Must Appear before a Magistrates Court for benifit fraud

[RHYS01]

Hi Guys, I could really use some advice with a situation I have, so any advice would be appreciated. Last November I was asked to attend an interview under caution for overpayment of Jobseekers allowence, Housing Benifit and Council tax benifit. The total amount claimed amounted to £2290, of which the whole amount was considered an overpayment as I had savings of £15000 - 16000. I attended the interview and told them that I had failed to declare savings, but also I had not declared a £10000 bank loan I was paying back for my masters degree, basically making the point that although it appeared I had a lot I had a lot of bills and loans to pay off and absolutley no income and had no idea when I would be employed.

 

Last March and April the JSA, CTB, and HB requested the money back, I payed back all of the money in full as soon as they requested it, now at the begining of this month I have received a court letter saying I must attend court at the end of this month.

 

The other thing to add is that I had no intention of signing on for more than 12 weeks, I had just finished university and only intended to sign on briefly, then on the 12th week they said they had frozen my benifit and were investigating my claim. I presumed frozen meant canceled but when I spoke to a free solicitor she said to call the JSA and officially cancel. I did this then at the end of the month the paid me in two lumps JSA CTB and HB for the 4-5 weeks they had frozen my account! This amounted to £500 to £600 I had not intended to claim.

 

I am very worried, I have just finished studying 5 years of architecture and I fear my career may be ruined if I have a criminal record. I made a mistake payed back the money in full and have dealt with the stress of this for almost a year and I fear this is going to hit me in the only positive area of my life. Not sure what to do if I had a prison sentence, If anybody could please help I would greatly appreciate it. Thank you for your time.

[antone]

You need professional legal advice from a solicitor experienced in benefit matters. I can't stress this enough.

 

This isn't intended to panic you - it's just that message board advice can't be easily tailored to the specifics of your situation.

 

For what it's worth (this is not legal advice, I am not a lawyer nor a specialist in this field) I'd say prison is highly unlikely for this amount of money.

 

That said, the following springs to mind: you are asked, when claiming JSA, what money you have in your bank accounts and so on. It's quite clearly a question asked on the form, website or by the telephony operator if you claimed via the 0800 number. The fact that you have an outstanding bank loan doesn't make any difference - you are required to declare your savings and it seems you did not. And your savings of £15k-£16k would certainly have affected your entitlement to means tested benefits.

 

The fact that you have repaid the money will surely count in your favour, but yes, this is time to seek professional advice.

[DigitalProduct]

The fact that you have an outstanding bank loan doesn't make any difference - you are required to declare your savings and it seems you did not. And your savings of £15k-£16k would certainly have affected your entitlement to means tested benefits.

Says who? I would imagine if the loan was taken off the savings then it would put him under the capital limit for benefits.

[antone]

Says who? I would imagine if the loan was taken off the savings then it would put him under the capital limit for benefits.

 

Says the law. Loans are not deducted from capital in that way. You don't get to offset your loans against your assets like that, not when claiming means tested benefits. You can spend your capital making scheduled repayments, yes, and if you do that it will not be taken into account and you won't face problems of deprivation of capital. But these benefits are based on the money you have coming in, not on your net worth.

[RHYS01]

Thanks for the advice, the problem is I don't have enough money for legal advice. I am £1500 overdrawn in my bank account, I do have £10000 in a savings account but cannot get access to this until december. Could the citizens advice bureau help?

[RHYS01]

Also as soon as the money in my savings is released It needs to pay the bank loan.

[Pam Dell]

If you can't get free legal advice then you need a law centre.

 

If you can't get that then you will have to go to court by yourself and have a duty solicitor free i believe to everyone, not ideal by any means.

 

If you don't want a duty solicitor you will have to act for yourself.

 

I hate to say it but chances are you will get a conviction and criminal record unless this goes to crown court, your chances there IMO are better.

 

IMO magistrates are very likely to find you guilty.

 

You will have to argue the loan and savings situation with them.

[BigGreenForest]

so it took them over a year to issue a court summons? Why does it take so long? Is this the norm?

I'm probably going to go through something similar.

Dragging it out so long is terrible...

[honeybee13]

Hello there.

 

To answer your question earlier, I think it's worth speaking to the CAB as well as the law centre. They usually have contacts who are benefit solicitors and may be able to get you an initial half hour interview for free.

