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Legal Guidance on Prosecuting Welfare, Rural and Health Division Cases

Welfare, Rural and Health Division

The Welfare, Rural and Health Division (WRHD) of the CPS prosecutes cases investigated by the Department for Work and Pensions (DWP), Her Majesty's Revenue and Customs (HMRC), the Department for the Environment, Farming and Rural Affairs (DEFRA), the Medicines and Healthcare Regulatory Agency (MHRA), the Department of Health (DoH) and some Local Authorities.

Welfare, Rural and Health Division units are located in Leeds, Liverpool, Birmingham, Cardiff and London.

Most Welfare, Rural and Health Division (WRHD) cases are prosecuted in mainstream CPS magistrates' court lists by CPS prosecutors.

The respective roles of the CPS, DWP and DoH investigators are set out in Memorandum of Understanding between the CPS and each respective Department.

Benefit Fraud

Section 128 of the Welfare Reform Act 2012 (WRA) permits the Secretary of State for Work and Pensions and persons providing services to the Secretary of State to disclose social security information to the Director for Public Prosecutions (DPP) for the purpose of the functions exercised by the DPP.

Section 129 WRA 2012 prescribes the use that can be made of social security (including tax credit) information disclosed by the Secretary of State under section 128 and creates an indictable offence of wrongful disclosure. CPS prosecutors disclosing social security information in accordance with the DPP's functions and CPS policies will incur no liability.

Information given to the court is reportable in the usual way.

Department for Work and Pensions Fraud Investigation Service (FIS), Local Authority (LA), HMRC and Single Fraud Investigation Service (SFIS) Investigations

There is a dual purpose to a benefit fraud investigation:

  • to enable the DWP/LA/HMRC to determine whether benefit/tax credit should have been payable in the particular case.
  • to ascertain whether a criminal offence connected with a claim to benefit /tax credit has been committed.

Social security legislation requires benefit claimants to (a) furnish information and evidence pursuant to a request from the DWP/LA and (b) to notify the DWP/LA of any change of circumstance which the claimant might reasonably be expected to know might affect the right to benefit. Separate tax credit legislation prescribes the information claimants are required to report.

The investigation should establish whether and how the claimant failed to do these things.

Disposals available to DWP FIS investigators

Once a DWP FIS investigation is complete and DWP FIS investigators have identified a potential offence, they have discretion whether to:

  • apply an Administrative Penalty under section 115A or section 115B Social Security Administration Act 1992 see Diversion from Prosecution
  • for offences committed wholly before 1st April 2012, offer a simple caution Diversion from Prosecution
  • refer the case to the CPS for a decision whether to prosecute.

The DWP enforcement (Penalty) policy (revised edition to be published shortly) applies in all DWP FIS, joint DWP/HMRC/LA investigations where DWP leads the investigation and to all SFIS investigations.

Disposals available to Local Authority investigators

Once a Local Authority (LA) benefit fraud investigation is complete and LA investigators have identified a potential offence, LA fraud investigators have discretion whether to:

  • apply an administrative penalty under section 115A or section115B SSAA 1992 see Diversion from Prosecution
  • for offences connected with housing benefit and council tax benefit see Diversion from Prosecution
  • offer a simple caution Diversion from Prosecution
  • refer the case to the CPS or to LA prosecutors for a decision whether to prosecute.

LA investigators follow the LA's local enforcement policies. Many LAs follow the DWP's enforcement (Penalty) policy but they are not bound by it. LA officers (acting as service providers for the Secretary of State and authorised under s109A SSAA 1992) in SFIS pilots apply the DWP enforcement (Penalty) policy.

Disposals available for offences connected with tax credit

The DWP's enforcement policy for tax credit offences broadly follows the DWP's enforcement (penalty) policy with the exception of administrative penalties. Neither section115A or section115B SSAA1992 apply to tax credits. If a case is not referred to the CPS, the DWP has discretion to refer a tax credit case to HMRC for HMRC's own civil penalty policy to be applied.

Referral to the CPS to consider prosecution of offences connected with benefits or tax credits

Referral to the CPS to consider prosecution is reserved for the more serious cases. CPS prosecutors take appropriate account of DWP enforcement policy when applying the public interest test.

The kinds of circumstances where a case may be referred to the CPS following a criminal investigation by DWP (FIS and SFIS), DWP and HMRC jointly and those Local Authorities following the DWP penalty policy include those where:

  • the gross total of overpaid benefits £2,000 or more
  • false identities or hijacked personal details have been used
  • false or forged documents have been used
  • official documents have been altered or falsified
  • the suspect occupied a position of trust
  • the suspect assisted or encouraged others to commit offences
  • there is evidence of premeditation or organised fraud
  • the suspect has previously been convicted of benefit fraud or received a previous administrative penalty or caution
  • the amount of the overpayment is under £2,000 but the offer of an administrative penalty or caution has either not been accepted or is inappropriate.

This list is not exhaustive, complete discretion to refer any case to independent prosecutors is reserved.

The CPS can advise on any WRHD investigations in the same way as they can advise the police.

Loss of benefit provisions

The DWP can, following a conviction for an offence connected with social security benefits or following an imposition of an administrative penalty for such offence, disallow or reduce the defendant/suspects benefit for a prescribed period under the Social Security Loss of Benefit Regulations see Loss of Benefit following Conviction

Advocates will need to be aware of these provisions in order to assist the sentencing court.

DWP Benefit appeal or prosecution which comes first?

Where the CPS is informed before the charges are laid that the claimant has made an appeal to the First-tier Appeal Tribunal against the overpayment decision, the case may be returned to the investigator to await the outcome of the appeal. The prosecutor retains discretion to prosecute the case notwithstanding the fact that there is an outstanding appeal.

Where an appeal is lodged after the commencement of criminal proceedings, the decision on how to proceed will be made by the WRHD reviewing lawyer.

