Thread: Benefit Fraud - Court Date

Dear All,

My best friends girlfriend is about to be convicted of Benefit Fraud - she I believe has been more stupid than fraudelant, however I do not agree with her actions.

In all fairness to her, she was a single teenage mum with an abusive partner, alcoholic parents living in a very rough area (known gun and red light district). She managed to put herself through university, gain a degree and has just landed a full time job with a Council working with Youths.

She basically did not inform the benefits agency when a charity she was working part time for increased her hours and now they are taking her to court for £24,000. Fair enough as she was claiming what she was not entitled too at the end of the day.

However I was wondering whether anyone would know whether she shall lose her job (I think that she is still under probation).

Also I was wondering whether it is worth her getting a solicitor to go to court with (even though she is guilty) and I wanted to know whether a benefit debt goes on a credit report, or if you can make the benefits agency an offer e.g. will they accept £12,000?

Any advice would be really appreciated!!! Court date 12th March 08

LJL

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My daughter is an HB Contractor and she will try and help with this but she needs to know what benefits are involved and who is taking her to court the local authority or the benefits agency or is it a joint prosecution

Suprise,

Many thanks for taking the time to reply.

I believe that it is Council Tax and Housing Benefit which she is being prosceuted for (joint).

Thanks Again - it is appreciated...

Hi
Unfortunately, I think your friend is going to be in for a bumpy ride. Several questions need clarifying.
My daughter said that £24,000 is a serious amount of overpayment so it was obviously for a lengthy period probably 2/3 years. Ususally you are cautioned, did she admit the offence and was she offered a Solicitor, apparently this is normal procedure.
Is it just the LA Authority that are involved or are the Benefits Agency involved aswell.
If she is worried about losing her job is it because she works for the LA.
They will not accept an offer as they like to make examples of people or are defrauding the system and for this amount they would probably seek maximum amount of publicity. Also, there is likely to be a heft fine on top of repaying the £24,000 back. As she has children it may be worth asking the Judge to put a ban on publicity if possible.

When you have more information I will try and help you further, although at this stage, I don't think what I've said will help.

With regard to CRA's we are not sure on this one, CAB may be able to advise you on that point.

Hi There,

Yes it was over about 3 years I believe.

She was interviewed under caution and effectively admitted she was in the wrong (ultimatley she was). She more than likely declined a Solicitor as I dont think she realised the gravitas of the situation and in fact was too scared to open letters, it is only when my friend had a knock on the door from the Benefits agency did he realise what was going on.

She does have a young son - so is it worth asking a Solicitor to try and prevent publicity?

Yes she works for an LA, so is worried about her job - expecially as she works with children and is CRB checked.

I will try and get some more details - the pair of them are worried sick.

Is a custodial sentance normal procedure does your daughter know?

She is on about £20,000 per year in her current role, so I dont think she can pay £24,000 back unless it is over some time..

This is my daughter's response, not very encouraging.
she could get a custodial a sentence children or no children - as the benefits agency are getting tough and do make examples of people / more likley to be a suspended sentence - you must get a solicitor - maybe its too late im not sure - he will be able to tell her about CRB - the courts will tell you about repayment of the overpayment

Sorry, meant to say, good luck with this, keep us updated on how it turns out.

I have my crb in front of me it contains applicant personal details employment details and then 4 boxes:

box 1 police records of convictions, cautions, reprimands and final warnings.
box 2 information from the list held under section 142 of the education act 2002
box 3 protection of children act list information
box 4 protection of vulnerable adults list information

mine all say none recorded so for something that went to court i would assume it would say something in box 1.

Thanks for all this advice guys.

Gizmo - yes I believe she would have been entitled to some benefits as she was on a very low variable income, but I am not sure that she has not left it too late to do something about it.

Great advice about the references.

Thanks Octron32 and Suprise again also.

I hope that she comes out okay at the end of all of this...

Thanks Gizmo - my friend is coming over tonight to talk about it, I'll go through it with him then to see what is what.

LJL I hope the following is not too late & of some help.

It's an article that has been written by an expert witness in the field of benefit fraud

