A person may be investigated for benefit fraud (Common law, Fraud Act 2006, s.1, Social Security Administration Act 1992, s.111A, Social Security Administration Act 1992, s.112, Tax Credits Act 2002, s.35, Theft Act 1968, s.17) if the office which pays the benefit suspects that wrong or misleading information has been deliberately given in order to claim a benefit for which a person is not entitled.
It is important to note that although the offence is referred to in the singular, ‘benefit fraud’ is actually an umbrella term used to describe several different offences, as the legislation information above indicates. For ease of reference, this generic term will be used throughout, but more specific sentencing information will be referenced later. Regardless of the specifics, you should be made aware that benefit fraud is serious and you should consult specialist benefit fraud solicitors like Forrest Williams at the earliest opportunity.
The Department for Work and Pensions (DWP) is responsible for investigating suspected fraud, via officers in the Fraud Investigation Service which is based in local Job Centre offices. Sometimes an investigation can be carried out by the local authority.
If the investigating officers find sufficient evidence to suggest a fraud may have been committed, a prosecution could take place along with an order to pay back any benefit which has been overpaid.
What constitutes benefit fraud?
Benefit fraud is a criminal offence. It is not the same as an over payment of benefit, which can happen for different reasons, i.e. an error made by the benefit office, or ignorance on the part of the claimant regarding information given when making a claim.
Benefit fraud includes:
- Deliberately withholding information regarding accurate financial circumstances when a claim for benefit was made, i.e. working while claiming Jobseeker’s Allowance, or not declaring all savings knowing that to do so would affect entitlement to benefit
- Deliberately failing to declare true household circumstances to the benefit office, i.e. co-habiting but claiming benefits as a lone parent
- Using false documents/a false identity to claim benefits, i.e. using a false birth certificate in order to claim Child Benefit
- Deliberately not informing the benefit office about a change of circumstances because there was the knowledge it would affect benefit entitlement.
Who can be prosecuted for benefit fraud?
It is not only the claimant who can be prosecuted for benefit fraud. An employer, partner or landlord could also be prosecuted for giving information or making a statement to a benefit office which they know to be incorrect, i.e. a landlord who made a false claim regarding rent payments.
Is there a time limit in which a benefit fraud investigation, or prosecution, can take place?
There is no time limit within which the benefit office can investigate fraud, even if evidence becomes available many years after the alleged fraud took place. Similarly, there is no time limit for recovering a benefit overpayment. There is, however, a 6 year time limit for taking court action to recover the payment.
What happens if there is a suspicion of benefit fraud?
If the benefit office suspects benefit fraud has taken or is taking place, or they wish to ask questions regarding a person’s benefit entitlement, they will carry out an investigation.
They may do the following things:
- Enquire into a person’s circumstances
- Suspend benefit payments
- Interview a person informally
- Interview a person under caution
What is an ‘informal interview’?
It is standard practice to be asked to attend an ‘informal interview’ if fraud investigators want to ask questions relating to a suspicion of fraud. Any information given during this interview may be used later to make an allegation of benefit fraud.
What is an ‘interview under caution’?
If, however, the fraud investigators believe you have committed an offence they would be more likely to ask you to attend an ‘interview under caution’. Anything said in this interview could be used as evidence in court and a person should be advised of this before the interview starts. If called for an interview under caution, you should be represented by specialist benefit fraud solicitors.
What happens after an investigation?
A case may be referred to the Crown Prosecution Service (CPS) if the investigating officers believe they have enough evidence to show that benefit fraud has been committed.
A case can be referred to the CPS if the following apply:
- The gross overpayment is £2,000 or over (or, if less than this, a person has refused to accept an administration penalty or a caution)
- False documents or identities have been used
- A person helped or encouraged others to commit an offence
- There is evidence of organised fraud
- A person has previously been convicted of benefit fraud
However, not all cases result in prosecution. Certain factors will be taken into account before a decision is made to take a person to court, including:
- Is the prosecution likely to be successful? (This can depend on the quality and nature of the evidence being presented.)
- What is the amount of the overpayment of benefit?
- Has the person previously committed benefit fraud?
- How serious is the fraud? (If stolen or forged documents were used, or multiple benefit claims made, there is more likelihood of a prosecution.)
- What are the personal circumstances of the person? (Age, health and other factors can be taken into account.)
- To what extent was there an intention to defraud the benefit office?
- What type of benefit fraud was committed? (Some types of fraud may be a priority in terms of setting examples, i.e. for those who claim benefits nationally.)
How is benefit fraud punished?
As indicated above, there are several different offences covered by the umbrella term ‘benefit fraud’, as follows:-
- Dishonest representations for obtaining benefit, etc – Social Security Administration Act 1992 (section 111A)
- Tax Credit fraud – Tax Credits Act 2002 (section 35)
- False accounting – Theft Act 1968 (section 17)
The above offences are triable either way and carry a maximum sentence of 7 years’ custody. The sentencing guidelines indicate the offence range to be from a discharge to 6 years and 6 months in custody.
- False representations for obtaining benefit, etc – Social Security Administration Act 1992 (section 112)
The above offences are triable summarily only and carry a maximum sentence of a Level 5 fine and/or 3 months’ custody. The sentencing guidelines indicate the offence range to be from a discharge to 12 weeks in custody.
Fraud by false representation, fraud by failing to disclose information, fraud by abuse of position – Fraud Act 2006 (section 1)
- Conspiracy to defraud – Common law
The first is triable either way; the second is triable on indictment only. They carry a maximum sentence of 10 years’ custody. The sentencing guidelines indicate the offence range to be from a discharge to 8 years in custody.
If found guilty, a person would be sentenced according to the sentencing guidelines for each offence. For certain offences, there is a maximum of 10 years’ custody. However, there are other punishments at the court’s disposal including a fine, community order and suspended custodial sentence, depending on the seriousness of the offence. Specialist benefit fraud solicitors will be able to mitigate on your behalf to achieve the most lenient sentence possible in your case.
A starting point is for the court to identify ‘culpability’ (offender’s role and the extent to which the offending was planned and the sophistication with which it was carried out – high or medium) and ‘harm’ (amount obtained, or intended to be obtained – 6 levels given in the sentencing guidelines). Individual sentencing guidelines are then consulted, depending on the type of benefit fraud committed.
Once a prosecution takes place, if a person is found guilty of committing benefit fraud, there will likely have been an overpayment of benefit. Action may be taken by the benefit office to recover the overpayment. Confiscation proceedings may be considered, under the Proceeds of Crime Act, and our benefit fraud solicitors are fully experienced in these proceedings.
If you have been asked to attend an interview under caution by the DWP, contact our benefit fraud solicitors on 01623 397200 today for free legal advice. It is important that you do not go to the interview without our specialist benefit fraud solicitors.