In exercising their discretion the prosecutor will consider:

  • section 17 of the Social Security Administration Act 1998 (the provision deals with finality of social security decisions) and the fact that the overpayment is what it is unless or until the original overpayment decision is repealed or superseded
  • whether to ask the criminal court to consider adjourning case until the appeal is concluded
  • the key cases of Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324 and R v Wearing [2011] All ER (D) 124 which determined that both proceedings can run in tandem and disposing of the civil case should not prejudice or bind the criminal case

Offences in benefit fraud and tax credit cases

The most common frauds occur as a result of:

  1. Failure to declare true financial circumstances
e.g. employment (paid or unpaid, employed or self employed work), household income of any kind, capital (including savings, properties owned, investments, student status (including loans or grants), outgoings over declared (including rent or childcare), nursery care.
  1. Failure to declare true social, personal or family circumstances
e.g living with a partner as husband and wife, children leaving, dependants dying
  1. Disability related fraud

e.g. unreported improvement in mobility or diminished care needs (Disability Living Allowance cases), unreported improved capacity to work (Incapacity Benefit and Employment and Support Allowance cases)

  1. Identity or organised fraud

e.g. applying for national insurance numbers, benefits, payments or other financial advantage, using a false or hijacked identity and/or false identity documents in support; forgery and counterfeiting, or an organised attack or manipulation of the welfare payment system such as a cyber attack, internal or contract fraud.

CPS Charging Standard on Benefit Fraud and Tax Credit Fraud Cases

General Principles: Charging Standard

This Standard is designed to assist prosecutors in selecting the most appropriate charge, in the light of the facts that can be proved, at the earliest possible opportunity where benefit or tax credit fraud is alleged.

The standard set out below:

  • Should not be used in the final determination of any investigatory decision, such as any decision to arrest
  • Does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning or other disposals available in benefit fraud investigations
  • Does not override the principles set out in the Code for Crown Prosecutors
  • Does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest
  • Does not override the need for each case to be considered on its individual merits nor fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case

Background

The previous position, when prosecution policy was the responsibility of the DWP, was to use section 112 of the Social Security Administration Act 1992 (summary only) offences in cases where the loss to the Department was less than £20,000. Investigators no longer approach investigations with that expectation. No financial threshold for the expectation or the choice of charges is applied by investigators or by prosecutors. The approach in this Charging Standard brings the prosecution of benefit fraud into line with the prosecution of fraud generally where either way offences are the norm.

Code for Crown Prosecutors

In accordance with paragraph 6 of the Code, prosecutors will select charges which:

  • reflect the seriousness and extent of the offending supported by the evidence
  • give the court adequate powers to sentence having regard to the Sentencing Guidelines
  • give the court adequate powers to impose appropriate post conviction orders and enable the case to be presented in a clear and simple way

Public interest factors

When considering the public interest questions under the Code, it should be borne in mind that benefit and tax credit fraud is serious and costs the UK some £1.9 billion annually. Whilst there is no individual victim as such, benefit fraud has an impact on communities and taxpayers by reducing the amount of public monies available.

Selection of charges

Most benefit frauds are either committed by:

  • the provision of false information at the beginning or during a claim - a commission offence or
  • during the course of the claim by failing to notify a change of circumstances which affects entitlement to benefit - an omission offence

When considering the various offences available, it will be a matter of fact in each case, in the application of the evidential stage of the Code test, as to whether dishonesty can be proved to the required standard. Dishonesty is demonstrated applying the principles in Ghosh [1982] 1 QB 1053. As per Lord Lane C.J in that case: If a person knows that he is not telling the truth he is guilty of dishonesty. It is reasonably to be expected that there will be sufficient evidence to prove dishonesty in most benefit fraud cases.

The most commonly used either way offences are those under section 111A of the Social Security Administration Act 1992 (SSAA) or the Fraud Act 2006 (which can be used in most cases including where the alleged fraud has been detected before any benefit payments have been made). Prosecutors will also wish to consider other possible offences including those under the Theft Acts 1968 and 1978 (particularly in historic pre-Fraud Act cases), false accounting, offences under the Forgery and Counterfeiting Act 1981, money laundering and conspiracy to defraud or to cheat the Revenue - details of specific alternative offences are set out at the end of this chapter.

Where the defendant has provided false information or made false declarations or representations in his claim for benefit, it is likely that the majority of prosecutions will be brought under:

  • section 111A(1)(a) SSAA 1992 - dishonestly making a false representation to obtain benefit
  • section 111A(1)(b) SSAA 1992 - dishonestly producing or furnishing false information or documents to obtain benefit
  • section 2 of the Fraud Act 2006 - dishonestly making a false representation with intent to gain or cause loss

Where the defendant has made an initial legitimate claim for benefit but then fails to report a change which affects entitlement, it is likely that the majority of prosecutions will be brought under:

  • section 111A (1A) SSAA 1992 - dishonestly failing to notify a change in circumstances affecting entitlement to benefit; or
  • section 3 of the Fraud Act 2006 - fraud by failing to disclose information

Where tax credit fraud is alleged, the majority of prosecutions will be brought under:

  • section 35 of the Tax Credit Act 2002 - knowingly concerned in fraudulent activity undertaken with a view to obtaining payments of tax credits; or
  • section 2 or section 3 of the Fraud Act 2006

The points to prove section on prosecuting benefit and tax credit fraud offences set out the constituent elements of the most commonly used Social Security offences and cite the governing case law. The points to prove section in the Legal Guidance on Fraud set out the points to prove for Fraud Act 2006 offences. Both section 111A SSAA 1992 and the Fraud Act 2006 require the prosecution to prove that the defendant acted dishonestly.

Section 111A SSAA 1992 (either way) offence or Fraud Act 2006 offence?

Section 111A SSAA 1992 contains bespoke either way benefit fraud offences with an established body of case law. In most cases of benefit fraud, it will be usual to charge under section 111A SSAA1992 unless the facts of the case suggest that an alternative charge under the Fraud Act 2006 or other provision under the general criminal law is more appropriate.

Where S111A SSAA1992 cannot be charged

In some cases, the fraud cannot be charged under section 111A SSAA1992 because the , payments made do not fall within the section 121DA SSAA 1992 definition of payments made under relevant social security legislation; for example, Access to Work cases. Similarly, tax credits are not social security payments; tax credit fraud will usually be charged as a section 35 of the Tax Credits Act 2002 tax credit offence or as a Fraud Act 2006 offence.

