Obtaining by deception - benefit fraud

Title: Theft

Offence: Obtaining by deception - benefit fraud

Legislation: S15 Theft Act 1968

Commencement Date:

Mode of Trial: Either way

Statutory Limitations & Maximum Penalty: 10 years

Sentencing Range:

Culpability & Harm

• Offending carried out over a long period
• Offender acting with others
• Planning
• Motivated by greed or desire to live beyond his orher means
• False identities or details
• False or forged documents
• Official documents altered or falsified.

Aggravating & Mitigating Factors

1. a guilty plea;
2. the amount involved and the length of time over which the defalcations were persisted in (bearing in mind that a large total may in fact represent a very small amount weekly);
3. the circumstances in which the offence began (e.g. there is a plain difference between a legitimate claim which becomes false owing to a change of situation and on the other hand a claim which is false from the very beginning);
4. the use to which the money is put (the provision of household necessities is more venial than spending the money on unnecessary luxury);
5. previous character;
6. matters special to the offender, such as illness, disability, family difficulties, etc;
7. any voluntary repayment of the amounts overpaid.

Relevant Sentencing Guidelines (If Any)

R v Stewart and Others [1987] 9 Cr.App.R.(S.) 135 B6-33F01
Professional fraudsters who target the benefit system who operate carefully organised frauds on a large scale in which considerable sums of money are obtained, often by means of frequent changes of name or address or of forged or stolen documents. The length of the custodial sentence will depend in the first instance on the scope of the fraud. 2 years imprisonment and upwards.

Others cases consider:

1. a guilty plea;
2. the amount involved and the length of time over which the defalcations were persisted in (bearing in mind that a large total may in fact represent a very small amount weekly);
3. the circumstances in which the offence began (e.g. there is a plain difference between a legitimate claim which becomes false owing to a change of situation and on the other hand a claim which is false from the very beginning);
4. the use to which the money is put (the provision of household necessities is more venial than spending the money on unnecessary luxury);
5. previous character;
6. matters special to the offender, such as illness, disability, family difficulties, etc;
7. any voluntary repayment of the amounts overpaid.

If immediate imprisonment is necessary, a short term of up to about nine or 12 months will usually be sufficient in a contested case where the overpayment is less than, say £10,000. [inflation £20K].

R v Graham, R v Whatley [2005] 1 Cr.App.R.(S.) 110 B6-33F13
Graham pleaded guilty to 10 offences of benefit fraud, and asked the court to take a further 471 offences into consideration and was committed for sentence 2 years. During a ten year period the defendant obtained £50K. Whatley convicted on 13 counts of benefit fraud Obtained £90K from claiming whilst working. 30 months.

1. If Stewart is to continue to apply, the figure of £10,000 should be updated for inflation.
2. There will be cases in which a sentence should properly reflect an element of deterrence.
3. The decisions to which we have been referred are broadly consistent with Stewart. In Armour and Sherlock, Newman J suggested that the increasing prevalence of such offences had led to a more serious view of such offences being taken by the courts, but the heavier sentences that have been imposed in some cases are readily explicable by reference to aggravating features and to an element of deterrence.
4. In the light of our conclusion at 3 and taking account of the guidelines for comparable offences and of the decisions of the Court in Kefford and Mills, we do not consider that the Stewart guidelines require a revision, save in relation to the effect of inflation.
5. Accordingly, we consider that where imprisonment is necessary, short terms of up to about nine to 12 months will usually be sufficient in a contested case where the over payment is less than £20,000.

Aggravating features:

1. obtaining of large sums,
2. frauds persisted in over length periods,
3. claims for benefit that are fraudulent from their inception,
4. sophisticated fraud involving the use of false and/or multiple identities,
5. the maintenance of an extravagant lifestyle over the periods in question.

Relevant Sentencing Case Law

R v Stewart and Others [1987] 9 Cr.App.R.(S.) 135 B6-33F01
Professional fraudsters who target the benefit system who operate carefully organised frauds on a large scale in which considerable sums of money are obtained, often by means of frequent changes of name or address or of forged or stolen documents. The length of the custodial sentence will depend in the first instance on the scope of the fraud. 2 years imprisonment and upwards.

Others cases consider:

1. a guilty plea;
2. the amount involved and the length of time over which the defalcations were persisted in (bearing in mind that a large total may in fact represent a very small amount weekly);
3. the circumstances in which the offence began (e.g. there is a plain difference between a legitimate claim which becomes false owing to a change of situation and on the other hand a claim which is false from the very beginning);
4. the use to which the money is put (the provision of household necessities is more venial than spending the money on unnecessary luxury);
5. previous character;
6. matters special to the offender, such as illness, disability, family difficulties, etc;
7. any voluntary repayment of the amounts overpaid.

