Hi - query on likelihood of prosecution. Only vague details but trying to prepare before visiting on Monday.
Couple (in 30s) both on IB with IS top-up (getting for children in claim). I think IB is due to depression and anxiety. Over last two years their parents have died - and they haven't declared initial £10,000 inheritance and then further £30,000. They have been very distressed (one parent committed suicide) and they have told me they did not think they had to declare because money spent on a holiday caravan (£25,000) so they were not over the £16,000 limit. Also a pension not declared. GP has written to IS stating Mrs Claimant not coping at all with affairs and family under great stress. On the phone their explanation seems genuine and non-declaration does not appear intentional. The overpayment has been discovered because a neighbour reported them.
Anyway, they were interviewed under caution and the solicitor they took advised them that they were unlikely to get prosecuted if under £2,000 o/p. They now have the figures and it's over £2,000 (and then HB/CTB knock-on to add) so feel that prosecution is likely. I haven't heard this as a broad rule of thumb. I have read cpag (p1074) and understand the amount of benefit involved is taken into account but not aware how much weight the amount is likely to hold.
My role by the way is to advise re whether overpayment amount appears correct and current benefit entitlement. If ongoing investigation I expect to advise them to keep in touch with solicitor!
Thanks Liz

Hi Liz
My experience of fraud proceedure is that :
They say they will now prosecute over as little as £50. 'Intent' is the trigger.
They will inform clients quite quickly after the IUC if they are not going to prosecute.
If the client asks for the transcript of the IUC they are likely to be sent it if the decision to prosecute is imminent.
When the investigation is finished (it can take ages) and the prosecution letter received by client, you will be able to talk to the DWP fraud contact for further guidance on proceedure.

Good luck
Nicolette

Thanks Nicolette - this is really helpful, although not reassuring for this couple unfortunately. Liz

I forgot to say that by now your clients should be using a solicitor!
N

Their sanction policy still states £2K but a recent client told me when he was interviewed he was told they now consider £3K to be the benchmark but again it's not just the amount they look at. As has been said earlier, intent is the main consideration

Over the years I've had clients prosecuted for less then £2K and some not prosecuted when it's been over £10K so you never can tell.

There's nothing stopping you giving the investigator a ring and asking them how they'll likely be looking at it.

Well well the wondeful world of overpayments, from our experience it really is a lottery !

We have a case at the moment where we can identify clear eligibilty for certain rates of both components for DLA. But an unreported change in circumstance (change of worplace) which is in fact not a change under DLA regs, has led to a 2K OP. Despite our evidence and one adjourned Tribunal, case is going to court for just under a 2k OP. Regardless of what we have said.

We therefore approahed DWP for their official view on this, please see the following:


Reponses to RNID questions;
1. In order to prevent any undue delays in the bringing of criminal proceedings, procedures for taking appropriate cases to court run alongside any challenges the customer makes against the benefit decision via the Tribunal process. In cases where the benefit decision has been arrived at as a result of work carried out by the Fraud Investigation Service every effort is made to deal with the challenge to the benefit decision (either a reconsideration or an appeal) before the court proceedings.
2. Appropriate and reasonable adjustments should be made available to any customers to enable a full and accurate interview under caution to take place. If in any individual cases it is felt the customer was disadvantaged by the absence of such facilities these should be taken up an a case-by-case basis with the investigating officer.
3. The decision to prosecute is taken very seriously and is considered in the most deserving of cases, but only where there is sufficient evidence and where it is felt it in the public interest to do. Cases are scrutinised at various stages, by the investigating officer, the line manager and by prosecution lawyers.

Wasn't there a Court of Appeal decision a few years ago which said that you cannot be convicted of an offence of benefit fraud (including attempted beenfit fraud) for failing to report a COC if the change was one which was not in fact material to entitlement? As I recall the case involved someone who deliberately failed to report a change of circumstances in order to preserve entitelment to benefits, when in fact irrespective of that change there was not entitlement anyway, so it didn't make any difference.
This is what is known in law as an "impossible attempt", like breaking into an empty building with intention to steal contents can't be burglary if there is nothing in there to steal!
Thus if there was no dishonest intention AND it wouldn't have made any difference to the entitlement it certainly shouldn't be fraud.
No doubt Shawn will know the case I mean....

think you're right, ariadne...

ariadne: I suspect the cases you have in mind are "Passmore" (a provision under s.111A SSAA 1992) and "King" (s.112). The more recently heard "Shanahan" is also potentially relevant.

However, the DWP and LAs appear to be increasingly reliant on other provisions to pursue "fraud" related prosecutions, such provisions not being reliant on benefit being affected.

There is also something even more important than involving a solicitor. It is imperative that a defendant has the input of a witness that is expert in Social Security law. For transparency, I occasionally assist such a witness, but the purpose of this post is not to indirectly tout for business.

The importance of such input cannot be underestimated. In more than 80% of the cases I have been involved with, the alleged overpayment calculation has been plain wrong - sometimes by thousands. Further, the DWP and LAs regularly overlook underlying entitlement, diminishing capital in notional cap cases, and diminution of cap in relation to the overpayment. Further, in the event of conviction, sentencing should be based on the net loss to public funds - this may be substantially different from the actual overpayment. The net loss could be less if, for example, it transpires the clmt would have been entitled to another benefit that wasn't actually claimed. Doesn't reduce the actual overpayment, but it does reduce the net loss.

On top of the above, it is far from uncommon in my experience for there to have been substantive procedural / technical defects in the purported decision making process.

Very few solicitors dealing in criminal law will have sufficient knowledge to be aware of the above, let alone the potential relevance.

there's also laku ... links to all three ...

• London Borough of Croydon v Shanahan (February 2010)
  
  
• Laku, R v (2008) EWCA Crim 1745 (August 2008)
  
  
• Passmore, R. v (2007) EWCA Crim 2053 (18 June 2007)

"Very few solicitors dealing in criminal law will have sufficient knowledge to be aware of the above, let alone the potential relevance"

hence my other thread "tribunals or mags" in decisions & appeals....

www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=3381&mode=full

"Cases are scrutinised at various stages, by the investigating officer, the line manager and by prosecution lawyers".

Glad to hear it, but then why were inflated and sometimes completely fictitious overpayments routinely included in the 90 prosecutions I have examined in depth?

"In cases where the benefit decision has been arrived at as a result of work carried out by the Fraud Investigation Service every effort is made to deal with the challenge to the benefit decision (either a reconsideration or an appeal) before the court proceedings."

Then why do I have in front of me a letter from DWP solicitors saying the complete opposite?