Difference in maximum sentence

The maximum sentence available for Fraud Act offences tried on indictment is 10 years' imprisonment. The maximum sentence for bespoke benefit offences under section 111A SSAA 1992 is 7 years' imprisonment. Where the sentence is likely to exceed 7 years, it may be more appropriate to charge a Fraud Act 2006 offence. Separate sentencing guidelines apply to SSAA 1992 and Fraud Act 2006 offences and prosecutors may wish to draw the courts attention to that difference. Prosecutors may also need to be prepared to explain why Fraud Act 2006 offences have been selected over SSAA 1992 offences.

Additional criminal offences to consider

Whilst it remains possible to charge a false accounting offence after the introduction of SSAA 1992 and the Fraud Act 2006, it will generally be more appropriate to charge section 111A SSAA or a section 2 Fraud Act 2006 offence for dishonest false representations.

Where a forged document is presented in support of a claim for benefit or in support of an application for a National Insurance Number:

  • section 1 Forgery and Counterfeiting Act 1981 - making a false instrument
  • section 3 Forgery and Counterfeiting Act 1981 - using a false instrument
  • section 4 and section 6 Identity Documents Act 2010 - possession of false identity documents with improper intention and possession of false identity documents without reasonable excuse
  • section 25 Identiity Cards Act 2006 - possession of false identity documents

In cases of organised fraud:

Section 112 Social Security Administration Act 1992 offences

If dishonesty cannot be proved, prosecutors will go on to consider under the evidential stage of the Code Test whether there is sufficient evidence to prosecute using the section 112 SSAA 1992 summary only offences, where the standard to be applied is that the defendant acted knowingly.

"Knowledge"

Implied knowledge for the summary offences includes actual subjective knowledge proven by evidence but it may also include wilful blindness. It is always open to a tribunal of fact to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed Westminster City Council v Croyalgrange Ltd 83 Cr. App. R.155

In Flintshire CC v Reynolds [2006] EWCH 195 (Admin) it was alleged that Mrs Reynolds had knowingly produced information she knew to be false in a material particular for the purpose of obtaining a benefit or other payment or advantage. Mrs Reynolds evidence was that she signed the form completed by her husband without reading it. It was held that constructive knowledge is not enough to demonstrate that something has been done knowingly in the context of a criminal statute (in this instance section 112 SSAA 1992).

Section 111 SSAA 1992 is also a summary only offence usually used where a person, required to provide information under section 109A SSAA 1992, refuses to do so following a request for information by an Authorised Officer.

Acceptance of Pleas

Where a charge under section 111A SSAA 1992 has been preferred, the acceptance of a plea of guilty to a lesser count under section 112 SSAA 1992 will rarely be justified in the absence of a change in circumstances that could not have been foreseen at the time of charge. Such instances are expected to be confined to cases where, upon continuing review, the prosecutor no longer considers that dishonesty can be proven but is satisfied that knowledge can be proven. The Attorney Generals Guidelines on the Acceptance of Pleas and the Prosecutors Role in Sentencing Exercise apply and R v Cairns and others [2013] EWCA Crim 467 must be followed when accepting any basis of plea. Further, the principles in R v Scunthorpe Justices (ex parte M) (1998) 162 JP 635 and R v Thames Magistrates Court (ex parte Stevens) (2000) 164 JP 233 apply, including that the substitution of a new charge must be in the interests of justice.

Allocation

In making representations about appropriate venue, prosecutors will generally seek summary trial for appropriate benefit fraud cases involving sums up to £35,000. In assessing whether cases are appropriate for summary trial, prosecutors will bear in mind the determinants of seriousness and must always have regard to the non exhaustive list of aggravating and mitigating factors below.

Aggravating factors include:

  • whether the claim was fraudulent from the outset
  • whether the fraud was professionally planned
  • whether the fraud was carried out over a significant period of time
  • whether multiple frauds occurred (multiple frauds include where one false declaration or a failure to disclose a change of circumstances results in multiple payments)
  • the role played by the offender where more than one offender is involved
  • use of a false or stolen identity
  • relevant previous convictions/cautions/previous out of court disposals for benefit fraud
  • an attempt to conceal or dispose of evidence
  • abuse of a position of trust
  • substantial consequential loss to public funds

Mitigating factors include:

  • peripheral involvement
  • behaviour not fraudulent from the outset
  • depending on the circumstances that led to the failure to disclose, the effort involved in commencing or perpetuating the fraud, its duration and the amount defrauded
  • misleading, incomplete or inadequate advice or customer service, especially if given by DWP/LA/HMRC
  • personal mitigation including voluntary cessation of offending and complete and unprompted disclosure of the extent of the fraud, voluntary restitution and (exceptionally) financial pressure not of the offenders own making

The Magistrates' Court Sentencing Guidelines on allocation provide that:

"In general, either way offences should be tried summarily unless it is likely that the courts sentencing powers will be insufficient. Its powers will generally be insufficient if the outcome is likely to result in a sentence in excess of 6 months imprisonment for a single offence."

Either Way offences under Social Security Administration Act 1992

For the purpose of obtaining benefit or another payment:

  • section 111A(1)(a) SSAA 1992 - dishonestly making a false representation
  • section 111A(1)(b) SSAA 1992 - dishonestly producing or furnishing a false document/information or knowingly causing or allowing a false document/information to be produced or furnished
  • section 111A(1A) SSAA 1992 - dishonestly failing to promptly notify a change in circumstances
  • section 111A(1B) SSAA 1992 - dishonestly causing or allowing a person to promptly fail to notify a change in circumstances
  • section 111A(1D) SSAA 1992 - the benefit recipient dishonestly failing to promptly notify a change in circumstances
  • section 111A(1E) SSAA 1992 - a person other than the benefit recipient dishonestly causing or allowing the benefit recipient to promptly fail to notify a change in circumstances

The maximum penalty for an offence under section 111A of the SSAA 1992 on summary conviction is a term of imprisonment for six months' imprisonment, or on indictment seven years' imprisonment.

