Defending in Welfare Benefit Fraud Cases
In these times, when public money is tight the pressure is
increasingly on government agencies to recoup money and prosecute
"benefit cheats." In the first of a series of articles, a leading
defence solicitor and higher court advocate, Gary Lesin-Davis of
EAD Solicitors LLP looks at giving you a better understanding as to
what steps can be taken when the welfare benefit fraud
investigators come knocking....
Usually, the first sign of trouble, apart from seeing strange
cars driving up and down the road either first thing in the morning
or last thing at night, is getting a letter through the door
telling you to come in for a formal interview to discuss your
claim. The letter will be addressed to the claimant although
worryingly there may also be a letter addressed to someone who has
never ever claimed benefit in his or her life. (As to how this can
be so see later in this article)
The letter is always startling and usually speaks of having
reason to conduct a criminal investigation into a claim for benefit
and having a need to interview under caution. The letter will very
conveniently have made an appointment for you to attend at an
interview location giving you a timed appointment. The letter will
never tell you exactly what is being alleged, everything in the
letter will lead the reader to believe that he or she should attend
or face the consequence of the details being passed to a benefit
fraud prosecutor, who will consider commencing criminal proceedings
against you despite your interview not taking place.
Interviews will always take place under the provisions of The
Police and Criminal Evidence Act 1984 and are taped. The
investigator will have prepared the interview, will be invariably
experienced and will know what he or she wants out of it. The
claimant is unlikely to have experience of such interviews and
would rather that the whole thing just went away and hopes that
they can just get it over with as quickly as possible.
So you have the letter "inviting" you to attend. Should you go?
Need you go? Is it better not to go? All of these questions need
careful consideration.
Benefit claimants are used to having to attend at appointments
to see the DWP and Housing Benefit agencies. The welfare
authorities know this and they also know that if people don't go to
interviews they may think that they may lose their benefit. It is
important to note that the payment of benefit isn't linked to
whether or not you attend at this type of formal interview.
The very last thing you should consider doing is going to the
interview without first having taken competent legal advice.
Firstly, the solicitor can contact the investigator and find out
exactly what is alleged so that he can get advanced disclosure of
the allegations which will certainly help his client better
understand what is alleged and better plan the best form of
defence.
There may be very good reasons for you not going to the
interview. If you have read the letter carefully, you will discover
that you do not have to go to the interview, the investigators will
have had to have told you this by law but that is the last thing
they want you to do. As with any criminal allegation, it is for the
Prosecution to prove guilt not for a claimant to prove their
innocence. One of the main aims of the interviewers from the
Benefit Agency or Local Authority is to obtain from the person
being interviewed material that will assist in a Prosecution. Once
you attend at an interview what you say or even what you don't say
may end up being used against you in a court. So the decision as to
whether to attend needs to be carefully considered with your
lawyer.
Earlier in this article, I suggested that a person may be
investigated and even prosecuted when they have never even claimed
a penny of benefit in their life. This scenario often arises where
a partner is the claimant and the investigation has led to a
suspicion that the claimant is living together with another person,
but that the claimant has made a declaration and has claimed
benefits as a single person living alone.
A true and rather amusing case, although not for the Defendant,
illustrates how innovative investigators can be in obtaining
evidence in these types of case;
When a lady revealed to women's magazines and television chat
shows about a condition that caused her to experience up to 40
orgasms a day, the Department of Work and Pensions took a keen
interest. The 50 year old woman spoke not only about living with
persistent sexual arousal syndrome but also with a 22-year-old
lodger.
Benefit fraud investigators carefully monitored media coverage
about the lady and realised that the man she claimed was her
lodger, was in fact her lover. They found that she had been
overpaid in housing and income benefits after lying to the
department. She was prosecuted to conviction.
The investigators, as can be seen, have their methods of
determining whether persons are living together in the same
household. Nowadays, computers in various agencies such as HM
Revenue and Customs, DWP and Local authorities are linked together
so that information can be cross checked. Persons applying for
loans and credit leave an audit trail with credit reference
agencies all of these can be investigated. Prosecutors are now much
more willing to prosecute the non claimant as well as the claimant
for very good financial reasons. Very often, the non claimant will
own assets he may own a property and he may even be the claimant's
"landlord" for the purposes of facilitating a claim for Housing
Benefit. Securing a conviction against such a person will lead to
an application to the Court for confiscating assets belonging to
such a person under the Proceeds of Crime Act. This legislation,
which is highly complex, is deliberately designed to make it easy
for prosecuting authorities to get their hands on the assets of
those convicted and they may not be limited to the amount of an
overpayment. It is important for these persons to take prompt legal
advice before walking into an investigators interview.
