I am currently working with a client who claimed Housing Benefit and Job Seekers Allowance as a full-time university student. Housing Benefit realised this they issued a large overpayment of £8000 and also started a fraud investigation. I was refered the case 4 months after the intitial overpayment demand and after the fraud investigation had started. I did not believe he had grounds for appeal for the period when he was a student, however for part of the overpayment period, he did leave University for 6 months and worked so I queried this and he has been awarded Housing Benefit for that time.

The difficulty I have now though is that firstly, I have recently found out that he has had another adviser at college who had appealed the original overpayment 3 months before I was refered the case, mainly on the grounds that he suffers from depression. This appeal can not be traced by the Housing Benefit department. Secondly the fraud investigator has said that the client can either pay a huge administration penalty of 30% of the overpayment amount or they will be proscecuted. Does anyone have experience of dealing with fraud investigations and could tell me whether it is possible to avoid the penalty without being prosecuted.

Did this person claim incapacity benefit since he suffers from depression? If he has not he should do so, and get a backdated medical certificate. He would also need to get round the personal capability assesment, but if he did, then after 364 days incapacity he would qualify for the disability premium. He would be entitled to claim HB on that basis and the overpayment might be reduced. He might then be offered a reduced admin penalty (ie 30% of the re-assessed overpayment)

If there is no diability premium, then I would see the depression argument as a non starter.

He should see a solicitor specialising in criminal law regarding the admin penalty. He really has two choices, either refuse the admin penalty and effectively call the fraud sections bluff (they wont prosecute a case that does not have enough evidence) or accept the penalty.

Sam:
As a fraud investigator my thoughts are as follows;

There are statutory conditions to administrative penalties (see Social Security Administration (Fraud) Act 97 section 115A
1) Overpayment has to be due to an act or omission
2) There must be grounds for prosecution

Additionally an IUC must have been conducted to establish that an offence has been commited.

Regarding Stainsby's point about calling their bluff this may work but they should have grounds to take criminal proceedings if the adpen is refused, if they have enough evidence for an adpen they should have enough evidence to go to court.


You mentioned your client has depression, is this known by the LA? Was this raised at IUC? In our LA we would certainly take that into consideration in any saction that is offered.

Hope this helps.

Thank you for your replies. To respond to your questions:
Firstly, the client has not claimed Income Support or Incapacity Benefit due to his depression. The added complication is that he has a student Loan and has about £84 aweek income from this.

Secondly, the local authority are aware of his depression. I am attending a meeting with the Fraud investigation team on 10th August and wondered whether it was possible to prevent the administration penalty on the ground of depression. I also wondered what would happen if he was prosecuted in terms of costs and fines.

I would suspect that the LA fraud team would need written confirmation of the medical conditions you describe. This would raise two issues, the first being the state of mind of the claimant during the period of the fraud, and the second that of the suitability for prosecution / Admin Penalty. This is similar to the thoughts of not prosecuting pensioners (on many occasions, they are not pensioners when the fraud begins). A senior officer would then decide on whether to offer an Admin Penalty or not. Each case will be based on its merits, and I would hope that ALL factors are considered when making that decision.

If the claimant is prosecuted then it would down to the court to decide on sentence and costs. I think most prosecutors in these cases will ask the court for an amount of costs (normally nothing even close to the real cost). The actual limits on the fines depends on the offences the claimant is being charged with. You could put the same case before three different courts and get three completely different sentences.

I note your second sentence - do all Fraud Investigators work on the basis of a similar presumption of guilt? Or was this just careless syntax?

Further, to Sam, I would suggest that you need to put your client in touch with a solicitor able to deal with the criminal matter as soon as possible. It would help if you could find a practice that had some experience of criminal law.

In my experience, both LA and DWP fraud departments often use the threat of a penalty/admin charge as a legalised form of extortion. Many claimants without recourse/access to proper advice do "fold" due to the fact that accepting the charge will avoid criminal prosecution - and they are in no position to know the strength of the case against them. Both the DWP and LA fraud sections are often operating to "targets"/"office bonuses" for the amount they recover - a definite incentive to "chance their arm" in the hope a claimant will accept a penalty without a fight.