Points to Prove

Section 111A(1)(a) SSAA 1992 - dishonestly making a false representation:

  • a representation was made for the purpose of obtaining benefit
  • the Defendant made that representation
  • the representation was false
  • the Defendant acted dishonestly

Section 111A(1)(b) SSAA 1992 - dishonestly producing or furnishing a false document/information or knowingly causing or allowing a false document/information to be produced or furnished:

  • a document or Information was furnished or produced for the purpose of obtaining benefit.
  • the information or document was false in a material particular
  • the Defendant produced that document or furnished that information, and
  • the defendant acted dishonestly

Or

  • the Defendant dishonestly allowed that document to be produced or that information to be furnished (charged usually where the partner of the claimant is culpable)
  • the Defendant knew that the information/document was false in a material particular and acted dishonestly

Section 111A (1A) SSAA 1992 - dishonestly failing to notify a change in circumstances:

  • the Defendant was claiming a benefit
  • there was a change in circumstances
  • the change of circumstances affected his entitlement to benefit
  • the Defendant knew the change would affect his entitlement to benefit
  • the Defendant failed to give a prompt notification of that change in the prescribed manner to the prescribed person, and
  • the Defendant acted dishonestly

In failure to report changes of circumstances offences the prosecution must prove that the benefit claimant was aware of the person to whom and the manner in which the notification of the change of circumstance must be made see Coventry City Council v Vassell [2011] EWHC 1542 (Admin).

Section 111A (1B) SSAA 1992 - dishonestly causing or allowing a person to fail to notify a change in circumstances:

  • a person (X) was claiming benefit
  • the defendant knew that X was claiming benefit
  • there was a change in circumstances
  • the change of circumstances affected X's entitlement to benefit
  • the defendant knew that the change would affect X's entitlement to benefit
  • the defendant dishonestly caused or allowed X to fail to notify the change promptly in the prescribed manner to the prescribed person

The offence of knowingly allowing can be used where a claimant is claiming for a partner who is in part time work and the partner does not tell the claimant that his earnings have increased. To prove allowing, more than just passive action is required from the defendant the prosecution must prove that the defendant failed to take some action which, had it been taken, would have resulted in the other person discharging their obligation to report the change of circumstances. The case of R v Tilley [2009] EWCA Crim 1426 is the definitive case on the meaning of allows in both summary and either way SSAA offences.

Section 111A(1D) SSAA 1992 - benefit recipient dishonestly failing to promptly notify a change in circumstances:

  • the benefit recipient was receiving benefit for claimant X
  • there was a change in claimant X's circumstances
  • the change in circumstances affected claimant X's circumstances
  • the benefit recipient knew that the change in circumstances affected claimants X's entitlement to benefit
  • the benefit recipient dishonestly failed to give prompt notification of the change in circumstances in the prescribed manner to the prescribed person

Section 111A(1E) SSAA 1992 - a person other than the benefit recipient dishonestly causing or allowing the benefit recipient to fail to promptly notify a change in circumstances:

  • the benefit recipient was receiving benefit for claimant X
  • there was a change in claimant X's circumstances
  • the change if circumstances affected claimant X's circumstances
  • a person other than the benefit recipient knew that the change in circumstances affected benefit claimant X's benefit entitlement
  • the person dishonestly caused or allowed the benefit recipient to fail to promptly notify a change in circumstances in the prescribed manner to the prescribed person

Where a claim is false from the outset, a false representation charge either under section 112 SSAA 1992, section 111A SSAA 1992 or section 2 Fraud Act 2006 should be used. R v Mote [2007] EWCA 3131 confirmed that a person should not be charged for a failure to notify offence where the claim is false from the outset - there is no change of circumstances because the circumstances which disentitle the claimant to benefit exist at the outset of the claim.

Summary only Offences under section 112 Social Security Administration Act 1992

For the purpose of obtaining benefit or another payment:

  • section 112(1)(a) SSAA 1992 - knowingly making a false representation
  • section 112(1)(b) SSAA 1992 - knowingly producing or furnishing a false document/information or knowingly causing or allowing a false document/information to be produced or furnished
  • section 112(1A) SSAA 1992 - knowingly failing to promptly notify a change in circumstances
  • section 112(1B) SSAA 1992 - knowingly causing or allowing a person to fail to promptly notify a change in circumstances
  • section 112(1C) SSAA 1992 - benefit recipient (such as an appointee or power of attorney) knowingly failing to promptly notify a change in circumstances
  • section 112(1D) SSAA 1992 - a person other than the benefit recipient knowingly causes or allows the benefit recipient to fail to promptly notify a change in circumstances

A person guilty of any of the above offences is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to a term of imprisonment not exceeding 3 months or to both.

There are specific statutory limitation provisions that apply under section 116 SSAA 1992 see Limitation periods for Summary Offences in DWP and Local Authority cases

Points to Prove

Section 112(1)(a) SSAA 1992 - knowingly making a false representation:

  • a representation was made for the purpose of obtaining benefit
  • the defendant made that representation
  • the representation was false
  • the defendant knew it was false

Section 112(1)(b) SSAA 1992 - knowingly producing or furnishing a false document/information or knowingly causing or allowing a false document/information to be produced or furnished:

  • a document or Information was furnished or produced for the purpose of obtaining benefit.
  • the information or document was false in a material particular
  • the Defendant produced that document or furnished that information

Or

  • the Defendant knowingly allowed that document to be produced or that information to be furnished (charged usually where the partner of the claimant is culpable)
  • the Defendant knew that the information/document was false in a material particular

Section 112(1A) SSAA 1992 - knowingly failing to notify a change in circumstances:

  • the defendant was claiming a benefit
  • there was a change in circumstances
  • the change of circumstances affected his entitlement to benefit
  • the Defendant knew the change would affect his entitlement to benefit
  • the Defendant failed to give prompt notification of that change in the prescribed manner to the prescribed person

in failure to report changes of circumstances offences the prosecution must prove that the benefit claimant was aware of the person to whom and the manner in which the notification of the change of circumstance must be made see Coventry City Council v Vassell [2011] EWHC 1542 (Admin)

Section 112(1B) SSAA 1992 - knowingly causing or allowing a person to fail to notify a change in circumstances:

  • a person (X) was claiming benefit
  • the defendant knew that X was claiming benefit
  • there was a change in circumstances
  • the change of circumstances affected X's entitlement to benefit
  • the defendant knew that the change would affect X's entitlement to benefit
  • the defendant caused or allowed X to fail to notify the change promptly in the prescribed manner to the prescribed person

The offence of knowingly allowing can be used where a claimant is claiming for a partner who is in part time work and the partner does not tell the claimant that his earnings have increased. To prove allowing, more than just passive action is required from the defendant the prosecution must prove that the defendant failed to take some action which , had it been taken, would have resulted in the other person discharging their obligation to report the change of circumstances. The case of R v Tilley [2009] EWCA Crim 1426 is the definitive case on the meaning of allows in both summary and either way SSAA offences.

