can you help with intended prosecution by DWP

[joyjoe]

First of all this is my first post and hope I have posted in the correct area.

 

In July of last year my sister was asked to attend an interwiew by The Counter Fraud Department. She was told in interview they had received an allegation which they had to investigate. It was apparent that they were investigating the possibility of her LTAHAW with her ex-husband, which she was not.

 

During this interview, My sister informed them she was not entitled to benefit from march 2008 as she had recieved money from an inheritance. Shortly after the interview she received a letter saying she owed a substatial sum. Without going into all the details, they then tried to reclaim from her monies paid from dates going back to 2005.

 

My sister asked if a decision maker would look at the dates again saying she agreed with the dates from mar 2008 upto july 2009, as she had saving over the limit allowed, but disputed the dates going back to 2005 as she was not living with her ex husband as they stated she was. The DM upheld the decision.

 

My sister took the case to appeal and was successful. At appeal she put forward her case based on the two sets of dates. She freely admited she was not entitled to benefit from Mar 2009 and asked the judge at her tribunal to look at the previous dates the DWP said she was living with her ex. The Dwp failed to send anybody to the tribunal to argue there case. The judge found in her favour re LTAHAW but found against her for failing to declare she had received money. This was never disputed by my sister and my sister was happy with the outcome. She had already repayed her Community Charge, had been repaying money to HB and Income Support for some months and expected for that to be an end to the matter, once she had been given the final amount she owed. She informed HB of the tribunal's decision. She then contacted I S who said they hadn't received notification etc.

 

Two weeks later she recieved a summons through the post telling her to appear in court this coming January. She had at no time previous been told of their intention to prosecute. This is despite my sister phoning on a number of occasions to ask if she was to be prosecuted, only to be told no decision had been made! So now to my Questions....

1. Should the DWP have informed my sister before recieving the summons in the post of their intention to prosecute.

2. I have read on this forum that DWP ask for appeals to be halted until they have prosecuted, or at least that was my understanding

3. Why have they waited for 15 months to tell her they are prosecuting are they allowed to do this?

4. My sister has never been in trouble with the police, has never been investigated for benefit fraud before, she is a single mum with two children, she freely admited her wrong doing so I cant understand why they would want to prosecute her.

5. I looked under the in the Public Interest not to prosecute' and found apart from the fraud amounting to £4,000.00 the criteria for a caution could be met.

6. Do they always prosecute?

7. Is there anything she can do to try and halt the prosecution?

 

I would be grateful for any advice, help or feedback regarding this matter.

Many Thanks Joy

[joyjoe]

could anyone please help in anyway. Some advice no matter how small would be appreciated.

[honeybee13]

Hello there and welcome to CAG. You need someone with specialist knowledge to asnwer this one and they're not around all the time. I've never had dealings with this so can't help you, sorry. Please bear with us and I would hope someone in the know will be along later or this evening.

 

HB

[ErikaPNP]

Hello, joyjoe.

 

I will quote your questions and type my answers underneath for your ease of reading. Bear in mind that as in my signature my answers are not always what people want to hear. They are not my personal views, they are the facts as I know them, and as unsavory as some answers may appear, it is better to be in a position of knowing where you stand rather than me giving you answers that are false/based on opinion rather than fact. There are also things I cannot answer fully because I simply don't know. There are some previous fraud investigators who are members of CAG, and they may be able to cover some of that for you if they come online.

 

1. Should the DWP have informed my sister before recieving the summons in the post of their intention to prosecute.

 

When an overpayment resultant of fraud is in excess of £2000, the FIS (Fraud Investigation Service) have to refer it to their solicitors. It is they who make a decision on whether or not to prosecute. The information held by the solicitors would not be held on DWP computer systems so when a person rings in, the information about this would not be there. They are only able to give information that they are aware of and are permitted to disclose. There are undoubtedly some matters that they cannot disclose, particularly over the telephone. Whether the DWP have any internal policy that places a duty to notify a person that prosecution proceedings are underway, or that they have referred the matter to their solicitors (other than by issuing the summons) I don't know. There is certainly no legal requirement that I am aware of; and claimants are always notified that they may be liable to prosecution for fraud - on claim forms, on any declaration that they sign, and when given the caution.

2. I have read on this forum that DWP ask for appeals to be halted until they have prosecuted, or at least that was my understanding

 

This is common, yes. But it doesn't happen all the time because as stated above and below, they often have not yet heard back from the solicitors due to the lengthly time it can take to decide on prosecution, so don't yet know if prosecution proceedings have commenced.