 

My best, HB

[RHYS01]

Thanks Pam Dell, I appreciate you breaking down my options. I will vistit the CAB asap to get some contacts. You said I will probably get a conviction and a criminal record, I have been trying to prepare myself for that for the best part of a year, what sort of punishment would you say is likely? Would a conditional discharge be out of the question? I'm really worried about how this will affect my career, I barely make a living as it is.

 

I know what you mean biggreenforest, I payed back all of the money, and worried myself sick about this for a year and the punishment is still to come all for about £1500 (the actual amount I thought I claimed before they payed in the amount for the time the claim was frozen). I made a mistake and punishment is in order, but it should fit the crime. I feel my lack of experience early on has allowed them to maximise the crime.

 

Thanks Honeybee13, your advice is really appreciated.

[BigGreenForest]

The amount I'm gign to have to pay back is a lot more than you. My problems are down to misnderstanding, ignorance and confusion of a system i find very complicated, along with some mental health issues. I already paid approximately £2500 to the Job Centre last year, and as the CTB are doinf a 10 year investigation, I expect it to be rife with errors that'll cost me seriusly.

I did nothing malitiously, but i can;t see how to prove that. Mistakes and misunderstanding dont have paper trails after all, and I'm sure that they're going to prosecute. I dread to think how much I've probably run up in error over the years.

[Pam Dell]

I can't really tell you the sentence.

 

You must try for a conditional discharge.

 

I'm surprised this is going to court as everyone on here seems to say that if it is under £2000 they don't usually prosecute but do admin penalty, caution etc.

 

I have a feeling you'll get the best result sentence wise is with a good solicitor.

 

It is all so subjective IMO what the "punishment" is.

 

You could get probation but of course you'll still get the conviction.

 

I hope you get some sound advice.

[DigitalProduct]

Says the law. Loans are not deducted from capital in that way. You don't get to offset your loans against your assets like that, not when claiming means tested benefits. You can spend your capital making scheduled repayments, yes, and if you do that it will not be taken into account and you won't face problems of deprivation of capital. But these benefits are based on the money you have coming in, not on your net worth.

 

Which law says it and would that be from a social security standpoint or a magistrates court because from what Ive heard things are slightly different between the two and it may be worth his while to bring it up.

[kk3852]

from what Ive heard.

 

Says it all really

[antone]

Which law says it and would that be from a social security standpoint or a magistrates court because from what Ive heard things are slightly different between the two and it may be worth his while to bring it up.

 

I agree that it may be worth bringing up in court, although, as I said, the OP should take professional legal advice on this matter. The rules relating to benefits are mostly contained in the various Social Security Acts, and distilled for processors in the form of guidance notes that they use. There is, I assure you, no provision to offset debts against capital, though capital may be depleted to pay debts as they fall due without this being considered deprivation.

 

You are correct that a court has some wider latitude in the factors they consider and may consider this as mitigation. But we don't know that, which is why a solicitor should be involved as soon as possible.

[antone]

If you can't get free legal advice then you need a law centre.

 

If you can't get that then you will have to go to court by yourself and have a duty solicitor free i believe to everyone, not ideal by any means.

 

If you don't want a duty solicitor you will have to act for yourself.

 

I hate to say it but chances are you will get a conviction and criminal record unless this goes to crown court, your chances there IMO are better.

 

IMO magistrates are very likely to find you guilty.

 

You will have to argue the loan and savings situation with them.

 

You've marked the parts of your post that are opinion-based, and for that I thank you. Let's all be careful about offering direct legal advice.

[ErikaPNP]

RHYS01,

 

I agree wholeheartedly that it is imperative to get yourself some representation, I really cannot stress that enough. This is too much to deal with alone. A solicitor knows how the process works, they know what to look for insofar as testing the prosecutions' case against you and they know what to say (if the worst happens) in mitigation.

 

For a total overpayment of £2290, and a first offence that was fraudulent from the outset, if (and that's a big 'if' - see below for information on determining guilt) any penalty you receive is not going to be astronomical. I could guess it with a bit more info but I'm not going to for 2 reasons. The first being that it is only a guess and the second being that I'd have to give you a wide range of possibilities, some of which may be highly unlikely to happen. I've guessed before for others and found that even where I stress that it would be near to impossible for them to get a certain penalty, they panic anyway and start driving themselves crazy. And don't go googling it. In terms of a situation like this, google is certainly not your friend. The internet is a mine of information and a hell of a lot of it is false, or opinion. Opinion is not fact. Stay away from search engines with this one.

