What is benefit fraud?
Benefit fraud is a criminal offence and can lead to severe penalties, even a custodial sentence, so if you’ve been wrongly accused of it, you will need to have a defence which is either that you are eligible to receive benefits, or that you didn’t intend to be dishonest (i.e. it was an honest mistake!).
Benefit fraud involves either intentionally withholding details or providing inaccurate information when applying for benefits. For example:
- Using a false identity or falsified documents;
- Failing to report a change in circumstances, such as having a partner move in with you or getting a job;
- Not declaring your true financial circumstances, such as your savings;
- Falsely exaggerating your disabilities.
How benefit fraud is proved
To be convicted there must be proof that you committed the fraud and had an intention to be dishonest. If you received benefits because of a genuine mistake, then this does not amount to benefit fraud because you did not deliberately deceive anyone. The essence of fraud is that you knowingly defrauded the benefits office.
Read more about our advice on gathering evidence to prove fraud.
How to I avoid a false allegation of fraud?
Keep a record of all communications
Mistakes over benefit payments happen regularly because the benefits system is complex and you may not have been aware of all the rules. For example, you may have been claiming benefits, only to suddenly become ineligible through an increase in savings in your bank account.
This means that the best thing you can do is anticipate trouble and keep all your communications with the benefits office. That means keeping all correspondence and emails. If any discussions happen over the phone or at face to face meetings, you need to make a written record of all your conversations with the benefits staff straight away afterwards. Make a written record of who you spoke to, when and what was said. Here is our guidance on how to make good records: https://www.myonrecord.com/how-to-make-good-records/. Your records made at the time are much better than trying to remember discussions long after the event, they’re much more likely to be believed and could get you out of trouble.
How is fraud investigated?
The informal investigation
If you are suspected of benefit fraud, it will start with an informal investigation. During this investigation you will receive a letter, asking you to confirm certain details. You may also be asked to attend a meeting or to provide proof in support of your claim.
At this stage, you are not necessarily being accused of benefit fraud. The benefits office will be checking that you are receiving the correct benefit and the right amount of money. Informal investigations often arise from a tip-off from a member of the public which is not always accurate. The purpose of an informal investigation is to eliminate false or malicious reports.
Overpayment
If the benefits office calculates that you have received an overpayment, you will be asked to repay the money. This might happen if errors were made, either by you or the benefits office. If you accept that you have received an overpayment, you will have to repay the money. There may also be a penalty if the mistake is yours but as long as your mistake was genuine, you should not face any criminal charges.
If you have grounds you can challenge the decision that you received an overpayment. The benefits office may have misinterpreted the facts, in which case you will need to prove you are eligible to receive the financial support you had. Say if you think there might be a misunderstanding and how it arose. If you have kept records of any communications with the benefit office that support your reason for challenging the decision, then you’ll find it easier to prove.
However, if the benefits office believes you have been deliberately dishonest, you will be accused of benefit fraud and there will follow a formal investigation.
The formal investigation
If you are accused of benefit fraud, you will be notified that a formal investigation is taking place. This might be carried out by the Department of Work and Pensions, HMRC, your Local Authority or another government body. This is serious because their powers are wide reaching. They can put you under surveillance, obtain copies of your bank statements, and interview people you know, as they gather evidence.
As part of the investigation, you may be visited by Fraud Investigation Officers or invited to attend an ‘interview under caution’. This is like a police interview. The interview will be recorded and anything you say can be used as evidence against you. You have the right to legal representation and it is essential that you ask a solicitor to accompany you. You should try to instruct one with experience of representing clients who are accused of benefit fraud.
If you see a solicitor quickly they can review the evidence before the interview and advise you on the best approach. If your mistakes were genuine you will need to prove that no dishonesty took place and a solicitor will try to resolve the matter at the investigation stage. Similarly, if you are entitled to receive benefits, a solicitor will help you confirm your eligibility.
Prosecution
If the investigatory body believes there is sufficient evidence, you will be charged. You will be sent a summons to attend court on a particular date. You should try to get legal representation for the hearing. During the hearing, evidence will be heard and your solicitor will defend you or set out the mitigating circumstances explaining your actions.
The penalties for benefit fraud can be severe including a prison sentence and a financial penalty. In addition the money you received can be recovered under the Proceeds of Crime Act. This can amount to thousands of pounds and can lead to your assets being confiscated. Your benefits can also be reduced or stopped for up to three years.
Expert legal representation is crucial.
Jill Canvin, 21 July 2020