If immediate imprisonment is necessary, a short term of up to about nine or 12 months will usually be sufficient in a contested case where the overpayment is less than, say £10,000. [inflation £20K].

R v Graham, R v Whatley [2005] 1 Cr.App.R.(S.) 110 B6-33F13
Graham pleaded guilty to 10 offences of benefit fraud, and asked the court to take a further 471 offences into consideration and was committed for sentence 2 years. During a ten year period the defendant obtained £50K. Whatley convicted on 13 counts of benefit fraud Obtained £90K from claiming whilst working. 30 months.

1. If Stewart is to continue to apply, the figure of £10,000 should be updated for inflation.
2. There will be cases in which a sentence should properly reflect an element of deterrence.
3. The decisions to which we have been referred are broadly consistent with Stewart. In Armour and Sherlock, Newman J suggested that the increasing prevalence of such offences had led to a more serious view of such offences being taken by the courts, but the heavier sentences that have been imposed in some cases are readily explicable by reference to aggravating features and to an element of deterrence.
4. In the light of our conclusion at 3 and taking account of the guidelines for comparable offences and of the decisions of the Court in Kefford and Mills, we do not consider that the Stewart guidelines require a revision, save in relation to the effect of inflation.
5. Accordingly, we consider that where imprisonment is necessary, short terms of up to about nine to 12 months will usually be sufficient in a contested case where the over payment is less than £20,000.

Aggravating features:

1. obtaining of large sums,
2. frauds persisted in over lengthY periods,
3. claims for benefit that are fraudulent from their inception,
4. sophisticated fraud involving the use of false and/or multiple identities,
5. the maintenance of an extravagant lifestyle over the periods in question. Large scale/sophisticated fraud.

R v Nwoga and others [1997] 2 Cr. App. R. (S.) 1 B6-33F17
Pleaded guilty to conspiracy to defraud. The defendants obtained £300K over a 21 month period using details obtained from the DSS computer. Well organised, carefully prepared and carefully executed plot, to secure very large sums of money. It was designed to plunder this country's benefit system. Tariff 3 - 4 years on a plea, 6 years on a fight.

R v Adewuyi [1997] 1 Cr.App.R.(S.) 254 B6-33F16
Convicted of 10 offences of theft and five of obtaining services by deception. The defendant obtained £100K over a ten year period using different names. 4 years.

R v Armour and Sherlock [1997] 2 Cr.App.R.(S.) 240 B6-33F19
Pleaded guilty to conspiring to obtaining by deception. The defendants were involved in a consiparcy using stolen benefit books and obtained £1300 and £800. Increasing prevalence of this type of offence and a degree of organization. 18 months.

Cheryl Eleanor Evans [2000] 1 Cr.App.R.(S.) 144
Pleaded guilty to four counts on an indictment containing 24 counts and was convicted on the remaining counts. The defendant claimed housing benefit in respect of premises where she lived, when in fact the house was the property of the local council. Claims were also made in false names, supported by false details of a fictitious landlord, in respect of several further addresses. 2 years.

Others:

R v Olusoji [1994] 15 Cr.App.R.(S.) 356 B6-33F14
Pleaded guilty to six counts of obtaining by deception. The defendant obtained student grants from various local authorities by using false identities supported by false documents. He employed 29 different aliases, obtained a total of about £20,700, and attempted to obtain a further £50,000 to finance a gambling habit. 3 years.

R v Weild [1994] 15 Cr.App.R.(S.) 685
Pleaded guilty to eight counts of obtaining by deception and asked for 283 similar offences to be taken into consideration. The defendant obtained £15K by not disclosing assets and cohabitating and working. 15 months.

R  v Oyediran [1997] 2 Cr.App.R.(S.) 277
Pleaded guilty to five counts of false accounting and asked for 68 similar offences to be taken into consideration. The defendant obtained £18K over a 3 year period without disclosing a student grant and employment. 18 months.

R v Ellison [1998] 2 Cr.App.R.(S.) 382
Pleaded guilty to five counts of obtaining by deception and asked for 88 other offences to be taken into consideration. Overpaid £10K over a period of years claiming whilst working. 10 months.

R v Bendris [2000] 2 Cr.App.R.(S.) 183
Pleaded guilty to conspiracy and to obtaining by deception. Over a four year period the defendant received £10K by claiming in false names. False passports used. 10 months.

R v Hale [2002] 1 Cr.App.R.(S.) 49 (at 205); [2001] EWCA Crim. 1329
Pleaded guilty to 11 counts of obtaining property by deception and one count of theft. He asked for 68 offences to be taken into consideration. The defendant worked at a care home and encashed pension books belonging to former residents to finance his drug habit. Breach of trust. 2 years.

Ancillary Orders:

Restitution
Compensation

Consider Also:

POCA
Financial Reporting Order S15 SOCA 2005

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