 

The reason I am telling you this is because right now, you have to focus and you are not going to do yourself any good by obsessing over this. Your focus at the moment needs to be your defence and any mitigation, not what may happen. What may happen will only happen if you are found guilty. Look away from the word 'guilty'. Now. I mean it, draw your eyes away from it. You need to concentrate on a defence if you believe that you are innocent in the legal meaning of fraud. Yes, there is a legal meaning. Just because you didn't declare something, that is not enough to convict you. Solicitors understand the legal meaning (I've mentioned it briefly below), they will be able to lay their hands on the evidence that the prosecution has and will be able to see from that evidence whether your failure to declare meets the legal meaning. I can go on about it all I want, but what it comes down to is the evidence. I don't know what they have or what their line of argument will be at this stage and I'm pretty sure you won't either.

 

Just to add to what has already been posted about declarations and offsetting etc

 

It is during sentencing that they consider the overpayment claimed as a result of the fraud; the overpayment is used as a measuring tool for sentencing. It is not for the criminal court to make a determination of whether there should be an overpayment, how much the overpayment should be or whether off-setting should be used (and as has been stated a loan cannot be offset against capital for welfare provision); it is whether the court believe that the criminal act was in fact committed, that results in the court's determination of whether a person is guilty or not guilty. Very, very occasionally does the criminal court rule on the sum of the overpayment as this is not their territory - the amount has nothing to do with whether a person is guilty of the offence of fraud - it does not take into account whether they actually gained from it (except for sentencing) just that gaining was the intention. The court will not rule whether a person is guilty or not guilty based on the sum of the overpayment; though it will listen to both the prosecution and the defence's reasoning for the sum involved so that they can decide what sentence is appropriate in view of the magnitude of the fraud, amongst other factors - such as whether it was a first offence, how long the fraud was and the seriousness.

 

The court's role is to reach a conclusion, based on the evidence presented, whether the accused committed an act of benefit fraud, as defined in the Social Security Administration Act (as amended). There are many fraud offences under this law. In this case it would depend on whether he was charged under section 111 or 112.

 

If under 111: it will be considered whether the accused dishonestly made a false statement or representation with a view to obtaining any benefit or other payment or advantage under the social security legislation, whether for himself or for some other person.

 

If under 112: it will be considered whether he made a statement or representation which he knew to be false, with the purpose of obtaining any benefit or other payment or advantage under the social security legislation, whether for himself or for some other person.

 

(RHYS01: See this paragraph for the brief legal meaning)

There really is no question that RHYS01 made a false statement - he declared that he had no capital. This satisfies what is known in 'legal speak' as actus reus- the guilty act. But to be found guilty, a guilty act in and of itself is not enough. Mens rea must also have been present, except in cases where the offence is one of strict liability. Benefit fraud is not a srtict liability offence, so the burden of proof lies with the prosecution to prove mens rea in order to to secure a conviction. Mens rea means that the person knew or could reasonably foresee that what they were doing was unlawful (sometimes it is referred to as 'with intent' or 'wilfully'). So the real question is whether in making the false statement, whether he did so dishonestly (section 111) or knowingly (section 112) and in order to obtain benefit or other payment or advantage under the social security legislation, whether for himself or for some other person. If they cannot satisfy the burden of proof that he did so dishonestly or knowingly with the intent of gaining, there will be no conviction.

 

In terms of recovery of an overpayment, this is civil jurisdiction and it is here that a person could argue the value of the overpayment or whether there should be one at all. Even where criminal courts have determined that the claimant was not guilty of fraud, there can still be a recoverable overpayment - because the standard of proof required in civil proceedings is less than that required for criminal courts proceedings. A person can have an overpayment as a result of failing to declare capital but not be found guilty because the criminal court decided that although there was a failure to declare, this was not done dishonestly. I've seen many cases where the claimant has been found not guilty in magistrates/crown courts but has a recoverable overpayment which is upheld in the Secretary of State's favour in the Social Entitlement chamber of an appeal tribunal. Of course I've seen it go the other way too, where a person has been convicted of benefit fraud but when they appealed the overpayment in the Social Entitlement chamber of the appeals tribunal, the tribunal have decided that the overpayment is not recoverable.

[Stan Lee]

Erika, an awesome post.

 

I'm just curious: as an outsider in these matters, if the OP has savings that he cannot access until Dec 2012 then would he still have been eligible for benefits even if he had declared them correctly on the initial application forms? (I assume it may depend on what sort of saving account/trust fund we are talking about, and how 'impenetrable' it is?)