Section 112(1C) SSAA 1992 - benefit recipient knowingly failing to promptly notify a change in circumstances

  • the benefit recipient was receiving benefit for claimant (X)
  • there was a change in claimant X's circumstances
  • the change in circumstances affected claimant X's circumstances
  • the benefit recipient knew that the change in circumstances affected claimants X's entitlement to benefit
  • the benefit recipient knowingly failed to give prompt notification of the change in circumstances in the prescribed manner to the prescribed person

Section 112(1D) SSAA 1992 - a person other than the benefit recipient knowingly causes or allows the benefit recipient to fail to promptly notify a change in circumstances

  • the benefit recipient was receiving benefit for claimant (X)
  • there was a change in claimant X's circumstances
  • the change of circumstances affected benefit claimant X's benefit entitlement
  • a person other than the benefit recipient knew that the change of circumstances affected benefit claimant X's benefit entitlement
  • the person knowingly causing or allowing the benefit recipient to fail to give a prompt notification of the change in circumstances in the prescribed manner to the prescribed person

Tax Credit Offences

Section 35 of the Tax Credits Act 2002 (TCA) is an either way offence of being knowingly concerned in fraudulent activity undertaken with a view to obtaining payments of tax credits.

Points to Prove

  • the defendant with a view to obtaining tax credits for himself, or
  • with a view to obtaining tax credits for another person
  • was knowingly concerned in fraudulent activity

A person who commits an offence under section 35(1) TCA 2002 is liable on summary conviction to a term of imprisonment not exceeding six months or a fine not exceeding the statutory maximum or both or, on conviction on indictment, to a term of imprisonment not exceeding seven years or a fine or both.

Note: Section 124 of the Welfare Reform Act 2012 (WRA) which makes offences contrary to section 35 TCA 2002 under £20,000 subject to summary trial is not yet in force.

Obstruction Offences

Section 111 SSAA 1992 - (not to be confused with section 111A of the SSAA 1992).

This is an obstruction offence and applies in circumstances where FIS have contacted a potential information provider (e.g. an employer for wage information) and that person delays or refuses to provide FIS with the information that has been requested. Section 111 is very much an offence of last resort and is used when it is clear that the information provider wilfully will not provide FIS with the information that has been requested.

Section 111 SSAA 1992 - Delay, obstruction of inspector

  • an authorised officer requested the defendant to furnish information
  • the defendant delays, refuses or neglects to provide the information requested by the authorised officer, or
  • obstructed the authorised officer from exercising his powers under the SSAA

The maximum penalty for an offence under section 111 SSAA 1992 is a fine not exceeding level 3 on the standard scale. Where a person is convicted of an offence section 111 and the refusal or neglect is continued by him after his conviction, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding £40 for each day on which it is continued.

Limitation periods for Summary Offences in DWP and Local Authority cases

The limitation periods for section 112 and section 112(1A) Social Security Administration Act 1992 (SSAA) offences are set out in section 116(2)(a) and section 116(2)(b) SSAA 1992.

Proceedings for section 112 and section 112(1A) SSAA 1992 offences must be commenced before whichever is the later of the following:

  • within 12 months of the date of the commission of the offence or
  • within 3 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify prosecution for the offence, comes to his knowledge.

Calculating the summary limitation periods

The 12 month limitation period starts to run from:

  • in a false representation offence under section 112 SSAA 1992 - on the date on which the false representation, information or document was received at the benefit office, or
  • in a failure to report a change of circumstances offence under section 112(1A) SSAA 1992 - on the last date of the offending period

For example, in a failure to report a change of circumstances offence under section 112(1A) SSAA 1992 where the offence period is between 1 January 2010 and 31 December 2010, the limitation period will expire on 31 December 2011. The case of Smith v North Somerset DC [2007] EWCH 1767 is authority for the proposition that in the case of a continuous ofence under the SSAA 1992, the limitation period does not start to run until and from the closing date of the offence.

The closing date for section 112(1A) SSAA 1992 purposes will usually be the date DWP/LA became aware of the change or suspends or ceases to pay benefit but it will depend on the facts.

The 3 month limitation period

The sufficiency of evidence date should normally be the date the last piece of essential evidence became available to the Secretary of State.

Under section 116 SSAA 1992 , the Secretary of State (in practice tthe fraud Investigators manager, acting on delegated authority) not the prosecutor, decides when the 3 month period commences for the purpose of extending limitation. The fraud investigators manager will issue and sign a certificate providing the date on which sufficient evidence to justify a prosecution came to the attention of the Secretary of State. DWP FIS can determine the sufficiency of evidence date and issue certificates under section 116(2)(a) SSAA 1992 for summary offences in connection with social security. Social security is defined in SSAA 1992 and includes housing benefit and council tax benefit.

Where a local authority has investigated the cases 116(2)(b) SSAA 1992 enables the local authority to make the decision on the sufficiency of evidence date and issue a section 116 certificate in respect of the offences connected with housing benefit / council tax benefit only. The SSAA 1992 does not allow the DWP to delegate the function of determining the sufficiency of evidence date or issuing section 116(2)(a) SSAA certificates in respect of DWP benefit offences to LA officers. This applies in all cases where an LA officer has investigated DWP offences and includes where the LA investigator is authorised under section 109A SSAA 1992 and acting as service provider to the DWP as part of SFIS.

