The DWP ,the law and me

I am not legally qualified and I cannot therefore comment on the DWP decision makers legal liabilty .However prior to  posting the last of my DWP paperwork I thought I would share some legal definations

These are all from the Crown prosection services own site.

1/

The borderline between criminal and civil liability is likely to be an issue in alleged Fraud Act offences particularly those under Section 1. Prosecutors should bear in mind that the principle of caveat emptor applies and should consider whether civil proceedings or the regulatory regime that applies to advertising and other commercial activities might be more appropriate. Not every advertising puff should lead to a criminal conviction but it is also the case that fraudsters prey on the vulnerable

offences

Section 1 creates a general offence of fraud and introduces three ways of committing it set out in Sections 2, 3 and 4.

  • Fraud by false representation (Section 2); (see footnote 1 for my example)
  • Fraud by failure to disclose information when there is a legal duty to do so (Section 3); and  (see footnote 2 for my example)
  • Fraud by abuse of position (Section 4). (see footnote 3)

In each case:

  • the defendant’s conduct must be dishonest;
  • his/her intention must be to make a gain; or cause a loss or the risk of a loss to another. (footnote 4 for my case)
  • No gain or loss needs actually to have been made.
  • The maximum sentence is 10 years’ imprisonment.
  • That a defendent
  • made a false representation
  • dishonestly
  • knowing that the representation was or might be untrue or misleading  (see my footnote 5)
  • with intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss.

The offence is entirely focused on the conduct of the defendant.

futhermore by omissson

The defendant:

  • failed to disclose information to another person
  • when he was under a legal duty to disclose that information
  • dishonestly intending, by that failure, to make a gain or cause a loss.

futhermore

Fraud by abuse of position (Section 4)

The defendant:

  • occupies a position in which he was expected to safeguard, or not to act against, the financial interests of another person 
  • abused that position
  • dishonestly
  • intending by that abuse to make a gain/cause a loss

The abuse may consist of an omission rather than an act.

 

Like the other two Section 1 offences, Section 4 is entirely offender focused. It is complete once the Defendant carries out the act that is the abuse of his position. It is immaterial whether or not he is successful in his enterprise and whether or not any gain or loss is actually made.

As with all the Section 1 offences, though there need be no consequences to the offending, the existence and extent of those consequences will be very material to sentence, compensation and confiscation.

 

Elements of the Offences

False representation

Section 2 (2) defines the meaning of “false” and Section 2 (3) defines the meaning of “representation”.

A “representation” means any representation as to fact or law, including a representation as to the state of mind of the person making the representation or any other person (Section 2 (3)). An example of the latter might be where a defendant claims that a third party intends to carry out a certain course of action perhaps to make a will in someone’s favour. It may be difficult to prove to the necessary standard that the Defendant knew the state of mind of a third party, but easier to prove that he knew what it might be.

A representation may be express or implied (Section 2 (4)). It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation may be expressed.

A representation can be made by omission, for example, by omitting to mention previous convictions or County Court Judgements on an application form.

An offence may be completed when the defendant fails to correct a false impression after a change in circumstances from the original representation (if the representation may be regarded as a continuing series of representations).

(my footnote 6 see below)

 

Failure to disclose information

There is no requirement that the failure to disclose must relate to “material” or “relevant “information, nor is there any de minimisprovision. If a Defendant disclosed 90% of what he was under a legal duty to disclose but failed to disclose the (possibly unimportant) remaining 10%, the actus reus of the offence could be complete. Under such circumstances the Defendant would have to rely on the absence of dishonesty. Such cases can be prosecuted under the Act if the public interest requires it, though such cases will be unusual.

It is no defence that the Defendant was ignorant of the existence of the duty, neither is it a defence in itself to claim inadvertence or incompetence. In that respect, the offence is one of strict liability. The defence must rely on an absence of dishonesty and the burden, of course, lies with the prosecutor.

Defamation of Character ,Libel and Slande

Definitions of defamation

1. You should be on guard against making statements which could be defamatory. A defamatory statement is one which injures the reputation of another person: it “tends to lower him in the estimation of right-thinking members of society generally1“.