 

3. Why have they waited for 15 months to tell her they are prosecuting are they allowed to do this?

 

Deciding whether or not to prosecute and gathering any further necessery evidence can be a very lengthly process. I've seen some cases wait a good deal longer from IUC to summons before a decision is taken on whether to prosecute. They may need to acquire more evidence, gain more sources of information, witnesses, etc. Yes they are allowed to do this.

 

4. My sister has never been in trouble with the police, has never been investigated for benefit fraud before, she is a single mum with two children, she freely admited her wrong doing so I cant understand why they would want to prosecute her.

 

Because she committed a criminal offence, obtaining public funds in excess of £2000 which is sufficient to satisfy the public interest criteria and they must feel that the evidence satisfies the criteria for a sucessful prosecution - that doesn't of course mean that the prosecution will be sucessful - just that they believe it will be.

 

5. I looked under the in the Public interest not to prosecute' and found apart from the fraud amounting to £4,000.00 the criteria for a caution could be met.

 

There is no question but I assume you are asking why - if so, please refer to the answer above. If an overpayment is in excess of £2000, that alone is sufficient to go ahead with prosecution if the evidence is also sufficient.

 

6. Do they always prosecute?

 

No. They only prosecute where a case meets both the evidential and public interest requirements, the same as any case that would land on a prosecutors desk. If the evidence is not sufficient or the case does not meet the public interest criteria, a prosecutor cannot bring it to court, no matter how convinced he himself may be that the party is guilty.

7. Is there anything she can do to try and halt the prosecution?

 

Not unless she/her solicitor can demonstrate that they are wrong to prosecute, or that there is no case to answer.

[joyjoe]

Thank you Honey bee, some food for thought there! I would like to stress that my sister is a good person who made a bad error of Judgement. She has paid over half of the money back and has had to endure 17 months of stress which has impacted on her children. She admits she has no one to blame but herself but I do feel it is very harsh to deal with someone if you like who has never been in trouble in her life.

 

My understanding is that there is very much a case that some people who have de-frauded the DWP with totals running into tens of thousands of pounds are sometimes offered a caution or a penelty, so it doesn't seem fair that some people 'get away' with it and whilst others don't! Searching the web I also found that upto 90% of fraudsters do not go to court but receive a caution or a penelty

 

Again I cannot understand why it has taken so long to issue a summons when my sister admitted the overpayment in July 2009 when IUC. It seems to me the prosecution came about because my sister won at tribunal. Given that they were accusing her of LTAHAW with her ex-husband which she was not and an overpayment due to an inheritence. My sister at the tribunal told the Judge she was guilty of that offence, hence why the Judge found in the DWP favour on those specific dates.

 

My sister received a letter from HB after the Tribunal Decision which stated

" I hope this now brings the matter to a satisfactory conclusion"

Two days later she received a summons to appear in court in January.

 

My argument is this.

1.It states on the DWP website that benefit fraudsters run the risk of a prison sentence or fine. How can that be in the public interest to send a mother of two young children to prison, and all that entails.

2. She has freely admitted her wrong doing and is paying back the overpayment. Therefore the tax-payer will be paid back.

3. She has had this hanging over her for the past 17months Surely that is a punishment in itself.

4 Finally the DWP have been obstructive and uncooperative from the start. My sister has tried to communicate on many occasions and been fobbed off.

 

I am afraid I just believe it is pointless to prosecute someone who have already held their hands up, co-operated with them at every turn, and is of previous good charactor. In my opinion Everyone deserves one chance. Thank you Honey Bee for your post it has at least opened my eyes to the Dwp

[honeybee13]

Hello again. I don't think I did anything much apart from being the first to say hello . It's Erika who did all the work and she really knows her stuff. I hope you manage to get this sorted for your sister.

 

HB x

[Animal Lover]

As Erika has already pointed out prosecution is always the first option when the overpayment is over £2000. A caution can only be considered if the o/p is under £2000. Similarly an AdPen cannot be offered if the o/p is over £2000. Very rarely, (usually if there is insufficient evidence) a case will be closed and no further action taken. Even if your sister had not freely admitted to the inheritance there would be evidence to the contrary. The statistic you quote of 90% of fraudsters not being prosecuted is because the vast majority of cases investigated result in overpayments of less than £2000.

