Is anyone aware of whether there is a time limit for initiating prosecution proceedings in cases of HB fraud. I have a case where the 30% penalty is being imposed but I feel the circumstances don't warrant it. There was a failure to disclose but I dont feel there was intent to defraud.

I am not quite sure what you are asking regarding time limits. To the best of my knowledge, a person who agrees to pay a penalty is immune from prosecution for any offence which is related to that particular overpayment. Is your client appealing the alleged overpayment? If the o/p turns out not to be recoverable then the penalty should be repaid.

I'm going for late appeal on her case but I'm concerned at the actual imposition of a penalty in the first place and exploring all possibilities.

The case concerns a woman with no prior experience of benefits until seperation from her husband. She started part time work and claimed CTB but didn't inform when her wage went up. She says that she assumed CTB was reassessed yearly like tax credits. I do feel that its a straight case of not knowing and is not intent to defraud.

However our LA are taking the course of imposing a 30% penalty. They say the circumstances support it as they feel secure of a prosecution.

I know shes immune from prosecution if she agrees to the 30% but I always assumed, naively I suppose, that the penalty was being used on clear cut cases of fraud and not for cases like this which present only as a failure to disclose.

Am I right in thinking that any 30% reverts to the council coffers. What client, fraud or not, is not going to opt for the 30% when told they could be taken to court for fraud and end up with a criminal record.

If your client has agreed to the penalty, there is a 28-day cooling-off period in which to withdraw their agreement. However if they do that then it is quite likely that the authority will prosecute. If they offered a penalty it should be because they think they have a strong case - assuming they are using this provision correctly. (I cannot say for definite that they aren't bluffing but it's best not to assume they are!)

I thought you may want to be aware of that if you were not already.

To answer your original question. There is a time limit of 6 months from the date of the offence for minor criminal offences. But as far as I'm aware for criminal offences generally there are no time limits.

But proceedings must be brought within a reasonable time both for the purposes of the common law and article 6 of the Human Rights Act.

CPAG page 1108 says the time limit for beginning prosecution for false representation is the later of
- three months from the date DWP, HMRC or the LA have enough evidence to back prosecution; or
- twelve months from the date of the offence.

But there doesn't appear to be a time limit for the more serious offence of dishonest representations.

The law of limitation as applied to criminal proceedings is best thought about in the following way. Criminal proceedings are brought in the name of the crown because they involve a breach of the sovereign’s peace. It is a principle of constitutional law that lapse of time does not constrain the right of the sovereign; therefore time limits do not apply to criminal proceedings.

Certain offences, such as in the example Gerry gives, may be excluded from the above by Parliament.

don't know if this is of interest to anyone.



http://www.parliament.the-stationery-office.co.uk/pa/cm199697/cmhansrd/vo970204/debtext/70204-09.htm

Hi Jan

That's very interesting. I was thinking about that last night (sad bugger that I am). Section 116 of the Admin Act (bringing charges within 3 or 12 months) would only apply where the charge was obtaining benefit by false representation.

It would have no application wher charges were brought under the Theft Act or where the charge was conspiracy to defraud. Ultimately the DWP or an LA has these other options as fall back positions, subject, however, to the caveats I mentioned earlier.

Regards
Paul

It depends under which section of the SSA Act 1992 the charge is being brought.
112A under SSA 1992 refers to a summary offence tried at a magistrates court. Unlike 111A, this section does not require the council to show that the claimant acted dishonestly in failing to notify a change of circumstances, only that a claimant had failed in their duty to do so. This charge is , therefore, a lot easier to bring against a claimant.
If the claimant is being charged under this then proceedings should be started within 6 months of the nature of the offence being known and the identity of the defendent being known. For example, if a claimants benefit was stopped at the end of July 2004 but the case was not brought to court until Feb 05, then the time limit of 6 months would have expired and the case would be thrown out.
In this case it would be in the claimants interest not to pay the penalty and go to court.

the original policy intention was not to prosecute people for making mistakes in their claims. social security is immensly complex in some areas, and even officials get it wrong.

see following extract from the handard link -

"As I explained to the Committee, it is not the intention that failures to notify caused by a genuine mistake should be treated as cases of fraud and prosecuted. In a case where a person is genuinely unaware of the relevance of a change of circumstances, the intention is that the safeguard of "reasonable excuse" would apply, and that, ultimately, the courts would decide what that constituted. Additionally, the legislation would operate within the framework of the Department's prosecution policy, which is to prosecute only where prosecutions are clearly in the public interest.

