Wrong Prosecution for Benefit Fraud - Advice Please

[Heeeelp!]

the amount of working tax credit I received was affected because CA was being paid, surely if i was not receiving CA I would have received a higher amount for WTC...? Therefore roughly work out to be what I was paid anyway.

[jabba jones]

the amount of working tax credit I received was affected because CA was being paid, surely if i was not receiving CA I would have received a higher amount for WTC...? Therefore roughly work out to be what I was paid anyway.

 

No loss to public funds is something your solicitor can argue in court. It is something that often crops up & is taken into account when sentencing. It won't change the criminal record though.

[jadeybags]

Went on the benefit calculator frequently posted on here & I would get 20 pounds a week less tax credits if I claimed CA. It's an income isn't it.

[Life-Goes-On]

I would have thought the fact you informed one Government department about CA together with your income would help your defence about it being just a mistake not fraud.

[jadeybags]

I would have thought the fact you informed one Government department about CA together with your income would help your defence about it being just a mistake not fraud.

 

I'm not totallly sure they all actually talk now tbh, different benefit departments I mean, even when a new application goes in. Until it gets to the investigation stage of course, then the friendship between them seems to kick in like old home week. Would make sense they all checked in the initial stages, but amazingly I dont think they do to be honest.

[Life-Goes-On]

I can see why benefit cases can be complex.

Would a person trying to defraud one Government department tell the another Government exactly what they are doing. (Claiming CA while earning over the amount allowed)

 

Or are department totally unlinked so the fact you are getting less from one doesn't excuse you from getting more from another.

 

Also ignorance is no excuse for breaking the law.

By sending Helllp letters, Hellp should have known she was committing fraud the fact Hellp didn't read them might not be considered an excuse.

 

All the above should be considered my ramblings and NOT what will/ should happen.

[Heeeelp!]

I would have thought the fact you informed one Government department about CA together with your income would help your defence about it being just a mistake not fraud.

 

Yes, that's what I kept saying to my interviewer. Why would I let HMRC know about CA if I was trying to commit fraud? I also work for a London Borough, surely if I wanted to work and claim CA I would have gone for jobs that pay cash? but I guess I need a point of law to win;-(

I'm so scared, I can't sleep...

[grrrrrr]

I will do my very best, but I need to caveat everything with the fact that I am not a solicitor and nothing I say should be used as a substitute for professional legal advice ...

 

Firstly, you need to challenge the amount of overpayment they are claiming. There is every possibility that they have calculated this incorrectly. You should also check your original application, as normally you can't get CA if you are a student (unless very part time). I will check out the regs for you. You also say you got 3 letters, and I only remember getting them once a year, so does this mean 3 years of overpayment? If so that's a big overpayment to try to get down below £2,000.

 

If you had childcare charges because you were working, they can be deducted from your income. If you incurred any other work-related costs they can also be deducted.

 

If you were paid term time and not holidays you can average out your earnings 'reasonably' which may bring your income down further.

 

Basically, go through the regs and try to find eligible expenditure that you can deduct from your earnings to see if you can get below the threshold for any of the period they are saying you have been overpaid. If you can reduce the overpayment below £2k you may well be able to argue that it is no longer in the public interest to prosecute you as the penalty would be minimal.

 

If your WTC was reduced because of your CA then you can include this as 'notional entitlement'. It doesn't actually reduce your overpayment (the amount you have to pay back) but it DOES reduce the amount they will consider when making the decision to prosecute, and not just your sentence. - Net loss to public funds is a required consideration for charging decisions.

 

Under 112(a) you are not being accused of dishonesty, which is a good thing on the one hand as it may not have the devastating effect on employment you may think (although you should check, ask at your college).

 

If you don't have the means to get a solicitor (or can't find one you want to trust your cash to, like us!) then you should stay in contact with the prosecutor. Write or email or call. Lots. Bombard them with reasonable arguments and present yourself well and as a respectable member of society trying to do the right thing by your family.

 

We explained our personal situation, and fought the level of overpayment ... they have gone oddly quiet since they starting having another look at the overpayment level, neither asking for more money back nor writing to confirm they got it wrong!

 

You should also check, check and recheck that you were claiming everything you were entitled to during that period. Any notional entitlement you may have had but not claimed you can also throw at them.

 

I made a spreadsheet, and entered everything we earned, everything we received in tax credits & benefits, everything deductible we paid out (child care, unclaimed mileage for work etc.) and everything we were entitled to but didn't claim. We commented on every set of figures that they were provisional as we had not completed the calculations, but it did in the end work out. Check EVERYTHING! Seriously, I mean everything.