There is a letter which can be sent by the investigator to warn of intended prosecution, once the case is passed to DWP solicitors, but it is considered good practice to do so and is not compulsory. Your sister should have been given a form following the IUC explaining what happens next and this clearly states prosecution is an option.

It is highly unlikely that your sister would face imprisonment for a first offence of this nature.

Unfortunately all too often people only consider the implications of their actions once they have been 'caught'. It would appear from your post that your sister knew she wasn't entitled to claim once she received the inheritance and yet made a decision to continue to do so. I appreciate this may seem harsh but she has to accept that she has broken the law and face the consequences.

[ErikaPNP]

I've no doubt that your sister is a good person. Most people are. I'm going to play devil's advocate. If a mother had plenty money and visited a little old lady on a regular basis, the old lady trusted her but behind her back the mother fleeced said little old lady for £4000, would it not be in the public interest for prosecution proceedings simply because she paid some of it back and had two young children? Benefit fraud is very similar. It's a person who has their own money but still who are taking other money that they doesn't belong to them and is meant for other people, particularly the vulnerable.

 

Unless the claim was fraudulent from the beginning, it's unlikely that your sister will go to prison over £4000. They will consider the fact that she readily admitted it, has been fully co-operative and that she has two young children. These are mitigating factors that her defence will present to the court. Prosecution doesn't equal prison automatically, and rarely these days - because prison is reserved for hardened criminals, and from what you have written, your sister though having committed an offence does not fit the criteria of what I would label a hardened criminal. She will probably receive a fine or a community order, if that.

 

The tribunal has no bearing on the decision to prosecute; they are two entirely different areas of law, with different standards of proof. As an example, even where a criminal prosecution finds a person not guilty of benefit fraud, the civil tribunal can still make the person repay the overpayment.

 

Some fraudsters are prosecuted, some aren't, Each case depends on it's own individual circumstances because the prosecution have to be content that it satisfies both the evidence and public interest tests. So where a fraud of hundreds of thousands would most certainly be in the public interest for prosecution, it won't go ahead if the evidence test is not satisfied.

 

She really ought to get herself a criminal solicitor. She also needs to know what they are going after her for. Whether it's LTAHAW, or the failure to declare capital or both. The solicitor will be able to look into this for her and gain information that the prosecution has so that he can properly advise her

[joyjoe]

Firstly thankyou to you all for your posts. Secondly sorry Erika I got you mixed up with a Honey Bee! I think the general consensus is that my sister should take it on the chin. Anyway she is going to send the paper work off to the court and plead guilty as she had already done this under caution anyway. I am going to help her with the mitigation and we will see what happens after the court appearance. I still think this system is flawed, but hey that is just me For instance Erika you say and I Quote

I've no doubt that your sister is a good person. Most people are. I'm going to play devil's advocate. If a mother had plenty money and visited a little old lady on a regular basis, the old lady trusted her but behind her back the mother fleeced said little old lady for £4000, would it not be in the public interest for prosecution proceedings simply because she paid some of it back and had two young children? Benefit fraud is very similar. It's a person who has their own money but still who are taking other money that they doesn't belong to them and is meant for other people, particularly the vulnerable.

My Question would be how would people feel then if the heard they got off with it because the money stolen only amounted to £2,000. It is still fraud whether it be £500 or £5,000. However ,Someone, somewhere has come up with a figure and my argument is this, an over payment of say £2,000 for a single person would take about 30 or so weeks of lets say working whilst claiming benefit. However a single mum over the same period doing the same fraud could run up almost double that amount. The DWP would prosecute the single mum but not the single person. That doesn't seem fair either. The single parent may never have been in trouble with the police before the single guy/ women may have had a conviction for a misdemeaner. They may have received a police caution which is now spent and so on and so forth. The list could go on and on.

Many people in their youth have been given a second chance, a caution etc and have never gone on to commit any other crime, that is why I am an advocate of giving people a chance based on a number of principles not just the figure pulled out of the air by some cival servant. I believe the most important thing in these situations is have they done this before? do they have a record? what was the time period of the fraud? etc

Another thing I would say lets take burglers who steal from a house. They do not have to pay back what they have stolen. They have to appear in court and are likely to receive a community order, fine or prison sentence. However they do not pay the victims back. Benefit Cheats do!

