Perhaps you could approach the former employer for a statement (would your claimant agree to this?).

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