It saddens me to see comments such as "legalised form of extortion" and "operating to targets/office bonuses".

As fraud investigators we are charged with investigating alleged criminal behaviour, in my LA most of these turn out to groundless but there are those who have committed fraud and we have a range of sanctions that can be applied.

We do not threaten or extort! If the evidence is sufficient and taking into account all the factors of the case then the most appropiate sanction for the situation is used.

May I also stress that any evidence has to be able to stand up in a court of law, and this certainly impacts on the way we conduct our investigations and sanction activity.

It saddens me even more that I actually see these things happen. You'll note my use of the word "often" that qualified both statements. Clearly, the situation is different in different parts of the country - and even in the area that I work, I didn't suggest that all fraud investigators operate to such poor standards. Many do a fine job, I'm sure.

I have seen enough cases, however, to know that the threat of an admin charge is sometimes made where there is no real evidential basis for a criminal case. I've also seen a number of cases locally where the authority appeared determined to press for an admin charge - yet were unable to produce sufficient evidence to win even the overpayment case at Tribunal.

My interest here is that of the client in this case - and I'm disturbed by the assumption of some posters that fraud has occured, when clearly the advice that is the claimant's best interest is that they seek proper legal advice on the issue.

If I got the "targets/office bonuses" thing wrong, I do apologise - are you telling me that these are a figment of my imagination?

Some LA's do use targets however thankfully the one that I am with does not. I do not think they are appropiate in fraud work.

Having read the replies to the original post I really cannot see any assumption of guilt, just advice and information to help the original poster.

Can I also make a comment about your situation regarding tribunals, obviously it is difficult talking about cases in general terms, but gaining evidence that an offence has been committed and having enough evidence to proceed to caution/adpen/proscecution is a different situation to deciding if there is an O/P under the HB regs.

What surprises me about your comments would be the attitude of the legal dept. in the LA's concerned. Are they really happy to proceed with a sanction that has not passed the evidential test?

I would also agree that anybody faced with this type of situation would be best advised to seek legal help/advice. I would!

It's encouraging to hear that you do not consider that benefit savings targets are appropriate in fraud work. Unfortunately, they have played a significant role in the DWP's approach to fraud, which in my view, has locked social security into a vicious circle, which is devastating to the concept of social justice.

i cannot say that i have seen evidence of extortion in the issue of admin. penalties - i see a fair few clients called for IUC, but very few of those cases are suitable for prosecution.

i hear many accounts of threats and intimidation and misrepresentation of the law, which some people would call lying, which I have reason to believe takes place. eg - young woman was told she was lying about being separated from her husband and if she doesn't give her book back the investigator would expose her to the mosque. i recall a statement signed by a depressed woman admitting to living with a man who was actually in prison at the time in question (-verified). the biggest problem i have is the length of time spent trying to get benefit restored when payments have been stopped, either without a decision, or by a decision based on no evidence, or bearing no relation to the law, after fraud involvement. - i'm talking about over 12 months in some cases.

i am seeing more and more substandard decision-making which in my view demonstrates either ignorance of or a disregard for the statute or case law, and the need for decisions to be based on evidence. worrying either way. It's particularly concerning to see this happening more and more in overpayment decisions, which have been notoriously poor for an unacceptably long time, but which now appear to be divorced from any concept of the moral responsibility of the State to take some care before issuing demands for repayments of large sums of money from it's poorest citizens. eg at least that they have been actually overpaid in the first place. i've seen a couple of decisions recently where 'extortion' is not too far-fetched a word.

i expect every welfare rights adviser posting here could refer to substantial amounts of arrears obtained for claimants and put flesh on the bones of quite harrowing examples of injustice, should anyone be interested. however, there is no existing structure or resource for collecting statistics or collating evidence outside the central government departments, which in any case appear to be interested in only questions which they ask. there is no dedicated watchdog authority either for the social security, which must be convenient for somebody.