Sorry to go on Erika but I do believe a crime is a crime, a fraud is a fraud. However someone has come up with a fiure to say we will prosecute you if you have an overpayment of £2050 but we wont prosecute you if your overpayment is £2000 this seems a little crazy to me

[upseydaisy:)]

Its just the way it is op. Your obviously worried for your sister and will be good support, but rather than get further frustrated by what the rules are, and this is not a dig (((hugs))) its better to deal with it step by step and think of it as another step nearer to ending the whole matter. Best wishes for you and sister.

[Mr. H]

It might be the way that I’m reading this, but cutting through a lot of why’s and wherefores, op’s sister whilst during the course of an IUC relating to an allegation of LTAHW, admitted that she had failed to declare that she had undeclared capital/savings. As a result of that information (confession) an overpayment has been raised, and, it is for this that she is being prosecuted.

 

Sadly the ball is rolling, and rolled so far that there is little you can do to stop the process, and it is for this reason that she MUST seek legal advice as soon as possible, and get that advice for a criminal lawyer with experience in Welfare/State Benefits.

 

A decent defence will examine the evidence to ensure that IUC has been conducted correctly, and that the investigation process has been followed correctly. As the Prosecution teams are pretty hot with regards PACE, The only likely defence that might get your sister off the hook is if there have been undue delays during the course of the investigation.

 

Your *good* layer will be able to argue that any delay during the course of the investigation…that includes any time after the initial referral was received by the DWP, not just the date your sister was interviewed, is an abuse of process and as a result renders prosecution unreasonable.

 

However this is more fantasy, and could be more realistically used as a bargaining lever to try to get the DWP to drop the prosecution in favour of a formal caution. Again this is a long-shot, but in my experience not unheard of. Your lawyer would have to be very firm with the FIS Manager that your sister *will* plead not guilty, and that there is a real chance that the court will find in her favour, as well as being a very expensive day out for the FIS investigators, lawyers, and (if she pushes it all the way) barristers.

 

Please remember that this is still a long-shot, and more than likely you will be faced with a trip to court. Based on what you’ve posted already, a guilty plea will be the easiest way out (unless of course your lawyer really can find a decent sized loop-hole). What you’ve already posted will be the basis of the mitigation, and should be read out before sentence is passed and should include the following:

 

• Your sister is very sorry
  
• Has never been in trouble with the law before
  
• Your sister has learnt a great deal from this experience and as a result…
  
• …Will never let anything like this happen *ever* again
  
• She has co-operated with the investigation team and the investigation process in every way.
  
• Your sister is *very* sorry
  
• Not only did she admit guilt, but drew the investigators attention to the fact that the offence had occurred in the first place. Furthermore had she not volunteered that information during the interview, it is possible that the information might never have come to the attention of the DWP.
  
• Your sister has endeavoured to repay the overpayment as quickly as she has been able, at times, and especially this Xmas, she and her two children, who she has (and has always had) sole parental responsibility for have endured the most frugal of times, in order that this debt can be repaid and that she can put this whole matter put behind her.
  
• She is very very sorry, and vows that nothing like this will ever happen again.
  

Bulk this out with a bit more about her good character and any voluntary/community work she might do (even helping out at the kid’s school), and the whole process might be a lot less painful than you or she imagined.

 

The one thing I can’t comment about and your sister will need to be prepared to answer if asked by the court is:

 

“Why didn’t you declare this inheritance in the first place?”

[scaredtodeath]

Hi, I was one of those good people who got caught to, theres no way to stop the prosecution, i paid my overpayment back beforehand and it still went ahead. Unless the rules have changed since June she won't go to jail, the guidelines say jail is possible for £5k, you can look that up. Took them 18 months to inform me too so 15 months is not so bad lol although my solicitor mentioned it being so long and I think helped get it resolved on the day. She did it she admitted to it and just needs to take it on the chin.

[ErikaPNP]

Prison can be an option from £2500, though it is unlikley in this case unless the claim was fraudulent from the outset.

 

The sentencing guidelines for benefit fraud which you can view here, have been in force since 26th October 2009 and are still current.

[scaredtodeath]

I'm sure it was 5k and my solicitor said I wouldn't go to prison as the amount wasn't high enough....anyway wont argue cos you know more than me lol theres a site that gives peoples sentences and it can be like 50,60,70k and no jail not sure if i can say what it is here?

[ErikaPNP]

Your solicitor was probably right in your cirucmstances. For less than £5000, prison is only an option if it was fraudulent from the outset and either carried out over a significant period of time or multiple frauds. The link I gave is the official sentencing guidelines from the Sentencing Guidelines Council.