Author Archives: Auntie

Refusing a Blue Badge

Dear Auntie,
Can a LA refuse to issue a Blue Badge to a person, who qualifies on a number of grounds for a BB. The refusal is based on the decision made by the Care workers that the applicant I bed bound and will not be physically able (unless by Ambulance) to leave the care site?
The person who has power of attorney for BB applicant has submitted along with proof a BB request for renewal. The BB applicant has been bed bound for a number of years. Social care has stopped the process on the above grounds stating “potential misuse” as their reason.
Are we as a LA able to do this? I can see where the Social care team are coming from but we have nothing on system to suggest the BB held previously was misused. I support the decision in principal but is it lawful?
A Worried Investigator.

Dear Investigator,
What a cracking question!
Under regulation 8 of the 2000 Regulations (SI 2000/No 682) (as amended by (SI 2011/2675)), a local authority may refuse to issue a Blue Badge for a number of reasons ; this includes a case where :
… d. the local authority has reasonable grounds for believing that the applicant … would permit another person to whom the badge was not issued to use the badge.
Consider this :
1. The person for whom the application is being made is, in principle entitled to a badge.
2. The only use of the badge that is lawful would involve the person potentially entitled being present in the vehicle or being collected by the vehicle.
3. The social care team are prepared to state unequivocally that the person potentially entitled can only travel by ambulance ; an ambulance does not require a blue badge!
4. It follows that the person (on whose behalf the application is being made) would be unable to use the badge, nor would another be able lawfully to use the badge on their account.
5. This means that, in any circumstances where the badge was to be used, the holder would have to have given permission for another person to whom the badge was not issued to use it. (The exception to this would be if the badge had been stolen/lost and was being misused.)
6. Following that logic (that any use would have to be unlawful), this follows that the only reason for applying would be in order to allow someone else to use it. Reg 8(d) is thus engaged and the refusal lawful.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/519091/blue-badge-scheme-local-authority-guidance-paper.pdf page 36
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Intelligence and Evidence – Keep it or Bin it?

In response to a number of queries on retention, I’ve had a wee think and come up with three little rules for you to follow, and a little advice on what else to do.
1) Keep sufficient for audit purposes for six years following the end of the current year – this is fairly standard for audit purposes in both the public and private sectors.
2) Keep unused material according to CPIA rules.
3) Everything else – keep only as much as you need, and keep it for just as long as you need it (DPA rules).

We suggest that prosecution paperwork is kept for six years following release from prison, six years where there is a conviction but no prison term or two years if there was an acquittal or the case was withdrawn.

If your information is held on a system then bulk retention for a six-year period seems acceptable, as long as you have a process for removing unnecessary material (spurious or malicious) sooner, if you deem it reasonable ; you should also ensure that anything that is required beyond that period can be retained.

If you wish to keep material (intelligence) for a long period of time, there is a police scheme called the National Retention Assessment Criteria. It’s quite helpful, although (obviously) aimed at the police so… The key points are:
• How much is an individual’s privacy invaded by retaining their personal information? This must satisfy the proportionality test.
• Before disposal, you should be confident that any records you dispose of are no longer necessary for investigative purposes.
• You should have a consistent approach to retaining investigation information. Creating and following a process (an a process map) is key to this.
• Generally there is no issue with searchable records (as long as they are accurate, adequate, up to date and necessary) being held for a minimum of six years from the date of creation. These are used, for example, to identify offending patterns over time, and to help guard against individuals’ efforts to avoid detection for lengthy periods
• Retention beyond the six-year period should only happen following a review, if it is clear that it is still necessary to keep the record for your purposes. The NRAC template may be useful in helping to establish whether or not information is still needed for a legitimate purpose.

Auntie

Statutory Consultation on the Revision of PACE Codes

The Home office is undertaking a statutory consultation on the revision of PACE codes C, E, F and H, which cover detention and interviewing, audio recording, visual recording and terrorism.  The consultation closes on 6 December 2017.

THIS IS IMPORTANT for ALL INVESTIGATORS, as it covers recording by devices other than ‘normal’ interview recorders and explicit rights for suspects attending voluntary interviews.