 

I wrote may be 6 or 7 letters / emails and made a couple of very long phone calls to the prosecutor before they changed tack, so don't lose heart.

 

You need to emphasise the fact that you informed HMRC and that you were working for local government, after all, Jabba is right, to proceed they need to have a decent chance of success. *BUT* they are only going on what you said interview, and they are most certainly focussing on the fact that you admitted you didn't notify NOT that you had 'reasonable excuse' not to notify.

 

It is absolutely the most stressful thing, but you will need your thinking cap firmly on in order to try and put a good case.

 

We highlighted all the other proof we had that we were decent honest people (that we had notified HMRC about changes and stuff) to show that the CA issue was a total anomaly. This may have helped us more than it could help you, though, as you are not being charged with dishonesty, just failing to notify without reasonable excuse.

 

You may want to track down the nurse who recommended you apply. You may not want to go and ask if she would be a witness yet, but having her details to hand might help.

 

Don't forget, all the requisition is is to answer charges, they can still drop the charges after that.

 

However, again being no expert, not notifying without reasonable excuse remains an offence. So, my amateur opinion would be to focus on:

 

1) Trying to see if the overpayment is wrong and can be reduced to below the prosecution threshold by deducting permitted expenses

2) Demonstrating that you have a "reasonable excuse"

 

In my humble (and again amateur) opinion, being a full time working, part-time studying mother of two, including a disabled child, is a "reasonable excuse" to not fully read some of the mountain of paper that comes through the door. It is always possible that a jury would see that too, but taking legal advice and doing A LOT of web searches for case law on what the definition of 'a reasonable excuse' is.

 

If you can't reduce the overpayment below £2,000 through looking at deductions and notional entitlement, and you are normally quite an efficient person, then I would very strongly suggest you seek professional advice. You don't have to pay a solicitor for the whole case to get advice at the beginning.

 

However, I would add one word of warning on the reviewing overpayment front: if your son only gets middle rate DLA that means he is judged as needing some help either during the day or during the night (not normally both). If you were working full time and studying part time, you need to consider the possibility that you may not have been caring for him for the 35 hours a week (over and above normal parenting) in order to qualify for CA during that period, in which case if they review the award this may come up, and then it won't matter how much you can reduce your earnings to to get below the threshold if there was no eligibility. However, there is a bit of case law that might help you here, and (so long as you declared the studying on your original application) then if they awarded CA in error to you in the first place then no change of circumstances is relevant - there is a slim chance it might be worth approaching it from this perspective. Your original claim form should be in your advance evidence.

R v Mote (Ashley) EWCA Crim 3131

See also Dursun Zorlu case [2009] EWHC Crim 589.

both may be relevant.

 

It would be wiggling out of a loop hole if awarding you ANY CA was an error on their part! Worth a look at original entitlement, though.

 

The other option is to really seek to find out if a conviction really would harm your career. It may not as it is not a conviction for dishonesty (S111 is dishonest, S112 is not) and it does not involve harming or exploiting children or vulnerable people. If a conviction would not harm your employment, then you may want to consider pleading guilty and being done with it. Crap situation, I know, but you need all the information in order to make an informed situation. The stress of trying to make it all go away is monumental, but if you know the impact a guilty plea will actually have you may feel calmer - or at least more in control of whatever happens at court if it gets that far.

 

One big difference between your case and ours is that we did inform them, and we could clearly show that we were expecting WTC of almost exactly the same level being paid during that period AND we could reduce earnings to below the threshold for a few months of the 'overpayment', as well as a host of other errors in their investigation.

 

So, in summary of all of this waffling:

 

1. Check the overpayment amount is right. It probably isn't.

2. Find out if a conviction / guilty plea is really the end of the world. It possibly isn't.

3. Find out the definition of a 'reasonable excuse'. Google is your friend.

4. Check out if you were really eligible for CA in the first place! - there have been changes in the studying limits, so it does depend on when you claimed & how many hours a week you were studying for. If you were studying (lectures, tutorials, personal study, teaching placement) for more than 21 hours a week and told them on your original application then you were never entitled to CA and the overpayment is 'error' not 'fraud'

 

Sorry I don't have a magic wand. I really, truly wish I did. I know how much we needed one when we were going through it.

 

I'm here to bounce ideas off, be supportive and generally try to help the best I can as you go through it all.

 

The best advice I can give to unrepresented individuals is to stay in contact with the prosecutor. After a couple of letters showing that you are a decent human being, they can become really quite reasonable!

 

Good luck!

 

x

[grrrrrr]

Oh, and for another wee loop hole, do check how long it has been since they got 'sufficient evidence' and / or stopped your benefit.

 

Chances are your IUC is 'sufficient evidence' ("No I didn't tell you" - handily glossing over the "because I didn't know I needed to").

