Benefit Fraud - Court Date

[LJL]

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

[surprise]

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

[LJL]

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...

[surprise]

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.

[LJL]

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..

[surprise]

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

[surprise]

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

[gizmo111]

AFAIK it will make no difference to her CRB check, the type of role she is involved in will be interested in crimes against people rather than fraud. so this crime would not bar her from working with young people. However she may well lose her job if she is on probation because of her fraudaulent activity, and the slur on her character. In fact it is highly likely.

As the previous poster says she may get a custodial sentence also, I knew someone and this was quite some time ago (around 10 years ago) in the same situation with a 3 year old daughter and no family, and she was sentenced to 3 months imprisonment, and the child went into foster care.

I'm sorry we can't give you any better news, but I would definetly get a solicitor. Let us know how she gets on, and if we can help at all.

 

EDIT

She hasn't much time so must get a solicitor asap, and she will need some character references, her tutor would be a good one. Also is there any possibility that she would have been entitled to some benefit?

There was a case last year where the family had claimed over £10k in benefits they weren't entitled to, but should have been having tax credits which would have been around the smae figure over the same period so they were let off with a caution I beleive.

[octron32]

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.

[LJL]

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...

[gizmo111]

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.

 

Yes, but if she can see what she was entitled to and that by claiming the wrong benefit she was only overall receiving the income she was entitled to, she has something to add to her defence.. She needs to go and have a play with the figures over here entitled.co.uk

[LJL]

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.

[mrsfoot]

LJL

 

She will need to mention any court convictions on her CRB form. This will be the case until it is spent. However Gizmo is correct in saying it will not affect her job with youths unless she has some authority over their money. A member of my staff had fraudulent activity (similar reasons) but as she had no authority over any money it was fine. Gizmo is also correct about the case where the person had not claimed the correct benefit. First thing monday she should contact the tax credits and ask for illustrations on what her benefit would have been. They can get the info out to her within 5 days.

 

It is not too late to get a solicitor. First thing Monday she should get herself one. She must get represented or she may fall foul of an over zealous prosecuting solicitor and a judge who likes being in the limelight. If for nothing else at least she will have someone with her who understands the law behind the court case. She has a child which I presume she has sole custody of. Unfortunately she may still get a custodial and therefore she should try to make some arrangements for the responsibility of her child if necessary or social services will be called in and the child will be taken into short term foster care.

 

I am going to read up a little bit on the law surrounding this and if I can be of any help with things I find I will post immediately. Please keep us informed and wish her good luck.

[JonCris]

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.

[WILKINSS208]

Hi

can i ask how she got caught?

when was she caught?

what period of time dates, was she doing this?

did she just get a letter at the start, or did someone call and pick her up for questioning?

thanks

susan

[LJL]

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

[LJL]

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

[WILKINSS208]

ok. you didnt say dates she was claiming fraudelent or when she was found out

[JonCris]

When she visits her solicitor please make sure she takes a copy of my earlier post (14) & remember to find out how much she could have claimed, working, child tax credit etc: & set this amount against the amount she's accused of taking fraudulently

 

It's not impossible that what she was lawfully entitled to could exceed that which she claimed - in which case no offence has been committed - only a mistake in claiming the wrong benefits.

 

At the very least it will reduce the amount it's claimed she defrauded the benefits agency by

 

Assuming she has already been interviewed 'under caution' & she was told "she didn't need a solicitor" (which is a common tactic) then there are grounds for having the charges dropped altogether as this is not true & any admission on her part may not be admissible in court

[LJL]

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

[MCBIRNIE25]

Hi LJL,

hope it worked out ok for your friend.

The Social Security law post was a good posting. Representing people at fraud cases, we have had the totals substantially reduced because the figures have been wrong, and there was some benefit entitlement, even if not 100%. Please keep us updated.

[jasminflower]

be very careful DWP like to read this forums!

[ErikaPNP]

be very careful DWP like to read this forums!

 

Yes - they do. But I think you'll find that DWP employees actually come here to help people, giving up their own free time to offer advice and support, which many people have been very grateful for.

[GEORGE SAINT]

be very careful DWP like to read this forums!

 

 

What exactly does that mean and what are the implications for this case?

[Caught Out]

I got caught for benefit fraud last year. I went for my interview under caution and didnt hear anything for months. Then eventually I got a letter saying that the overpayment of benefits was: (nearly £3000) and i needed to set up a repayment plan. I did this. So after paying back the overpayment at an affordable amount each month i though that was it.

 

Wrong

 

Two months ago i got a court summons. They said that id been summoned to court for the benefit fraud and inside was all the "evidence" including a transcript of the interview under caution.

 

I was devastated...i thought that after id started paying it back it would all be over! in the meantime (while they were taking so long to get themselves sorted) id got myself a good full time job in the financial services industry. Being in that field i was terrified that i would lose my job. so i went to my employer the day after i received the summons and they were great. they paid for a solicitor for me (even though im hoping to claim the fee back through legal aid because of low earnings) and even offered to pay the whole amount back to the benefit office and organise a more convenient payment plan straight from my salary to themselves.

 

On seeing the solicitor, he said that as it was not a huge amount that he would try and get it settled out of court, if i could pay off the balance of the overpayment. unfortunately the benefit office didnt go for this as they must want to waste more time and money taking me to court. However the fact that i have offered to pay the balance (something we are still in the process of sorting before the court date) and that i have already started the repayment process all counts as mitigating factors in court.

 

he has ruled out a custodial sentence and believes that i am looking at a low to medium level community order.

 

Seeing the solicitor was the best thing to do and after speaking with him i instantly felt better about the whole situation. he said that as the case was actually at court then there would be some mark on my criminal record, however he said that it would not show up on every check.

 

I am still awaiting my court date and obviously i am pooing myself ,however at least after speaking to him i have some idea of what is coming. he said that he has never heard of a case where some one is already taking steps to repay the balance being taken to court, he just thinks that, as someone said previously, they like to make an example of people.

 

I think your friend should not worry and just take whats coming. Hopefully someone will understand that yeah we've done something wrong but we've said sorry and we wont do it again.

 

Im just lucky that my employers are so kind and helpful. I couldnt have got through this if they werent!