Where the case includes a number of offences (including where there are offences against DWP and LA administered benefits) the sufficiency of evidence date must be considered separately for each offence.

False representation offences

The evidence is sufficient as soon as the investigator establishes that, for the purpose of obtaining benefit for himself or another, the defendant made a statement or representation which he knew to be false. The evidence is likely to be sufficient at the close of the investigation into the facts and before any assessment is made of the effect of the false representation on entitlement to benefit. In many cases, this may be the interview under caution but it will depend on the facts.

Failure to notify offences

No offence is committed unless the change of circumstances relied upon is one which affects the claimants entitlement to benefit. The evidence will not be sufficient until there is confirmation from a Decision Maker that the relevant change of circumstances did in fact affect entitlement.

Producing or furnishing false documents or information

The evidence is not sufficient until it proves that the document or information was false in a material particular. The evidence is sufficient as soon as the investigator establishes that, for the purpose of obtaining benefit, the defendant produced or furnished a document or information which he knew to be false and that the particular falsehood contained in the document or information is material. The materiality of the falsehood depends on its effect on the claimants entitlement to benefit.

CPS WRHD prosecutors will scrutinise the Secretary of State certificate and the case chronology to ensure that the certificate has been properly issued so that proceedings can be lawfully commenced within the limitation period .

Where the 3 month limitation period has been applied and a certificate issued pursuant to section 116 SSAA 1992, the court should not go behind the certificate unless the certificate was inaccurate or fraudulently obtained Azam v Epping Forest DC (2009) EWHC 3177 (Admin)

Other offences and Benefit and Tax Credit Fraud

  • Fraud Act
  • Theft Acts
  • Identity Fraud (including Forgery and Counterfeiting
  • Common Law conspiracy to defraud or to cheat the Revenue

Other Offences - Issues to consider in WRHD cases

Subject to governing principles set out in the Charging Standard and elsewhere in the Legal guidance, prosecutors considering offences contrary to the general criminal law may also need to consider the following in WRHD cases:

  • section 15(A0) Theft Act 1968 - obtaining money transfers by deception. This offence may be used for payments made by Automated Credit Transfer (ACT) between 18 December 1996 and 15 January 2007 - pre Fraud Act 2006
  • section 24A Theft Act 1968 - dishonestly retaining a wrongful credit. This offence may be used for offences after 18 December 1996 and may be appropriate where the original claim form has been lost or destroyed.
  • section 17(1)A Theft Act 1968 - false acounting. Osinuga v DPP [1998] Crim LR 216 decided that an application for for housing benefit was a document used for an accounting purpose, reversing an earlier authority of R v Sier QBD CO/890/2000 25 May 2000.
  • Forgery and Counterfeiting Act 1981, Identity documents Act 2010 and Identity Cards Act 2006, where a forged document has been presented in support of a claim for benefit or in support of an application for a National Insurance Number.
A forged National Insurance Number (NINO) Card
  • is a false instrument for the purpose of sections 1 and 3 Forgery and Counterfeiting Act 1981
  • could be an article for use in fraud under section 6 or section 7 Fraud Act 2006

but

  • is not a false instrument for the purposes of section 5 Forgery and Counterfeiting Act 1981
  • is not an "identity document" for the purpose of the now repealed section 25 Identity Cards Act 2006 offence
  • is not an "identity document" for the purposess of sections 4-6 Identity Documents Act 2010 offences

A forged birth certificate

  • is a false instrument for the purpose of section1, section 3 and section 5 Forgery and Counterfeiting Act 1981
  • could be an article for use in fraud under section 6 and section 7 Fraud Act 2006

but

  • is not an "identity document" for the purpose of the now repealed section 25 Identity Cards Act 2006
  • is not an "identity document" for the purpose of sections 4-6 Identity Doscments Act 2010 offences

A valid birth certificate or NINO card presented by someone purporting to be that person (for example in a hijacked identity case)

  • could be an article for use in fraud under section 6 or section 7 Fraud Act 2006

but

  • is not within the definition of "false" under section 9 Forgery and Counterfeiting Act 1981
  • is not within the definition of "identity document" for the purpose of
  • the repealed Identity Cards Act 2006
  • the Identity Documents Act 2010

but other Fraud Act offences may apply e.g. section 6 or section 7 Fraud Act 2006 offences - possession of articles for use in frauds and making or supplying articles for use in fraud.

Witness Care

All witness care is arranged by DWP FIS investigators in conjunction with WRHD prosecutors. Witness Care Units are not currently used for DWP/DoH cases, although the court's Witness Service is used.

Loss of Benefit following Conviction

Since 1 April 2002, the loss of benefit provisions contained in Social Security Fraud Act 2001 have made it possible to restrict payment of benefit for 13 weeks following a conviction for a second benefit fraud offence where the offence was committed:

  • within 3 years of a previous conviction where the second offence was committed before 1 April 2008, or
  • within 5 years of a previous conviction where the second offence was committed on or after 1 April 2008

From 1 April 2010, further loss of benefit provisions amending section 11(1) Social Security Fraud Act 2001 made it possible to impose a restriction of benefit payment for 4 weeks following a conviction, a caution or an administrative penalty for a first benefit fraud offence.

In April 2013 the Loss of Benefit Provisions under sections 117 to 119 of the Welfare Reform Act 2012 came into force bringing further amendments to Social Security Fraud Act 2001.

Those who accept administrative penalties, cautions or who are convicted of benefit offences may be subject to the loss of benefit rules. Where the rules apply, the claimant may have their benefit payment reduced wholly or in part for a number of weeks.