There are draft versions of codes C, E, F and H to view which cover :

  • code C – the detention, treatment and questioning of persons detained under PACE
  • code E – the audio recording of interviews with suspects
  • code F – the visual recording of interviews with suspects
  • code H – persons detained under the terrorism provisions

Responses must be received no later than Wednesday 6 December 2017.  If you’re involved in investigations, don’t miss your chance to comment!

www.gov.uk/government/consultations/revising-pace-codes-c-h-e-and-f

Open Source and Housing Investigation

Dear Auntie,
Our legal team has started making a fuss about the investigation team using their own Facebook accounts.
The investigation team only use Facebook as an intelligence gathering tool, and only view publicly open accounts, we don’t ‘make friends’ (as I’ve seen to my despair, that some Local Authorities and Housing Associations are doing).
I remember reading something last year about forthcoming changes to Facebook and local authorities, but for the life of me I can’t find it anywhere. We have one particular person outside my team who spends her entire day on Facebook, and I am concerned that, if she continued using it for debt recovery purposes then the whole local authority could end up be banned from using Facebook.
Could you please offer some advice on whether my team can legally continue to use Facebook, as an intelligence gathering tool only, and only using open sources, and where to find the new changes to legislation regarding Local Authorities and Facebook use.
Thankyou
H

Dear H,
In simple terms, there is nothing wrong with undertaking ‘open source’ enquiries ; this includes accessing FB and other social networking sites. This is not a legislative change – this is as it always has been – this difference is that the Surveillance Commissioners have been reminding everyone about this, so that getting it wrong may end up in an OSC report, in addition to any defence arguments about admissibility of evidence.
There are, however, some issues to be aware of :
(1) Were an officer to communicate with the person or gain access to information by sending a ‘friend request’, this would probably constitute acting as a CHIS ;
(2) Repeated access, beyond the initial search and view of an open source enquiry would probably constitute directed surveillance ;
(3) The use of an officer’s own account is a security risk, as some sites allow users to know who has looked at their pages (profile etc.) and some actively inform users of this. (Even if it is not explicitly communicated to users, it is often implicit in other ways : have you ever wondered how FB decides to ask if you ‘know these people’? They may be friends of friends, people who have viewed your profile four or five times or people who share an ip address with you / your friends / etc..)
I hope this helps!
Kind regards,
Auntie
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Case Law : Guidance on Calculating Unlawful Profit Orders

Poplar HARCA v (1) Begum (2) Rohim – Neutral Citation Number: [2017] EWHC 2040 (QB)
The respondents were granted an assured tenancy of a two-bedroom flat in Poplar ; the rent was met in full by payments of Housing Benefit. During the course of the tenancy, they moved out of the property and sub-let it. They retained the ‘use’ of a single room, padlocked shut, in which they kept children’s belongings in an attempt to avoid detection in case of an inspection by the landlord. Following their sublet, they gained a rental income of £400 a month.

At the original trial, the landlord claimed that the Respondents had parted with possession of the entire property, thereby losing security of tenure (s.15A of the Housing Act 1988). (It also claimed the right to possession under grounds 10, 12, 14 of the HA.) The Respondents denied moving out of the flat, saying that they had left only to care for a sick relative and that they had received no money from the ‘relatives’ who were staying at the address. The Recorder found that the respondents had not parted with possession but made a suspended possession order on the other grounds. He refused to make a UPO, finding that the Respondents had not made enough from any sub-letting to meet the rental payments.

In addition to overturning the suspended possession order and granting possession to the landlord, His Honour Judge Turner, sitting in the High Court, gave the first guidance during an appeal decision in relation to the granting and calculation of an Unlawful Profit Order.

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Section 5 of the Prevention of Social Housing Fraud Act (PoSHFA) says that (in simple terms) the amount of any order should be the income generated unlawfully less any rent actually paid. The first step is to determine the total amount the tenant received as a result of [the sublet] (or the best estimate of that amount). Next you must deduct from that amount the total amount, if any, paid by the tenant as rent to the landlord (including service charges) in relation to [the period during which the property was sublet]. In making his calculations, the landlord argued, the Recorder had accounted for the Housing Benefit as rent paid but not as income received ; this, they said, could not be correct.
The Judge agreed, holding that, the word, ‘total’ means that any income that arises from the ‘the dishonest relinquishment of possession’ should be considered as income received – to do otherwise would defeat the “obvious intention of Parliament to provide a mechanism with which to strip him of his spoils.”

