Benefit Cheats, I Wonder?
Please read this artical which appeared in the October Law Gazette but which I have only just read.
If it doesn't make your blood boil then it should
Neil Bateman looks at social security law and the injustices that are occurring in benefit fraud prosecutions
******** 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 ******** 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 ******** 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 ******** law - the former drives the latter. \nRv Passmore  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.
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 ******** 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 ******** 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.
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.
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, ******** 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. Neil Bateman is an author, trainer and consultant who specialises in welfare rights issues. See www.neilbateman.co.uk.
Could we have a forum on Social Security Benefits please