Different provisions apply to persons accepting administrative penalties or cautions but for those convicted of offences committed wholly after 1 April 2013 The reduction periods will be:

  • for a first conviction - 13 weeks (previously 4 weeks)
  • for a second offence committed within 5 years - 26 weeks (previously 13 weeks)
  • for a third offence committed within 5 years - 3 years (previously 13 weeks)
  • for a single conviction for a serious or organised benefit or identity fraud (whether for a first or subsequent conviction) - 3 years(new)

Serious or organised benefit or identity fraud:

By virtue of section 118(5) of the Welfare Reform Act 2012 a conviction for any of the following offences will result in a three year disqualification or reduction of benefit:

Offences under

  • section 8 of the Accessories and Abettors Act 1861;
  • section 1 of the Criminal Law Act 1977
  • sections 1, 3, 4 or 5 of the Forgery and Counterfeiting Act 1981
  • sections 6 or 7 of the Fraud Act 2006
  • sections 44, 45 or 46 of the Serious Crime Act 2007
  • section 182 of the Social Security Administration Act 1992
  • sections 327, 328 or 329 of the Proceeds of Crime Act 2002
  • sections 4, 5 or 6 of the Identity Documents Act 2010

if it is found by the court to have been accompanied with one of the following:

  • the offence resulted in an overpayment of at least £50,000
  • the offence has been punished by a custodial sentence of at least one year (including a suspended sentence)
  • the offence was committed over a period of at least 2 years

In the case of offences committed under

  • section 1 of the Fraud Act 2006
  • section 35 of the Tax Credits Act 2002 or
  • section 111A of the Social Security Administration Act 1992

the three year disqualification or reduction of benefit penalty will apply if it is found by the court to have been accompanied by one of the following:

  • the offence resulted in an overpayment of at least £50,000
  • the defendant has been punished with a custodial sentence of at least one year (including a suspended sentence)

In England and Wales, a conviction for an offence of conspiracy to defraud at common law will automatically trigger the three year reduction of benefit sanction. None of the above conditions are required.

In all cases to which the loss of benefit provisions apply, the Regulations make provision for a reduced rate of means tested benefits or hardship payments to be payable in exceptional circumstances throughout the disqualification period.

Diversion from Prosecution

Disposals available to DWP for alleged benefit fraud

When an allegation of benefit fraud is received by the DWP, the allegation is assessed and a decision is made whether the case is to be investigated to criminal investigation standards or referred for an alternative form of intervention through customer compliance or other methods.

DWP civil route - Customer compliance and civil penalties

Where a DWP case is dealt with by customer compliance, the claimant will be interviewed and questioned about any allegations made. Following the interview, the claimant may be reminded of their notification obligations whilst in receipt of benefit, advised about future conduct and action may be taken to rectify their claim. If the grounds in section 115C SSAA 1992 and secton 115D SSAA 1992 are made out, a civil penalty of £50 may be imposed where an overpayment exceeds £65 and is incurred wholly after 1 October 2012. The grounds are that the claimant negligently made or gave an incorrect statement or incorrect information in connection with a claim or award of a social security benefit, the person failed to take reasonable steps to correct the error, the error resulted in an overpayment and the person has not been charged with an offence or cautioned or given an administrative penalty notice in respect of the overpayment.

Local Authorities' civil route

Section 115C and section 115D SSAA1992 apply to Local Authorities. LAs apply their own local enforcement policies; some LA policies adopt similar policies on customer compliance and civil penalties to those applied by DWP.

Disposals available to DWP and LA Investigators following a criminal investigation

Administrative Penalties (Adpens)

Administrative penalties are applied by DWP FIS and LA investigators under sction 115A and section 115B SSAA 1992 as an alternative to submission to the CPS to consider prosecution for offences connected with DWP and LA administered benefit. Section 115A SSAA1992 does not apply to tax credits.

Administrative penalties are an alternative to prosecution in low level cases; under section 115A and section 115B SSAA 1992 an administrative penalty can be offered where there are grounds for instituting proceedings for an offence against that person.

Prosecutors are not involved in the decision to offer administrative penalties. Prosecutors can ask FIS to consider offering an administrative penalty where there is no evidence that FIS has considered offering an administrative penalty and the prosecutor believes this would be a suitable means of disposal.

Administrative penalties under section 115A SSAA 1992 differ from simple cautions in that no admission of guilt is required before one can be offered to the defendant. They do not appear on a PNC record. However, they may be admissible under the bad character provisions.

For offences committed prior to or spanning 8 May 2012, section 115A SSAA 1992 sets the level of the administrative penalty at 30% of the overpayment(s) relating to that offence.

For offences committed wholly after 8 May 2012, section 115A SSAA 1992 sets a minimum administrative penalty of £350, or 50% of the amount overpaid whichever is the greater, up to a maximum penalty of £2,000. Legislation is being considered to increase the administrative penalty cap to £5,000 with effect from April 2015. This guidance will be reviewed following further consultation with the DWP on the proposed changes.

The Administrative penalty under section 115A SSAA 1992 must be paid in addition to repaying any overpayment.

An Administrative penalty of £350 can be issued where the offence did not result in an overpayment.

It is DWP policy to offer these penalties where the case is deemed to be not so serious that the case should be considered in the first instance. The offer of an administrative penalty will generally be made, as an alternative to referral to the CPS to decide whether to prosecute, where the gross overpayment does not exceed £4,000 and there are no aggravating features. This £4,000 overpayment upper limit is DWP policy, and is not prescribed in statute. The £4,000 overpayment upper limit came into effect in July 2014. The upper limit prior to July 2014 was £2,000.

Local Authorities can decide on the suitability of an administrative penalty as a disposal for offences connected with housing benefit and council tax benefit only. In doing so, Local Authorities follow their own enforcement policies; the amount of penalty remains as prescribed by statute but the level of overpayment to which the administrative penalty applies will vary between authorities.

Many Local Authorities follow DWP criteria on offering administrative penalties.

Whilst Local Authorities cannot decide on (and DWP cannot delegate the function of deciding upon) the suitability of an administrative penalty as a disposal for offences connected with DWP administered benefits, Local Authorities can under section 115A(7(A) and (B) SSAA 1992 enter into an agreement with DWP to undertake the process of offering an administrative penalty. This restriction on delegation applies even where the Local Authority officer has investigated offences connected with DWP administered benefits and where it is acting as service provider to the DWP under s 109A SSAA1992 authority as part of SFIS. LA officers participating in the SFIS pilots will be expected to apply DWP policy on administrative penalties- subject to any restrictions on delegation.

HMRC officers (either acting jointly with DWP or as part of SFIS) have no statutory authority to offer administrative penalties under s115A SSAA1992.