perhaps social security policy would be different if underpayments of benefit, and unclaimed benefit received as much emphasis as fraud does? whilst claims about fraud are received uncritically and based on evidence as scientific as a sunday mail editorial there is little chance of rectifying what could in fact be a seriously flawed perspective, which has an impact on every citizen, including fraud investigators. ( i don't doubt that some do their job conscientiously, just as some do it with more than unseemly enjoyment.)

whilst the DWP can't be bothered to send presenting officers to appeal hearings, and whilst the tribunals allow them to get away with putting any old rubbish in written appeal submissions, particularly those really crappy 'automated' DLA travesties, i cannot believe that the right questions are asked about the level of revised decisions, and expect only that those statistics are considered from an inward-looking and self-interested view point.

did i hear something about a ministry of justice...?

jan

I have reread my post and also cannot see anything to suggest that I have presumed guilt. I was simply answering the questions posed by the original author. I also feel that the suggestion that Administrative Penalties are extortion, is unfounded. I have never known of an "Office Bonus" situation for fraud work either. Some very strange posts in here.

I was thinking of this;

"I would suspect that the LA fraud team would need written confirmation of the medical conditions you describe. This would raise two issues, the first being the state of mind of the claimant during the period of the fraud...."

I've italicised the phrase that could be read to presume guilt.....

Once more, for the hard of reading, I didn't suggest that Admin Penalties "are extortion", nor did I suggest that all Fraud Depts/Investigators use them as such.

What I did say is that they are capable of being used as legalised extortion - and that I have seen this happen. Is anyone really suggesting that the potential confluence of unscrupulous/pressured Fraud Investigator and vulnerable claimant doesn't exist?

But, to be clear - my particular experience of poor quality LA fraud inspections is geographically limited, and that to areas where HB has been contracted out. I'd readily accept that the majority of investigators working in boroughs where HB has been kept "in-house" operate with integrity.

However, my experience of dealing with the DWP in respect of overpayments/faud investigations, is almost universally bad. I'll be brutally honest here; as a welfare rights adviser I operate with external checks - the LSC will be concerned if I pursue a case which has little or no legal merit and this could lead to potential loss of funding. But the quality of almost all overpayment decisions that I see from the local offices is such that I'm convinced that the DWP simply "fly" cases. The decision may have absolutely no legal merit - but if only a small percentage of claimants don't appeal/cannot access legal help, the Department still comes out ahead......

I can see why you have understood my reply in that way. However, the LA would surely not be considering the case for prosecution if they did not feel it was 'fraud'. I'm sorry to hear of your bad experiences with certain LA fraud investigators, I just hope you realise that the posts made on here, are made in good faith, and in response to requests for help.

I think it's very refreshing to see investigation and other officers contributing to the site and offering responses in good faith; it's always useful to see 'the other side' and their point of view. I also think that almost by definition if an officer working for a local authority / DWP / IR is looking at this side then they are going to be a reasonable, balanced, intelligent and open-minded individual.

BUT, this site is, to cut and paste from 'About Rightsnet',

"rightsnet is

a service for advice workers
subscription free
managed by lasa - the london advice service alliance - a member of advice uk
staffed by shawn mach
supported by the Legal Services Commission and the Association of London Government
funded by the National Lottery Charities Board and the Community Fund between 1998 and 2003. "

So, although it's very nice to hear from you, you should appreciate that this site is for advice workers, it is for 'the other side' from you, and unfortunately every advice worker has experience of officers working for statutory bodies who are unreasonable, unbalanced, unintelligent and so close-minded as to be unbelievable. It is absolutely unreasonable for us to tar you with the same brush, but that may explain the 'strange posts' on this thread. I am glad that they seem strange to you, because you probably do your job properly within carefully and reasonably set parameters without pressure and taking all of the circumstances of your interviewees into account. I do hope that the 'strange posts' on this thread only tighten your resolve to continue to work in that way, and do not lead you tar any advice worker you deal with with a negative brush.