 

They have 3 months from gathering "sufficient evidence" / 1 year from last payment of benefit to prosecute under s112A or they are out of time (and unlikely to go for Fraud Act as this is dishonesty, and if they thought there was evidence for dishonesty they would be going under S111A).

 

[Heeeelp!]

Hi Grrr,

thank you for getting back to me, first of all I received 1 award letter to say they have granted the award, then I received 2 update letters. I was not studying at the time I applied. Now I work 4 days a week and attend university 1 day a week. the overpayment was between october 2007-february 2010.

I will do my sums to as you mentioned. I do get paid term time only. I am hoping to leave dealing with the prosecution with my solicitor, do you think this is a good idea?

 

Thanks again

[Heeeelp!]

Oh, and for another wee loop hole, do check how long it has been since they got 'sufficient evidence' and / or stopped your benefit.

 

Chances are your IUC is 'sufficient evidence' ("No I didn't tell you" - handily glossing over the "because I didn't know I needed to").

 

They have 3 months from gathering "sufficient evidence" / 1 year from last payment of benefit to prosecute under s112A or they are out of time (and unlikely to go for Fraud Act as this is dishonesty, and if they thought there was evidence for dishonesty they would be going under S111A).

 

 

They interviewed me on February 2010, sent requisition for court on 22 February 2011. Does that mean they are out of time?

 

Thank

[grrrrrr]

They could well be out of time, it is worth checking - and reminding them.

 

You do not have to use your solicitor for everything. Whether you choose to only go through your solicitor or not is your choice. It would really depend on how much you trusted them to act swiftly and as forcefully as you need.

 

If I have a good solicitor with plenty of experience in this kind of case, I may have left everything to them.

 

You could try just calling the prosecutor to highlight the dates. If they have another piece of 'evidence' gathered in the last 3 months, they might not be out of time. I did notice in our evidence pack that they went back to my husband's employer a year after the first investigation started to get a statement confirming his work start date, even though they already had this from the pay slips they requested from the employer a year earlier, and the statement from the person conducting the IUC was also dated over a year after the interview. I really don't know, but it smelled fishy to me, and looked as though they deliberately delayed securing this evidence in case they were going for an offence with a time limit. A good solicitor may well be able to argue against this dating practice.

 

You also need to check exactly the date they paid you up to, and whether they had information about your working earlier than when they stopped paying you. If they continue paying you after they have evidence that you are not entitled then this payment is 'error' and neither repayable nor should it be part of the offence for dating purposes.

 

However, before you get your hopes up, I would suggest that the almost exactly 12 months timescale sounds like they rushed it through to get it in time - otherwise it would be a bloody enormous coincidence!

 

It's another string to your bow, anyway. No definitive, but it can't hurt.

 

27 months of overpayment and you are going to struggle to get this down to below £2,000

 

- I'm guessing the overpayment is in the order of £6,000, but it may still be worth a try.

 

Oh, and the sign of a good solicitor who knows how this kind of case works will already be looking at making sure the overpayment calculation is correct. Alarm bells should be ringing if you are paying someone to defend you and they haven't even mentioned the possibility that the overpayment is wrong.

 

Google David Winch - he's a forensic accountant who works as an expert witness. If you think you may be able to reduce the overpayment enough to make a difference to the charging decision, he's a good person to have lined up to act as expert witness to prove this if needed.

 

Good luck

x

[Heeeelp!]

Hi grrr,

you advice has brought me some relief, relief I haven't felt in a long time..but don't worry I'm not going to get overly excited yet! I have trawled through my paper work and so far it shows:

 

1) The last date on the evidence form is 9/11/10. The requisition is for 22/02/11 so in terms of evidence, it is just over three months...

 

2) The date of the last payment is 22nd Feb 2010 so they have made it within the year. However my initial interview took place on 18/02/10 when I clearly stated that I was not entitled to CA. should they not have stopped the February payment, I'm guessing they will argue that by then it was too late to stop the February payment:|

 

I've found my tax credit letters for the time period mentioned and it states that I declared taxable social security benefits. Will HMRC help me work out what my entitlment would have been if I was not receiving CA? If so I will call them tomorrow.

 

Can you also let me know where you found out about the 'loop holes' about the time limits?

Thank you very much for your help

 

p,s. I'm using Bains Cohan solicitors. Yes alarm bells are ringing, I've got an appointment with them tomorrow, I'll see what they have to say.

[grrrrrr]

The time limits are contained within the actual text of the Social Security Administration Act 1998 in S112(a).