An interview is a tricky process very few suspects are able to
talk their way out of trouble or charm the investigators into
thinking that their suspicions are ill founded. Certainly, if a
decision is taken to attend at the interview, advanced and careful
consideration of the allegations and the admissible evidence in the
hands of the authorities is a must and the presence of effective
legal representation will significantly tilt the balance in favour
of the person being investigated. The investigators may at an early
stage only have suspicions they may not be able to prove. Many a
case has been proven by the suspect helpfully volunteering a
critical missing piece of the investigator's jigsaw. Submitting to
a question and answer interrogation is not the only option
available to an interviewee. It may be preferable to offer a
prepared written statement, decline to submit to questions and
leave. On the other hand, it may be advisable not to answer any
questions and to exercise the right to remain silent, although
there may be adverse consequences in pursuing this course of
action. Much will depend on the facts and circumstances of each
case and the taking of prompt expert legal advice is critical.
Whilst generally, proceedings are started by a summons in the
Magistrates Court. Sometimes the agencies work in cooperation with
the Police and the suspect(s) are arrested and taken to the police
station for an interview conducted on tape. In these circumstances,
the attendance at the interview is no longer voluntary and the
ability not to submit to attending at the interview is not an
option. However, the ability to have disclosure prior to interview,
to submit a prepared written statement or not to make comment still
exists. From the investigators perspective, the ability to conduct
a search of a suspect's home address whilst the suspect is under
arrest is an advantage. Material supporting the investigation is
often found including often incriminating pictures / videos of
expensive family holidays abroad undertaken whilst claiming state
benefit. Material such as correspondence and personal belongings
found at a target address will often support the contention that a
person is normally resident at the property when that person was
claiming not to be residing there. Free legal representation whilst
a suspect is at the police station is always available regardless
of means.
Turning to Court proceedings, when a summons is issued it will
be served generally by first class post it will often be
accompanied by supporting statements and documentary exhibits. All
cases commence in the Magistrates Court but they may not conclude
there, some cases may go to the Crown Court. This will depend on
the exact charges laid as some charges can only be tried at the
Magistrates and some others may be tried at either court. A person
charged can in certain circumstances decide themselves where the
matter is dealt with. This decision is always a very important
decision and may make all the difference between guilty or not
guilty verdict or in the event of a conviction or guilty plea a
custodial sentence or a non custodial outcome.
What charges appear on the summons will usually depend upon a
number of factors but they will usually reflect the level of
seriousness the Prosecutor views the case.
It is critically important to consider the actual charge and
statute under which it is prosecuted. This is because what the
Prosecution need to prove varies depending on the charges and Act
under which it is prosecuted.
Under S112 of the Social Security Administration Act 1992 the
Prosecution must prove that the Defendant knowingly or deliberately
failed to notify changes of circumstances or misrepresenting
circumstances in connection with benefit claims. These proceedings
are subject to statutory timescales.
Under S111A of the same Act the Prosecution must additionally
prove that he or she did so dishonestly.
The benefit rules can be extremely complex and it cannot be
assumed that a Defendant understood the rules of entitlement for
benefits and thereby knowingly and deliberately failed to report a
change in circumstances or indeed that he did so dishonestly.
The benefit rules will often be a matter of expertise and a
Defendant will not wish to rely upon the expertise of the
investigator to assist in running a defence. An expert will be able
to assist as whether the failure or misrepresentation actually
affects benefit entitlement.
Charges may also be laid under the Theft Act 1968 or under the
Fraud Act 2006 and the key factor of dishonesty is always a
relevant consideration.
What if you have claimed the wrong benefit? In other words, had
you been properly advised at the time of your claim as to what you
might have been entitled to you would not have been facing criminal
proceedings. It may still be possible to calculate entitlement to
alternative benefits and to be able to use these to your advantage
in criminal proceedings to reduce the figure stated to be the
overall loss to public funds. This is important because in
determining the appropriate level of sentence one of the key
factors a court must take into account is the net loss to public
funds. If this figure can be reduced it may make all the
difference. Furthermore, the question of the accuracy of the
calculation of the alleged overpayment generally by the Prosecution
should be checked it is not always accurate.
The fact that you are charged and are going to Court may not
necessarily mean that you will be prosecuted to conviction. There
are alternatives to prosecution available such as Cautioning and
the imposition of administrative penalties.
Criminal proceedings are always the cause of anxiety for those
charged and often those targeted in this area are less well
equipped to deal with all of the issues than others in society. The
Courts have the power to send people to custody and such sentences
are far from unusual. Good legal advice and guidance will often
make the difference.
Gary Lesin-Davis, EAD Solicitors LLP.
http://www.eadlaw.com/
0845 222 0 777
December 2009