2. Such a statement constitutes a “libel” if it is:

  • published (publication, for these purposes, is simply the communication of the defamatory matter to a third person)2; and
  • in writing, print or some other permanent form.

3. A statement will amount to a “slander” if it is

  • published; and
  • made orally or in some other transient form.

4. An action for defamation can be brought by:

  • an individual;

Section 1(1) of the 2013 Defamation Act introduced a new test which provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

There is also a lesser know offence of Misconduct in a public office

Defined as

‘A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.’

(see my footnote 6)

 

Wilful neglect or misconduct

  • Nature of the neglect or misconduct

The wilful neglect or misconduct can be the result of a positive act or a failure to act. In the case of R v Dytham [1979] QB 722, for example, a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death.

There must also be an element of knowledge or at least recklessness about the way in which the duty is carried out or neglected. The test is a subjective one and the public officer must be aware that his/her behaviour is capable of being misconduct.

  • Abuse of the public’s trust

Public officers carry out their duties for the benefit of the public as a whole. If they neglect or misconduct themselves in the course of those duties this may lead to a breach or abuse of the public’s trust. 

  • Seriousness of the neglect or misconduct

The behaviour must be serious enough to amount to an abuse of the public’s trust in the office holder. In R v Dytham, Lord Widgery said that the element of culpability:

“… must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.”

Examples of behaviour that have in the past fallen within the offence include:

  • wilful excesses of official authority;
  • ‘malicious’ exercises of official authority;
  • wilful neglect of a public duty;
  • intentional infliction of bodily harm, imprisonment, or other injury upon a person;
  • frauds and deceits.

 

Now to my DWP paper work 

I apologise to readers of my previouse posts to who some of

this paperwork will be familar but as all this is relevant to the DWPs  false claims in their statement to the tribunals I feel its neccassary to give a brief summary

In the extensive statment to the tribunal the DWP made the following points which they claimed are based on the ATOS health care proffesionals report

All the DWP decision makers repeadtly refer to the ATOS report as the basis for their statments.

atos dwp say why pip ended

 

DWP decison makers claim

1/ All DWP decision makers and staff claim A physical assesment occured

I assert it did not

Atos are clear it did not

As in my earlier post I produce the ATOS  assesors  own words

atos letter support

I repeat this here as DWP make repeated claims about my physical abilities.I wish to be clear here as DWP try to infer I claimed to be unable to walk ,despite personally telling them I walk often and sometimes for more than a mile.I have never claimed to be unable to walk or unable to walk long distances if needed .What I claimed and what is true is that its painful to walk long distances and on some days unsafe due to my epilpesy and that I have had some fairly bad falls even when not feeling unwell because I have knee problems.

I have also not claimed to be unable to lift things,only unable to grip and to lift anything heavy repeadtly and safely .I often drop things and I cant open most jars etc

 

2/ DWP claim I had behaved normally during the ATOS assesment

I assesrt that I didnt but rather was extreemly distresssed and had panic attacks

ATOS agrees with my assestions and confirms DWP lied

I use the ATOS  complaints handlers,the ATOS assesors and her supervisors evidence

pip evidence sent atos confirm

pip 3

pip 3

This is the evidence refered to as within the report ,and it is indeed in the report,theres more about PTSD etc recorded but I think this is sufficient,this also confirms tlower down the page that there was no physical examination

asserspors report atos

3/ DWP claim I had no proof of medication other than the Lamotrogine,

ATOS  confirm this is also untrue  assesor saw and recorded all the medication shown below (from my day of the assesment images)

 

and DWP  records show it is untrue… DWP itself records recieving  prescription lists and medication from me independtly of the ATOS records

medicaztion at asesment pipevidence listr medic

next

4/My hands were fine and grip normal,again aside from medical evidence

ATOS  confirm this is a lie .The atos asessor clearly states that they are not and my grip is not normal.In later sections she also mentions difficulties and pain

loss of grip atos

 

 

5/ DWP claim that I was lying about having ESA until August 2018 and persuambly about my Universal credit status .DWP had these letters and their DWP clerks number is written on them to show they are part of the records they used.