Criminal law practitioners who know little of social security law are routinely acting for people charged with social security fraud offences.
My experience as an expert witness in benefit fraud prosecutions, and previously as a frontline adviser, has increasingly led me to feel that injustices are occurring because of the lack of independent social security law expertise in many criminal cases. This article will show how there are substantial risks that some defendants are even being prosecuted when they are fully entitled to benefits and courts are sentencing using inflated fraud figures. The tightening of legal aid spending and consequent specialisation are partly responsible. For example, the Legal Services Commission's (LSC) welfare benefits contract prohibits payment for attending interviews under caution except by criminal contract holders.
There is a common perception that benefit fraud is widespread and costly. Such attitudes can and do influence judicial attitudes and result in the questionable practice of Department for Work and Pensions (DWP) fraud investigators being set prosecution targets as part of their performance-related pay.
Seek expert help early on
The two most common benefit fraud offences are in sections lllAand 112 of the Social Security Administration Act 1992 (SSAA). Both involve knowingly or deliberately failing to notify changes of circumstances or misrepresenting circumstances in connection with benefit claims. One must therefore understand the rules of entitlement for benefits in order to know whether the failure or misrepresentation actually affects benefit entitlement. In other words, there are clear links between civil and criminal law - the former drives the latter. \nRv Passmore [2007] EWCA Crim 2053, Passmore was convicted of offences under section 111A (1)A because he had dishonestly failed to inform the benefit authorities that he had formed a limited company. The court held that no offence was committed unless the failure to notify actually affected entitlement and, as he had not drawn any income from the company, there was no effect on benefit entitlement and the convictions were quashed. The court also held that the benefit fraud legislation must be seen in the 'wider statutory context' of social security law.
Practitioners never cease to be amazed by just how weak benefits authorities' assertions of non-entitlement or of amounts overpaid can be when subjected to knowledgeable analysis.
Investigations
Clients may seek help when they have been asked to attend an interview under caution. Here public funding can be a problem, but the normal considerations about seeking sufficient advance disclosure and advising on silence apply. The DWP's internal Fraud Investigator's Manual (FIM) emphasises the need to obtain admissions by the client during interviews under caution and how to obtain these - so legal advice is vital. There is strong anecdotal evidence that inadequate disclosure occurs and for DWP staff to tell clients that they 'don't need a solicitor'. The latter may have implications for admissibility under the Police and Criminal Evidence Act and the former may be grounds for silence. Expert social security law advice is needed to understand what should be disclosed, to check entitlement and to help assess mens rea.
Practitioners may wish to note the Law Society Criminal Practitioner's Newsletter of January 2006 on advising on silence at police stations, which indicates that in complex cases it may be appropriate to maintain silence and when a prepared statement is appropriate.
An investigation is often accompanied by suspension of benefit - this must not be used to compel co-operation and the matter must be put before a benefit decision-maker to decide entitlement one way or another within a reasonable timescale (excessive delay may be judicially reviewable). Suspension is also discretionary for most benefits.
Benefit appeals
In any prosecution it is important to appeal against the decision to end benefit and any decision on benefit overpayment. Time and again benefit experts find that solicitors fail to do this or fail to in accordance with the regulations. Not only does this severely disadvantage the client, but it may also be negligent.
It is particularly important to ensure that the appeal is submitted in the correct format and within the statutory time limits - a maximum of one month after the date of decision. After one month, it is necessary to explain the delay and why the appeal has merits such as a reasonable prospect of success. There is an absolute limit of 13 months from date of decision. A referral to an expert should also be made to undertake representation at the appeal and to consider the possibility of LSC exceptional public funding.
Not only is the benefit appellate process the proper adjudicator of entitlement in disputes, but a successful appeal will usually result in any prosecution being discontinued. One must therefore wonder why the FIM states that DWP will seek to postpone any appeal hearing when a prosecution is being taken - there is no legal authority for this and it risks the courts acting on questionable evidence of benefit entitlement.
Inflated figures
The amount of overpaid benefit is crucial to sentencing and the DWP's strategy to publicise significant fraud convictions. However, benefit overpayments are frequently incorrect - 67ao of them, according to the latest data published by the DWP. Thus there is a huge risk of courts being misled unless someone checks the overpayment. Even pressing for a detailed Breakdown of how an overpayment has been calculated may cause the benefit authorities to spot errors.
A common way for people who work while claiming to be detected is by data-matching between DWP and HM Revenue & Customs computers. Under section 71 of the SSAA, when the material fact of employment is revealed to the DWP, any consequent overpayment is not recoverable and should not be included in the figure presented to the court (see also the FIM). However, it may be weeks, even months before the evidence is put before a benefit decision-maker and the overpayment is therefore inflated by official error.
Another inflationary measure is to fail to offset underlying entitlement to benefit - for example, the client may have been overpaid but still be entitled to some benefit. This is a specific statutory requirement for income support and housing benefit.
Then there is notional entitlement offset - commonly when someone has been working while claiming or has not declared their partner. For example, someone may lose entitlement to income support if they work for 16 or more hours a week, but had they declared their position, they may have been entitled to tax credits. Because of recent welfare reforms, claimants are often better off doing this than working while claiming. The amounts of notional tax credits and other benefits payable while in work are very relevant for sentence because they show the true net loss to the public purse.
Similarly, underclaiming of other benefits (for example, because of disability) may be mitigation as well as reduce an overpayment.
DWP practice seems to be to not mention these points to the court or the defence. This is not helpful and can mislead the sentencer (who may well not be aware of the concept of not';-; in-work benefits and tax credits). Expert input is essential.
Given the moral panic about benefit fraud, criminal and social security law practitioners need to improve joint working in the interests of justice. History teaches us that unless the law rises above moral panic, the seeds of injustice come to flower.

Guys,

Thank you all for this amazing advice!

My friends girlfriend has plucked up the courage to go and see a solicitor, she has contacted the Benefits agency and Local Authority to start a repayment plan (of course she shall still have to go to court) and generally is feeling a lot happier about the situation.

She is still very upset at herself (in fact feels disgusted) and feels that she has let herself, son and partner down.

Wilkins - I think she was caught when she finished work at the Charity (not sure) but I know that she was asked to go in for an interview where she admitted she was wrong (she was) and from there she was too scared to open letters etc (we've all been there) then they agency knocked on my friends door and handed her a court summons in person.

Her solicitor reckons that she might get a suspended sentance and/or community service, but nether the less my friend has promised to take care of her son if she does get custodial.

My friend can not believe the amount of people on this site who are genuinly caring and happy to give over such good advice.

Thank you all again and I'll keep you posted

Sorry guys, apparently she has been advised that her benefits entitlement (what she was actually due, not fraudelent) can only be back dated a year - is this right? I dont think that she was claiming Tax Credits etc

Hi Wilkins - I'll have to find out and let you know ASAP