Note to investigators : The judge’s words mean that any income derived from the property should be included in the calculation, so do look for benefits, grants, alterations etc., in compiling your figures.

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View the full case on www.bailii.org/ew/cases/EWHC/QB/2017/2040.html

URGENT – CHANGES TO RIPA

URGENT – CHANGES TO RIPA

With only a couple of weeks to go before the introduction of Judicial supervision of Local Authority RIPA applications, the Court Service have issued guidance as to the required process.

(1)        The first stages are as normal :  you process the application in the same way that you do currently, getting the decision from one of your Authority’s named authorising officers.

(2)        You complete the Court Service form.

(3)        You contact the court for a hearing date and send the form and the authorised application to the Court Officer (this will normally be by email).

(4)        An officer who is authorised to appear for the Authority attends the hearing to confirm the truth of the application and to answer any questions the Magistrate might have.

(5)        A decision is given.

Things you need to do right now :

(1)        Familiarise yourself with the form.

(2)        Make sure that you have contact details for the court (including out-of-hours details for emergency applications).

(3)        Ensure that sufficient investigators have been authorised to appear for the Authority under s.223 of the LGA 1972 to appear in Magistrates’ Court on behalf of the Authority.  (The guidance expects investigators, not lawyers, to appear for these applications.)

(4)        Update your policies now.

The full guidance is here :  http://www.homeoffice.gov.uk/publications/counter-terrorism/ripa-forms/local-authority-ripa-guidance/local-authority-england-wales?view=Binary

The form is here :  http://www.homeoffice.gov.uk/publications/counter-terrorism/ripa-forms/local-authority-ripa-guidance/approval-order-form?view=Binary

If you’d like some training, the ITS course details are here :  http://www.its-training-uk.com/InformationSheets/RIPA2012.pdf

Auntie

P.S. :  Our colleagues in Scotland do not need Judicial approval for surveillance ;  the guidance for Comms Data is here :  http://www.homeoffice.gov.uk/publications/counter-terrorism/ripa-forms/local-authority-ripa-guidance/local-authority-scotland?view=Binary  

Digging into a Bank Account

Dear Auntie,
I have conduct of a social care fraud case and I would like to examine the cared for person’s bank account because I have evidence that her son, who has power of attorney, is abusing his position, in that he is not declaring all his mother’s income for her care needs. I cannot apply for the bank statements as I have no power to do so under SSFA.
However, I have established that there is also an investigation ongoing by another Authority into an allegation of benefit fraud by persons who are renting the former home of the elderly woman above. She is being cited as the landlord of the property but the rental income is not being declared to the authority administering the social fund.
I know that the other Council cannot apply for the elderly person’s bank statements as they are not investigating her, just the tenants in her property.
Have you any suggestions on how I can move forward with this case. Without sight of her bank accounts I believe I will not be able to progress my case.
Thanks,
Frustrated

Penalties

Dear Auntie,
Hope all is well with you, I am currently reviewing some procedures and I just wanted to confirm a point relating to administrative penalties.
Should an Adpen be given to the claimant by a Senior Officer / Management or can an IO give one of these? We have always used a Senior or Management but I am aware in some authorities an IO will administer these. I am aware that the person giving the Adpen should not have been present in the IUC for a fair and transparent process.
Many thanks for your help with this,
Vicky

Entrapment

Dear Auntie,
I am wondering if you can help clear up something relating to entrapment, we seem to be getting conflicting views as to what is and is not permissible in the course of an investigation.
I was always under the impression that if you planted something in the expectation that someone would take it, this was entrapment as you had enticed them to commit the crime (e.g. putting something in a void council house which you expect a housing officer to take.)
However, we have just had a case which we have been working on with the police where they told us to plant a purse and a camera in a building to see if they get stolen by a suspect following a spate of thefts (which they duly were). Why wouldn’t that be seen as entrapment?
Can we use the evidence we got from planting the evidence in a prosecution?
Your confusedly,
Trapped