My  proof this is a lie comes from

The yorkshire tribunals service AND DWP

tribunal confrimation esa pip.jpg

My tribunals letter from the Yorkshire Tribunals service about my ESA hearing in June 2018 , I was being paid ESA for at least a year prior to the hearing ,I was in receipt of it at the time of the hearing and for several months afterwards until m,y change to Universal credit .my status remained unchanged  in the transfer across.

DWPs own letters and records confirm my claim that the decision makers lied in their statment to the tribunal

This letter  that confirmed the end date and that it was only due to my transfer ot Universal credit

esa end date dwp letter

 

 

6/ DWP claim That DWP records showed I had not had ESA after 2017 because I failed to meet the criteria ,this is an appaling lie as its designed to discredit me and lies about DWP own records

see above

7/DWP claim  that I told DWP I had a pending ESA appeal of which they had no record and no record of a succesful tribunal

I dont need evidence to prove this is a lie as its nonesentical

I am on Universal credit ,transfering to universal credit automatically ends an ESA claim ,you cant go back and decide you want ESA  it would make no sense for me to say I had an ESA appeal pending.

Nor would  it make sense for me to  claim to have a pending appeal when I had a completed and succesful tribunal appeal from just 4 months before the PIP asesment

8/ DWP claim That I had no diagnosis or medical input for PTSD and had not been prescribed medication.They cite ATOS as the source for this and my lack of medical evidence

This is a lie ATOS  confirm DWP lied

I will just answer this with the  ATOS assesors report

ptsd diagonoses atos

medicaztion at asesment pip

9/DWP claim That  I claimed PTSD stopped me being able to cook ,clean,wash myself ,walk etc,a claim so utterly preposterous I am not going to justify it with an indepth response.Heres a few lines from the ATOS assesment theres many others

prroof I didnt claim every activity is affected by PTSD

I didnt say I cant do anyting because my PTSD stops me  and I have always conceeded I am perfectly able to perform several of the PIP tasks .I can eat and drink unaided and cant personally figure out how PTSD would affect washing ,bathing .,toilet habits ,my hearing and sight etc .Its a stupid and baseless claim designed purely to create the impression that I exagerate and lie .I have ALL my DWP responses and in no place whatseover do I make this claim ,nor does it appear in the ATOS report .It has been manufactored.

DWP decision makers Kerry Lees report to the Tribunal ,also citing David Coventry and Sam Taylor .I also wish to note that Ms Savage head of PIP asssesments claimed earlier to have made enquiries to ensure that my complaints were unfounded.I have her letter .

Here are the main sections of the DWP tribunal paperwork ,in light of my earlier points ,its worth repeadting what they claim is their alleged basis for their health assesments

atos dwp say why pip ended

and again from my review

statment to tribunal about no anxity and claims the HP says this in her report

 

 

DWP staffs statments to the tribunal

 

statment to tribunal about no pain medication since 2014

statment to tribuan labout my esa long version

statment that exam took place

A brief reminder of the alleged source of all this “information ”

earlier dm statment which DC confirmed

statment to tribunal about no anxity and claims the HP says this in her report

justification that epilpesy doesnt count tribunal s

carry pans comment

no evidence of ongoing distress pip statment to rtribuan

pip 1 esa facts

uncotrolled fit note tribunal comment ,find dates

In regard to this the fit note dates show that it was the second Epilpesy fit note which was written by a new GP pratice ,not the uncontrolled Eplipesy fit note which was written by a GP familar with me

uncontrolled epilpesyt fit note date

My house lease date shows a date 11 months previouse to this date ,My house lease for the second fit note shows I had only been there for a couple of weeks

epilpesyt only fit note date

It is clear DWP own argument stands against it in this instance ,though both  fit notes show significance interference in my daily life and uphold the claim that none of the orginal award should have been removed.As does the ATOS HP report and all standard medical knowledge.The tribunal upheld this

 

 \Extra information

 

I have contacted the head of PIP reassesments Ms Savage and sent her the relevant paperwork asking for her comments .Several months earlier Ms Savage was personally responsible for writing in response to an MP s query that the ATOS report was the source of DWP decisions and claimed to have checked on my complaints

from Ms savages letter on importance of DWP atos report

Though interestingly DWP clerk who wrote the statement to the tribunal says

bad treatment of ATOS assesort is irrelevant to their report

Essentially to me at least this seems to say that it doesnt matter how unqualfied a health care proffesional is ,or how badly they behaved ,their report is still valid.

