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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71031
Experience:  Over 5 years in practice
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My sister has just had an appeal rejected for income support

Customer Question

My sister has just had an appeal rejected for income support and the benefits agency are looking to recover the £10000.00 which has already been paid to her over the last 3years. This all came about because her ex partner still gets his mail delivered at the home address. He does this because when he not at his mothers in Sussex, he stays in the area where he works as a odd job man and using the back yard of the house for storage. He also spends time with the two children they have.

The benefits agency did use surveillance for a period of approx 3 months and noted the coming and goings. They did state however that in the whole time of the surveillance, they never were together and never seen him enter the property (except for the yard). They are now sending letters saying that she's going to court which besides from losing her benefits she frightened of getting a criminal record. Please do you have any advice for her?
Submitted: 4 years ago.
Category: Law
Expert:  Jo C. replied 4 years ago.

Thank you for your question . My name is Jo and I will try to help with this. What is she going to court for - is this civil or criminal court?
Customer: replied 4 years ago.
Im not entirely sure but I think it's to recover the money she's already been paid as they say its an overpayiment.
Expert:  Jo C. replied 4 years ago.
Ok. Is the issue that she's been claiming as a single person and, in fact, then she has a partner living there?
Customer: replied 4 years ago.
That's what they've said but its not the case. She been on her own for over 4 years now. He was helping her out at first but then stopped that's why she started claiming benefits. He's also not paying the mortgage on the property so she also got that to contend with.
Expert:  Jo C. replied 4 years ago.
Does he stay over sometimes? How often roughly?
Customer: replied 4 years ago.
Very rarely. Maybe if one of the children are poorly or if Tracy's staying over at mine (I live approximate 11 miles from her). He has stayed in his van out the back a few times but normally he stays with a family friend who lives in a flat not far from the property (next street)
Expert:  Jo C. replied 4 years ago.

Is she prepared to risk a conviction or does she need to avoid that at all costs?
Customer: replied 4 years ago.
She wants to fight it but can't risk getting a conviction. She never thought it would go this far. She's been very open and honest with them, even asking them to visit the house.
Expert:  Jo C. replied 4 years ago.
Ok. I'm sorry for the delay. I lost my connection. I just need about 10 mins to type out an answer for you if thats ok?
Customer: replied 4 years ago.
The papers are from HM COURTS & TRIBUNALS SERVICE.
Expert:  Jo C. replied 4 years ago.
Thanks. That would change things.

Is it possible that you could scan and email what you have to [email protected] ?

Then we can ascertain whether this is civil or criminal. It will slow things down I'm afraid but a better answer first thing tomorrow is probably better than a sketchy answer tonight.
Customer: replied 4 years ago.
I do not have the papers to hand & my sister does not have an Internet connection. Like I said earlier, the papers are from HM COURTS & TRIBUNALS SERVICE. She has also had debt collectors sending letters asking her to pay £10 per week.
Expert:  Jo C. replied 4 years ago.
But the question is whether this is a criminal or civil matter.

Clearly the debt collectors suggest a civil but the HM court service suggests criminal. It would change the answer.
Customer: replied 4 years ago.
Relist: Incomplete answer.
Expert:  Jo C. replied 4 years ago.
Would it be possible to give me the information I asked for ?

Alternatively I can answer now but it may be wrong because I don't have full particulars ?
Customer: replied 4 years ago.
I've asked her for the documents but she is unwilling to have these sent to someone unknown to her so if you can give me some advice on civil and criminal I would be most grateful. Also she did mention that in these documents, they asked if she was going to attend court? I don't know if that make a difference.
Expert:  Jo C. replied 4 years ago.

I ca try to give you both outcomes generally and I suppose if you need more specifica you can ask.

I will type out am answer now for you
Expert:  Jo C. replied 4 years ago.

The practical reality of this situation is that it really depends entirely on what exactly has taken place so far.

If these documents are a summons to the criminal courts then she is being prosecuted. These prosecutions are on the increase so that could be happening. It must be said that £10k is not the largest overpayment but its still of a value that they would be looking to prosecute upon. They will have to prove that he was there and sharing expenses. That doesn't mean that he was living there permanently. The issue is whether they were as a couple 'sharing expenses'. People can share expenses and live elsewhere - e.g soldiers on active service in Afganistan are still sharing expenses with their wives at home. They may be relying on the surveillance.

It is very difficult to say here whether this is a criminal prosecution. I have to say that the fact of the surveillance suggests that it is but it is possible that they have concluded that there isn't enough evidence to support it from the surveillance.

If this is just a civil matter then that chances everything. They do sometimes just sue for the money back. Possibly their concern is that they cannot prove dishonesty. If so, then she can defend the matter but the risk is that they will prosecute her under the criminal law and she wants to avoid a conviction at all costs. If this is the case then she has everything to play for by negotiating with them. If she wants to give me more information about that I might be able to offer more.

Equally, they may just plain be unable to prove the dishonesty and so there is no concern about prosecution.

If it is just a civil matter then she can either contest it or admit the claim and offer to pay in instalments. They will accept very low repayments.

Can I clarify anything for you?

Customer: replied 4 years ago.
Thanks, I will try to get more information from her (documents etc)
Expert:  Jo C. replied 4 years ago.
Well, I don't necessarily need the documents if she would rather not. If you can just give me information from them?

Customer: replied 4 years ago.
I have spoken again to my sister and she has said that she is going to court because she is disputing they decision and not because they trying to issue criminal charges. She said they wanted her to pay back the "overpayment" of £10000.00. They have asked her if she wishes to attend court but have advised her that they is a back log of cases so it may take a while and that the place of the hearing may not be local. She has also received a copy if all the evidence against her which includes him making payments to the gas & electric bills but she said this was because she greatly in arrears with most her bills and the payments he made were to prevent her being cut off. They also have both they names on the mortgage but this is currently in arrears for £2000.00.
Do you have any further advice for her?
Expert:  Jo C. replied 4 years ago.
Well, its as I've said really.

What did she want to know about this exactly?
Customer: replied 4 years ago.
She's quite frightened by the whole experience, we all are. Would just like some advice on what would be the best course of action to take like should she attend court or if there's any legal help out there for her that's not legal aid ?? That type of thing.
She can't really afford to get a solicitor to represent her so need as much help/ advice as you give.
Expert:  Jo C. replied 4 years ago.
If she wants to contest it then she will have to attend and give evidence.

There is no legal aid for the civil claim. She would get legal aid for any criminal action almost certainly.

She doesn't necessarily need a solicitor though. You can self represent. This is a simple factual dispute.