 

Also -- and I realise that this may fall under the umbrella of 'mitigation', but would it be possible for his solicitor to argue that, given that he cancelled his claim at the£1500 mark, and that it was the 'machinery' that put him over the £2000 pound mark, could his legal representation argue that an administrative penalty is the most appropriate punishment?

 

Just curious.

[ErikaPNP]

Hi Stan Lee.

 

Exactly right about the access to savings - it would depend (hugely) on what he means by inability to access it and where the funds are held. If it doesn't fall within the social security definition of disregarded capital then it affects benefit. If it does fall within the definition then he'd still be entitled to benefit until such a time as they can be included in the capital calculations.

 

An ad pen is issued by the department that brings the fraud action as an alternative to prosecution, not by the courts. There is nothing that says they can't or won't prosecute for less than £2000; it's just rare that they do unless there are other factors involved which would make it an appropriate prosecution referral, and the prosecution clearly think they have a case otherwise for that amount, they'd decline it and hand it back - it wouldn't be worth the bother for such a paltry sum (paltry in the grand scheme of things), as they already have their money back. My guess here, given the amount is that there probably are other factors involved (or at least the department believes that there are) and those likely have a higher bearing on their reasons for referral for prosecution rather than the sum involved. It's certainly something that he can argue before it goes to court to try and get an Ad Pen but in my experience, I've only seen them divert from prosecution once a court date is set a handful of times. So go for it (via solicitor) but do not get hopes up too much.

[jabba jones]

RHYS01 could/should have appealed the potential official error part of the overpayment, but it will be far too late for that now.

 

I presume when he closed the claim he didn't explain to the processing section that he wasn't due any arrears but they should have queried the suspension with FIS before releasing any further payments.

[RHYS01]

Thanks ErikaPNP that's some sound advice. Just so you know here is the exact wording of the charge in the letter.

 

Charge

 

On or about ** June 2011, RHYS01 for the purpose of obtainig jobseekers allowence, made a false representation in a customer statement namely that the information given was correct and complete whereas he failed to provide the information that he had capital in excess of the prescribed limits, Contrary to Section 112(1)(a) of the Social Security Administration Act 1992.

 

Also when the investigation was going on, they requested evidence about the £10000 I had in savings, and I went to the bank to get evidence that showed that my grandmother had put it in for me for the purpose of paying of student loans when I had finnished my course, and that the account could not be accessed until matured.

 

There is one other thing to add to this although it has not come up in the charges it did come up in the interview. Two years ago before starting my second degree, I signed on to JSA only for 6 weeks, the total amout claimed was like £350. I did have the savings account I could not access, but no other money, and my account was constantly overdrawn. At this time I was like 21 and had no Idea how the system worked.

[antholmes]

so presumably the basis of your argument is going to be that you did not declare your savings (£16K) as you believed you did not need to as you then had no access to the savings? From reading the thread I'm speculating you've since had access to the savings? (Now £10K) but you again have no access to them (until December).

 

As an impartial person looking in I would have to side with the prosecution from the evidence at hand TBH. I'm very sorry that this has happened to you and can see how easily it is for these things to develop. No idea of what punishment you would receive, though I'd be stunned if you were imprisoned.

 

Hope it turns out ok for you, best case scenario would be a caution I guess. That's me talking purely as a layman.

[RHYS01]

Is it possible to get a caution once it goes to court?

[antholmes]

yes I believe it is. Last year I was arrested at a football stadium for having 4 cans of unopened lager in a bag. I was very angry about this as seemed way OTT. Anyway, I accepted a caution 'Possession of intoxicating liquor when entering a sports ground'. Afterwards, I was angry with myself for accepting and wished I'd instead see if they'd take me to court. After doing research the general consensus was that I should have just taken it to court. Why? Well as I'd never offended and there was mitigating circumstances the judge was highly likely that even if I was found guilty he'd only had me a caution.

 

Although you've done wrong I feel you would be shown some leniency given you quickly paid the cash back, plus your savings were "locked down" up rather than available to you. Like I say, I'm talking purely as a layman here.

 

Perhaps you could pay one of those online solicitors for their expert opinion, though I stress I can't vouch for their authenticity or fees they charge. All the best.

[Pam Dell]

The police issued you the caution didn't they?

 

The police are not involved in the OP's case if i am reading everything correct.

 

Do you mean a caution by the DWP?

 

I can't see this happening as he has already been summoned to appear at the magistrates court.