The whole focus of DWP is on the central importance of the health care proffesionals report and how it is the basis of the decision makers reports and award of points.

Yet the overwhelming evidence of my case shows that this is not the case .

It seems clear to me that DWP had decided to stop my PIP ,they sent the Assesor purely to claim to have done a reassesment .I can find very little evidence that the report was used extensivily at all .There is not one single part of the report that supports removing my original PIP basic award,but several parts looked at objectvily support increasing it.The tribunal did increase it.I went from no PIP to full daily living and a mobilty compoment .

Of note

I think it worth pointing out that courts have repeadtly made judgements stating that the health care proffesionals reports have no significant medical value .

Also that the claim that ESA and PIP awards are entireily seperate is not true courts have ruled that evidence of points in one area of one award are relevant to points in corresponding awards.DWP clearly know this from the amount of time they spend dealing with my ESA related argument and by noting prominetly in their case that I had ESA stopped for not meeting the criteria .These are both lies ,but to cite not meeting the criteria shows DWP were specifically addressing the legal point.

DWP staff are given regular updates on appropriate legislation and their reports in my tribunal paperwork show that they cite these as they see fit .Though clearly only the cases that will support the decion maker ,not those supporting the claiment.It is wise to go over your PIP decision and look up legisation that is applicable to your points.

 

FOOTNOTES

Footnote 1

An example of this might be  for example telling a lie to deliberatly discredit someone

and in such a way as to present a reason to refuse them a payment of money rightfuly their

pip 1 esa facts

Footnote 2

for example witholding evidence of medication where it is relevant to a claim

if you were to tell a court for example

statment to tribunal about no pain medication since 2014

when you knew otherwise

evidence listr medic

medicaztion at asesment pip

medication list pip atos

 

Footnote 3

An abuse of power might for example be where you represent a goverment body and have the power to decide on benefits and  decide to make untrue statments in order to stop them and meet goverment quotats for benefit cuts .And were any  dishonest claims you make about that goverment  bodies records will have inherent value which would not be the case for the person who you choose to defraud.

Footnote 4

For example if a person were to use falsified information to claim benefits ,or vice versa if someone who was responsible for awarding benefits used falsified information in order to refuse benefits to someone legally entitled to them .By default if you falsly justify removing someones benefit you by implication accuse them of benefit fraud because you claim they knowingly gave false information in order to gain money.This is the unspoked subtext in claiming someone isnt as ill as they claim in their statments.

Footnote 5

for example if you were to both

a/ claim to have read an important document

and

b/ claim that document allowed you to prevent someone having money they were entitled to .

c/ the said document did not infact do so ,but rather you had falsly represented its contents to the financial detriment of the victim

i agree dc

atos agrrement by david coventry.jpg

sam taylos name

statment to tribunal about no anxity and claims the HP says this in her report

Footnote 6

for example were someone to read a report by another which lied about an important finding and used that lie to deny the victim money to which they were legally entitled .If that person knew that a lie had been used to deprive the victim of income yet reaffirmed the lie they are guilty ,but are also guilty of not correcting statments they know to be erronous .

Futhermore superiors are to be helpd responsible for their employees misconduct   If they are alerted to their employees fraud but no nothing to prevent it or correct wrong doing.They are even more liable if they claim falsly to have completed an investgation into their employees and confirm that there has been no wrong doing.If this assertion is made to a member of goverment I feel sure that the offence would  have more seriose consequences still.

Footnote 7 

defamation of character,

this might for example be if somone were to accuse another person of telling lies to gain money un false pretences ,for example aby ccusing someone of lying to a goverment body such as DWP in order to claim money under false pretences .Anyone accusing another person of this clearly comites defamation of character.

Likewise if someone were to lie in order to make another person appear untrustworthy to a court or tribunal .

 

 

 

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About hathawaysofhaworth

I am a Historian and author living in the north
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