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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71142
Experience:  Over 5 years in practice
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My brother and wife have been getting money to help pay the

Customer Question

my brother and wife have been getting money to help pay the rent from plymouth council. He has two small boys and is on a low income. They always send pay slips etc and any other info that the council wanted. Suddenly they received a letter saying they owe £7,000. My brother did not know why and said can you send paperwork to prove this but he agree to pay what he could to pay off the amount. He has now managed to pay them £1,000. Tonight at 7.00pm a man knocked on the door with a court summonds and a 700 page document that is suppost to be the proof that he owes £7,000 which he had asked for 6 months ago. Also told that he would have to appear in court on the 20th of this month. He has no money and has been paying off this amount as much as he can with no idea why he is having to pay it. what should he do.
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
Are you asking if he should plead?
Customer: replied 2 years ago.

He wants to plead not guilty because they did not know that the council had been overpaying them. They have always given them all the information they asked for and now they are taking them to court. This is going back over 5 years and they say they owe them £7,000. As i said before they have been trying to pay it off without even knowing why they owe it. They are on very low income and are finding it hard to pay the £1,000 they have already sent them. The 700 document was asked for 6 months ago, but in the mean time they have been trying to pay it off. Now they get the document and a court sumonds at the same time. Should the council not be the ones proving that my brother owes the money, they said it is up to him to prove that he dosn't. thanks

Expert:  Jo C. replied 2 years ago.
They will be able to prove he owes it. There will be no doubt that it was overpaid.
The only question will be whether he acted dishonestly or not. You do not say why they allege that here. I imagine they are saying there was some form of false declaration or another. If so, sometimes they can be put down to mistakes and sometimes they can only be explained by fraud. It tends to come down to the nature of the error and the degree of persistence shown.
If he believes he did not act dishonestly and he is summonsed for the aggravated offence then he should plead not guilty and contest the matter.
Can I clarify anything for you?
Customer: replied 2 years ago.

Hi Jo

If the council has asked for there payslips each year and they have sent them all to the council it looks like the council have made a mistake and then noticed it. It was not done dishonestly because they don't know why they owe it. It has taken the council 5-6 years to suddenly deceide that they owe them this money. What i can't understand is why they did not notice in all the years running up to now. Each year my brother would have sent all his and his wifes payslips and not in any of the years previously did they say that there was a mistake and there had been an overpayment. At least if they had let them know in the first year they would have only owed them just over £1000. thanks.

Expert:  Jo C. replied 2 years ago.
Well, I imagine they just didn't check the records. It doesn't mean that claimants don't have a duty to disclose I'm afraid.
There is some case law that says that you shouldn't ve asked to repay in very limited circumstances but that doesn't apply here because he is being prosecuted rather than asked to repay.
Customer: replied 2 years ago.

They initially asked him to pay so he has been trying to do that and has so far paid £1000. Can they just take him to court even though he is trying to pay back something he did not know he owed. Do you think that the court will say he has to go on paying maybe but at a lesser amount, i thought so long as you are trying to pay it back you can't get taken to court.

Expert:  Jo C. replied 2 years ago.
Yes, they are not suing. They are prosecuting under the criminal law.
In any event, if they say the repayment is inadequate they could sue. They are not under a duty to accept payment in instalments. They will usually because of the nature of benefit overpayments.
Customer: replied 2 years ago.

It just seems to me that my brother asked them over 6 months ago to send him the paperwork so that he could see how this happened. Then late at night they drop it off with a court sumonds. What is the worst that could happen to him, bearing in mind he never knew he owed it to start with and then when he did he tried to pay it off. thanks

Expert:  Jo C. replied 2 years ago.
It depends.
It is not really possible to tell from the information you have. It is not really clear what the false declaration actually is. It is not the highest overpayment but that isn't the only aggravating feature. It depends wheher they are alleging false declaration from the start of failing to declare a change in circumstances.