We therefore believe that the defence of "reasonable excuse" provides all the safeguards needed, should proceedings be brought. Nevertheless, concerns were expressed in Committee, especially by the hon. Member for Southampton, Itchen (Mr. Denham), about the scope of the offence, particularly where it could be the underlying alleged offence for an offer of an administrative penalty under clause 15.

In practice, we would not expect a prosecution or an administrative penalty offer in a case where the claimant genuinely did not know that a change of circumstances needed to be reported. However, having reflected on the points made in Committee, the Government consider that it would increase confidence in the prosecution and penalty arrangements if the offence were amended to underline the policy intention. "
___________________________________________

the wording of sec. 112 relates to false representation for the purpose of obtaining benefit, and 112 (1A) brings in acts of omission as well as commission, but the wording in the creation of the offence requires that the claimant knows his benefit entitlement is affected by a change of circumstances. since an authority is bringing criminal proceedings against the claimant, and the burden of proof is on the prosecution, beyond reasonable doubt, in my view, more is required of the authority to establish knowledge, and intention, than ignoring whatever the claimant says, and deciding that he had knowledge because he was issued with a leaflet...

interestingly, the 2001 amendments link the change of circs to claimant's knowledge, not duties under the regulations - see following extract from the explanatory notes ( link below). semitone might also want to consider the authority's prosecution policy. bearing in mind that overpayments are recoverable, so the loss to the public purse can be recovered, what makes prosecution in his case 'clearly in the public interest', i wonder?
___________________________________________________
Explanatory notes - extract
176. The 1997 Act sought to remedy this situation by adding offences of omission to the existing offences of commission. The new approach was to make it an offence in section 111A to fail to notify a change of circumstances which regulations under the Social Security Administration Act 1992 required the person to notify. The same form of wording was also used in defining the summary offence in section 112(1A). Unfortunately, problems were identified with this approach. It proved an impossible task to draft regulations which set out the various changes in circumstances which would inevitably affect any individual's entitlement to any given benefit. This Act provides the first opportunity to revisit the primary powers in order to secure the original policy intention.


177. The proposed changes restructure the provision so that the offences are defined in terms of changes that a person knows will affect entitlement to benefit, rather than to changes that regulations require him to report. As increasing numbers of beneficiaries opt to receive payment of social security benefits through ACT, the need for this change has become greater.


http://www.opsi.gov.uk/acts/en2001/2001en11.htm#end

I have looked the 30% penalty provision, and it is clear that the 'qualifying' conditions for this are that the o/p is recoverable, attributable to the claimant, AND that there are grounds for instituting proceedings for or ANY other o/p offence.

What I haven't yet discovered is whether or not the '30% penalty'counts as being a criminal record. You will still have committed an offence, and perhaps it's treated much like a police caution, ie diverted away from the Courts themselves, but still appears on your record. Well that's fine if you accept that you have committed a crime and it may well be a cheaper way of sorting it out. However, from what I gather it is not entirely clear that a crime has been committed, OK so it's a bit of a gamble, but if truly innocent no one should sign up for a 30% penalty, and have a potential criminal record by default. (No doubt even if not on a criminal record as such, it will certainly be on a departmental one.) Furthermore, there are so many jobs etc these days which require CRO checks OR more importantly ask on the application form about dishonesty but not necessarily as a result of a court appearance. It is another criminal offence to answer such questions dishonestly and thus it is important to consider the wider issues before accepting what appears to be the easy option now.

Please also note that whether by act or ommission s111A offences require dishonesty to be proven- and this will have to be done to beyond reasonable doubt, which is a very high standard indeed, and of course much higher than the normal balance of probabilities we are more used to, equating to some 51%; BRD is not a mathematical quantity, but if it was it would have to be around 90%proof, if not more. 'Dishonesty' is usually measured by the standards of ordinary people, and would be for the jury/Magistrates to decide. Unless the Prosecution (DWP) can reach this high standard on all matters, bearing in mind as well that the admissibility of evidence is much more strict in a criminal court, then the case will fail.

I'm not sure if you have had the full details of the case against your client. Since there has to 'grounds for instituting proceedings for any offence' there probably is in the LA's view at least a reasonable case. Should you not be entitled to ask for a copy of the papers before you or pass to criminal lawyer - is it not a breach of natural justice not to know before agreeing? Certainly if a prosecution is taken out then you would be entitled to full advanced disclosure of the case.
Also check the time limits carefully, since if out of time, no prosecution should occur.

Obviously I can not advise you on the merits of taking your chances in the courts versus accepting the penalty, but as per above the latter course of action needs to be thought out very carefully, and a criminal lawyer may be required. (Legal aid may be available anyway.)

Cablou