Thanks for that. After I last posted I found some legislation. S15 SSA (Fraud) Act 1997, which inserted S115A into SSAA 1992. Sub Section (2) refers to a written notice "stating that he may be invited to agree to pay a penalty..... no such proceedings will be instituted against him". Sub (4) says that if the person "agrees in the specified manner to pay the penalty.........(b) no proceedings will be instituted against him for an offence (under this Act or any other enactment) relating to the overpayment".
The "specified manner" seems to be SI 1997/2813, which just states what the notice is to contain.
The bits I’ve quoted seem to me to mean that by agreeing to pay the penalty, whether or not it is actually paid, he becomes immune from prosecution in relation to the overpayment. But it does not give any immunity in relation to the penalty if that is not paid. You say non-payment would normally result in prosecution – presumably only in relation to the penalty? Does that mean that somewhere in the legislation it is specified that the penalty is a criminal sanction so that non-payment of it can result in prosecution? Otherwise it would seem to be a civil matter with recourse only to the County Court.
If I’ve got the above right, the penalty is a fine of a kind which would not be written off in bankruptcy. If it is, then the bankrupt would have to go on paying it, but not the overpayment which gave rise to it. For my client, this seems to be the best solution - he pays the penalty but the overpayment gets written off in the bankruptcy & he is immune from prosecution. Am I being too optimistic?
Any views or comments gratefully received.
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