 

Google is your friend

 

If it were me, I would call the prosecutor first thing tomorrow and follow up with an email, pointing out that on 18th Feb 2010 you clearly stated that since you had been made aware of the regulations you acknowledged that you were not entitled to CA, and therefore the payment on 22nd Feb 2010 should not have been made. CA is *normally* paid weekly in advance or 4 weekly in arrears. If it was paid 4 weekly in arrears then your last payment before 22nd Feb would have taken you up to 25th Jan.

 

It is massively unlikely that HMRC will calculate how much your notional entitlement is. You will have to do that yourself, and if it does go to court get an expert witness to present it. Distract yourself from the stress by immersing yourself in learning the benefits calculation system!

 

Sounds like you need to press the dates one with both the prosecutor and your solicitor.

 

Prosecutors are required to answer your questions and be helpful regarding the process, and I found them willing to talk details. If you are not confident with the legalese of the case, you can play dumb and just call and say "I looked at the wording of the offence you are charging me with and it gives these time limits that the evidence seems to say are out of time, can you please explain how you have worked out that this case is not time limited?" or something.

 

The very worst they can do is explain why they are not out of time and either give up on that tack or check, check and recheck what they say.

 

The prosecutors are currently under huge stress with massive caseloads and lots of pressure to provide the Daily Mail with headlines. I don't know if this means they are more or less likely to quit early, but anything is worth a try.

 

For us, avoiding having to answer charges in court was key because of our employment situations. An accusation of fraud, regardless of outcome, would have been massively damaging. So we were on them from the start up against a tight deadline, and we never let up. I called at least once a week, and got very irritated that they wouldn't reply to anything by email, only by letter as that delayed everything.

 

Fingers and toes crossed you can wiggle out of the nightmare with the dates, as that is nice and simple.

x

[Heeeelp!]

thx grrrr! Will contact prosecution tomorrow:-)

[Heeeelp!]

met with my solicitor today, he seems to think that I cannot rely on over payments because I was not entitled to any other DWP benefits at the time. They will not accept an under payment in tax credit to balance out over payment in CA. But this is exactly what you did? Sorry to keep bothering you...

The solicitor is adamant that the strongest point to argue is that my charge reads: 'she knowingly with held information' and they will argue that my disclosure of information regarding to HMRC shows I was not acting dishonestly...I just need a second opinion from anybody who has experience.

 

Thank u

[Heeeelp!]

sorry notifying HMRC shows I did not want to with hold information from them, I did this unknowingly...

[K6969]

Hi "Heeeelp"

 

I'm new to the forum and having similar problems as you have had with CA. I've been working and it looks like I've gone over the threshold about 2 or 3 times each year in the last couple of years without realising (my pay is very complicated so its "unknowingly" rather than dishonestly). I just wondered if there were any updates to your case or if there is any way we can be helpful to each other and pool information/ updates/ anything that might be helpful to us both, as we both seem to be in the same boat?

 

Thanks for your help. Look forward to any replies/ updates.

[Heeeelp!]

Hello K6969,

I'm afraid I don't have any good news. I have been notified by my solicitor to plead guilty. I received the letters therefore, I had the obligation upon me to read them. I'm sorry this does not help you. The fact that I notified HMRC does not show that what I did was done mistakenly...

 

I was wondering if anyone knows of of the chances of a conditional discharge at the magistrates court for this offence, if I plead guilty?

 

Thank you for your help

[Life-Goes-On]

Found this.

http://www.hertfordshiremercury.co.uk/Hertfordshire/Benefit-cheat-caught-out-in-Aston.htm

[K6969]

Hi "Heeeelp"

 

I'm sorry that's how its turned out for you. It looks like I'll be in exactly the same boat then, just a few steps behind you in the process.

 

From what I've read, I'd be expecting a fine and community payback or even a curfew/electronic tagging to restrict your liberty, but pleading guilty apparently reduces sentencing by 1/3rd, as you're not "wasting the courts time" but then it's pleading guilty to something you feel was a mistake rather than being premeditated and calculated, and you end up with a criminal record.

 

I'm no expert by any means. In fact, I'm very new to this but I feel I'm rapidly learning "after the fact"

[Life-Goes-On]

Post removed as I gave wrong info, Sorry.

Edited April 5, 2011 by Life-Goes-On

[jadeybags]

If you get an conditional discharge, it isn't classed as a conviction unless you commit a further offence in the time-frame of the CD. (So no criminal record)

 

Is that right? That's interesting that.

[Life-Goes-On]

Is that right? That's interesting that.

 

Sorry Jadey, on reading further I was I was wrong .

 

I was getting mixed up with a sentence and the result of the charge.

 

.

[Heeeelp!]

I thought a conditional discharge meant there would be no conviction either unless you committed another crime during the time of CD?