It is important that if you do receive notification that you are to be investigated or charged with an offence of benefit fraud that you do contact our office for advice as soon as possible.
Negotiations with the DWP may lead to an alternative disposal of the case rather than being prosecuted and receiving a criminal record which can often have serious consequences for future employment.
The DWP has the following alternatives to enforcement action available in cases of benefit fraud:
- administrative penalty
- administrative caution
- civil penalty
What is an administrative penalty?
This is an alternative to a criminal prosecution.
DWP administrative penalties can be offered by law to a person as an alternative to prosecution where an overpayment of benefit has occurred due to an act or omission by that person and there are grounds for instituting proceedings for an offence against that person.
The amount of the administrative penalty for offences is set at 50% of the overpayment(s) relating to that offence subject to a minimum of £350 and a maximum of £5,000.
The administrative penalty is payable in addition to any recoverable overpayment.
It is DWP policy to offer administrative penalties where the case is deemed not to be so serious that prosecution should be considered in the first instance.
The offer of an administrative penalty will generally be made as an alternative to referring cases to the relevant bodies for the consideration of criminal proceedings. No admission of guilt is required from the individual concerned before offering an administrative penalty, although there is a statutory requirement for investigators to ensure that there are grounds for instituting criminal proceedings for an offence and that the individual is provided with a written notice concerning the offer of the penalty and its operation.
The individual has the option to accept the administrative penalty and a period of 14 days to reconsider their decision.
It is important to note that a civil action can be taken if there is a failure to repay the administrative penalty and debt.
The DWP has ceased offering administrative cautions for offences committed wholly on or after 1 April 2012. Instead, consideration is given to offering an administrative penalty.
However, in exceptional cases where the CPS decides that a caution is suitable, the DWP may administer an administrative caution.
A £50 penalty may be imposed where an individual incurs an overpayment as a result of their negligence in failing to provide accurate information as part of their benefit claim or in connection with an award of benefit, and have not taken reasonable steps to correct the error.
A £50 penalty can also be imposed where an individual fails, without reasonable excuse, to notify a change of circumstances or provide required information in connection with a claim or award of benefit, and that failure results in an overpayment of benefit.
A civil penalty cannot be imposed if the individual has already been charged with an offence or cautioned, or accepted an administrative penalty, in respect of the overpayment.
The civil penalty will be added to any recoverable overpayment and recovered in the same way.
Why you need legal assistance
At Stephensons we have recently successfully provided assistance to clients which has resulted in the avoidance of a prosecution even when the client has been charged with the offence and appeared at court for their first appearance.
As stated above it is important to seek legal advice at the earliest opportunity in order for the solicitor to consider whether the above options are available.
If you are being investigated for a benefit fraud then please contact our team on 01616 966 229.
By Faye Dutson, executive fee earner in the criminal litigation team