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….

Defending in Welfare Benefit Fraud Cases

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.

0845 222 0 777

December 2009