Fair enough and as I've said previously - none of what I posted was intended as an attack on the integrity of individuals who post on this site.

However, whilst I can accept that one would expect LA's not to consider prosecution if they did not feel they had a good case, my particular experience doesn't marry with that entirely.

I've had three cases in the last year and a half where, in consultation with the claimant's solicitor, we've suggested the client that the Admin Penalty be refused. In each instance the fraud case was dropped. Further, at Tribunal each "overpayment" was found to be non-recoverable. I can't say with absolute certainty that the intent was "extortion", of course not. But when I repeatedly see a standard of decision making and attention to evidence that can at best be described as cavalier, I tend to get a little cynical.

And I'm not the only one. As mentioned previously, I work in an geographical area where there are particular problems - BFI reports have been especially damning, to the extent that the LA heavily censored even the versions of the reports intended for internal circulation!

Clearly, not everywhere has the same problems. But, as the post prior to mine indicated - we are here as claimants' advocates, "we" being the majority of posters, the people who the forum was designed for. And an adviser should not be the one negotiating with the fraud department, an adviser should not be looking, as in the present case, for such mitigating circumstances as depression. A fraud prosecution carries the possibility of jail time - the proper person to advise a claimant in such circumstances is a solicitor. And I'd suggest that any fraud department or fraud investigator genuinely acting in "good faith" should, at minimum, advise the claimant of the same.

"A fraud prosecution carries the possibility of jail time - the proper person to advise a claimant in such circumstances is a solicitor. And I'd suggest that any fraud department or fraud investigator genuinely acting in "good faith" should, at minimum, advise the claimant of the same."

You are correct in what you say - as part of the PACE preamble to an IUC the claimant is asked if they want legal representation amd given handouts explaining this. We have had IUC's where although the individual concerned said they were happy to proceed without legal representation, we did not feel that they fully understood the ramifications of their situation and so suspended IUC and pointed them in the direction of the CAB for a some assistance.

It is in the interests of the Investigator that everything is done properly as well the claimant.

If the LA's you mention are not informing individuals of their legal rights prior IUC then you have a strong case for the whole thing to be thrown out under PACE.

I do not feel that my integrity has been attacked - hopefully by being on this forum those of us who work out of the advice field can give an insight from the other side of the fence and even perhaps give some advice...which is where we came in I think!!!!!!!!!

Damn that hand-typed vb code - and the inability to edit our posts.....I'll see if I can cut down on the italics this time

Andrew, I wasn't suggesting that anyone on here (or even my LA, despite my other misgivings) would fail to uphold their obligations under PACE.

Really, I was talking about the case in hand - and referring to the fact that, other than Stainsby's post, there hadn't really been enough emphasis (imo, obviously) in stressing that the client should get proper legal advice.

I understand that everyone was trying to be helpful to Sam - but, imo, unless legally qualified, s/he shouldn't really be negotiating with the LA's fraud dept in respect of the criminal matter - at least not before getting a qualified (and independent) opinion on whether there is a case to answer. That, in my view, is the best advice - for both the claimant and Sam.

it is self evident why welfare rights advisers post here, but it is not evident why fraud investigators do. nevertheless, i am happy to accept that Ian and Peter post here in good faith. no-one is obliged to explain their reasons for posting here, and the reasons for the frisson of suspicion or distrust aroused by the 'Fraud Investigator' designation has emerged clearly and understandably in this thread. As Andrew Fisher's post suggested, reasonable people are able to get beyond labels. I have no desire to attack anyone's personal integrity either, but critical scrutiny of the 'fraud' model of social security seems to me to be entirely appropriate in this forum.

your evidence of the abuse of power in admin. penalty cases is simultaneously shocking and not surprising. with a social justice/human rights model, you might have somewhere to direct it to.

as you point out, experiences differ. few of my clients are suitable cases for prosecution, but i have had several left in administrative limbo land which coincides with 'fraud' involvement. in reality, a case becomes a fraud case when it accepted for investigation by a fraud officer, not the admin penalty stage - ie at a stage when a question of entitlement arises. I don't criticize officials for the use of short-hand language in a busy work environment - but i do question the implications of the use of language, and whether appropriate risk assessments of procedures have been carried out. I do criticize the use of highly speculative fraud savings figures joined to non-fraud (Mistakes) overpayment cases by the DWP at Departmental level where there is no excuse for sloppy use of language or misleading or self-perpetuating rhetoric.
All cases interviewed under caution are potential prosecution cases - that is the point of the IUC. But not all people IUC'd have committed fraud, and at the stage of being called for interview, they have not been confronted with evidence, nor asked for their explanation.
Some people are wholly innocent of any wrong-doing, and some have made a mistake in claiming benefit, in good faith. I have exerience of cases where, because a 'fraud' interview is being conducted, their account is not received other than in 'you have committed an offence' sceptical blindness, even when the information given by the 'suspect' places them on the right side of the law. Clients who have made 'mistakes', with no fraudulent intent whatsoever are made to feel like criminals, though no prosecution ensues, and they then have major problems with their benefits which are unexplained. For example, why did a man who was able to prove by probate documents and production of his late father's will, that the inherited property in his name was held in trust for his 2 half-brothers until they reached their majority, subsequently get council tax overpayment decisions, court summonses and bailiffs, not to mention the implication that he was robbing his little brothers of rent monies, which he was able to disprove by production of assiduously regular money transfers, and why did he have to appeal (never to get to the tribunal) and why did it take well over 6 months to sort out his benefit? why do decision-makers give decisions on unsatisfactory evidence following 'fraud' involvement when officially there is supposed to be a separation of investigative and decision-making powers? Does the question 'Is this the right way for citizens to be treated by public servants arise at all in the 'fraud' model?

The use of the word 'extortion' has also cropped up. I will try to be brief. : ) What word would be considered appropriate for the awarding of low rate care DLA when higher care and mobility allowance is appropriate? This may seem to be a diversion but i believe it is not unrelated to the pernicious nature of the failings of the 'fraud' model of social security. There does not seem to be any vocabulary for it in the context of the current model, but if it is systemic, i think there should be.

Finally, i would not be surprised if my posts are strange. I am a strange person. : ) i have no problem with trying to make my meanings clearer if anyone asks.

jan

gosh! Andrew Hiscock. i've just realized you're one of them too, and my last post could have sounded like i didn't think you posted in good faith. i didn't intend that and i apologize. i include anybody else i missed out too. sorry!

jan

How did all these 2004 "replies" get added to this query?

hi -

it's actually the other way around .... some weirdness with the forum means that, on occasion, if we delete a message from a thread (which happened over the weekend) the top message in the thread then gets dated with the date the message was removed ...

so, in this case, someone posted on sunday to a thread from 2004 and, with their message having been removed, the top message has got stuck with sunday's date, whist the rest are (correctly) dated 2004

apologies for any confusion

cheers -shawn

Tue 28-Oct-08 08:57 AM by pipkin

Just a quick point to add... Leaving behind the present arguments..

I had a client many years ago, when she was referred to me, she was one month away from a Court date regarding an Income Support fraud overpayment of over £5000, (so had an admin penalty been given this owuld have amounted to £1500ish at 30%)...

She had a local firm of criminal specialist solicitors helping her.. It transpired that she had some sort of mitigating cisrcumstances why she had comitted fraud.. I tried to contact the Solicitors to no avail, they never responded to my emails, letters etc..

The day before Court, I wrote a letter to the Court providing my clients circumstances, a financial statement, and asked them to show leniency due to her financial problems..

She told me after she had attended Court, that she had given my letter to the Solicitor and this was really the only thing he used in Court...

She received a £75 Fine payable at £1 per week...!!!!!

So, do send your client on to a firm of Solicitors but I would also write a letter of support to the Court (via the Solicitor)...

Hi,

I am a fully trained fraud manager so I may be able to help you here.


1st what date was the overpayment raised?

2 What date was your client interviewed under caution.

3 who are the investigating body ie dwp or LA


Kathy