Civil penalties available in tax credit cases

Where a tax credit case is investigated but does not meet the DWPs criteria for submission for prosecution the case may be referred to HMRC to consider whether a civil penalty or other disposal will apply.

DWP Simple Cautions

For offences committed wholly before 1 April 2012, DWP FIS investigators would offer what DWP termed as administrative cautions in appropriate cases. Administrative cautions were , in effect the same as simple cautions and offered in accordance with DWP administrative cautions are not registered on the PNC but registered centrally within DWP. Previous DWP cautions will be recorded on the DWP prosecution file.

DWP has ceased offering simple cautions for offences committed wholly after 1 April 2012, following a ministerial policy decision only to use administrative penalties as an alternative to submitting to the CPS to make a decision whether a prosecution should take place.

This does not affect the prosecutors ability to advise that a simple caution is an appropriate penalty in appropriate cases

Local Authorities and simple cautions

Local Authorities apply their local enforcement policies which may include applying simple cautions.

Local Authority Investigators can investigate offences in connection with prescribed range of benefits and may offer cautions at the end of such investigations. LAs must apply local government legislation in exercising LA functions but there is no other statutory restriction on LAs administering simple cautions.

Local Authority officers participating in and investigating as part of the SFIS pilots will be expected to apply DWP policy on simple cautions.

Prosecutors with queries about DWP, LA or HMRC enforcement policy are asked to contact the policy lead

Out of court disposals available to prosecutors

The DWP policy on the use of simple cautions has no impact on prosecutors ability to advise the use of a simple caution in appropriate cases.

Cases fall into two categories:

  • Offences wholly pre April 2012, where the criteria in DWPs previous cautions policy or s115A SSAA 1992 are fully met. Prosecutors may, in consultation with FIS/LA, consider referring appropriate cases back to DWP FIS/LA for a caution to be administered or an administrative penalty to be offered. Such cases may include where the offender did not engage in the caution or administrative penalty process owing to a lack of understanding or knowledge of the offer or where there is no evidence that DWP FIS/LA considered its enforcement (Penalty) policy.
  • Offences occurring wholly post April 2012 or where offending takes place both before and after that date. Prosecutors may, in consultation with DWP FIS/LA, consider referring appropriate cases back to DWP FIS/LA for an administrative penalty to be offered. Such cases may include where the offender did not engage in the caution or administrative penalty process owing to a lack of understanding or knowledge of the offer or where there is no evidence that DWP FIS/LA considered its enforcement (Penalty) policy. Prosecutors will advise the offer of a simple caution only in exceptional circumstances.
  • When considering the public interest test prosecutors should take into account the relevant enforcement policy and that, in the application of the disposal hierarchy, only the most serious cases are referred to the CPS.

CPS guidance in Cautioning and Diversion on the use of out of court disposals applies in all cases.

If the offer of a caution or an administrative penalty is declined by the defendant the prosecutor should reconsider prosecution in line with CPS guidance and the Code.

If DWP FIS/SFIS/LA decline to offer a simple caution the CPS will not prosecute and there will be no further action in the case.

Conditional Cautions

Conditional Cautions are not generally available for DWP/LA benefit offences unless the offender is a foreign national and the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act apply. If the provisions apply and the criteria for conditional cautions are satisfied the CPS can direct that a conditional caution be issued with the object of bringing about the foreign national offender's departure from the UK and/or ensuring they do not return for a petriod of time.

CPS Powers to Prosecute Department for Work and Pensions and Department of Health cases

With effect from the 1st April 2012 the Attorney General assigned functions to the DPP to institute, conduct and assume criminal proceedings in England and Wales and to provide legal advice in respect of criminal investigations conducted by or on behalf of:

  • The Secretary of State for Work and Pensions
  • The Secretary of State for Health, also criminal investigations conducted by him on behalf of the Welsh Ministers (subject to their ongoing consent). Similarly, criminal investigations conducted by or on behalf of the NHS Business Service Authority
  • Local authorities in respect of benefit offences within the meaning of Part VI Social Security Administration Act 1992 where the Director has agreed to prosecute the Local Authority cases (usually via service level agreement or Memorandum of Understanding)

Crown Prosecutors designated under section 1 of the Prosecution of Offences Act 1985 and Associate Crown Prosecutors designated under section 7A of the Act have the same powers in respect of the cases investigated by those listed in the paragraphs above as in every other case conducted by the CPS.

Provisions in the Welfare Reform Act 2012 permit information to be passed to the CPS from DWP to enable the DPP to discharge those functions.

Joint investigations are sometimes conducted between DWP and HMRC Investigators, led by the DWP. Under SFIS arrangements DWP, HMRC and Local Authority investigators authorised by the Secretary of State under s109A SSAA1992 will also conduct tax credit investigations. All CPS prosecutors can prosecute these cases. It is not necessary to be a designated Revenue and Customs Prosecutions Office prosecutor. Cases investigated by HMRC alone will continue to be prosecuted by designated RCPO prosecutors until the merger of the CPS and RCPO is placed on a statutory footing.

With regard to cases investigated by local authorities, the terms of the Attorney Generals assignment restricts the cases which DPP can prosecute to cases falling within the definition of benefit offence in Part VI SSAA1992. For example, whilst council tax benefit is included within the definition of Part VI SSAA1992 ,Council Tax Reduction schemes, which replace council tax benefit on 1 April 2013 are not included within that definition and the DPP has no assigned function to prosecute Council Tax Reduction Scheme cases investigated by Local Authorities alone.

Where the DWP has jointly investigated a case (and has the vires to investigate such a case) with another person, for example another Government Department, or Local Authority, the terms of the assignment allows the DPP to exercise the prosecution function in relation to that joint investigation.

Department of Health National Health Service (NHS) cases

NHS Investigations

NHS fraud cases are investigated by NHS Protect. Investigators are regionally based and are tasked with tackling crime affecting the health service,

NHS Protect has responsibility for investigating cases of alleged

  • bribery
  • forgery
  • corruption
  • forgery
  • fraud
  • theft against the NHS

NHS Protect investigation powers

  • NHS investigators do not have the powers of detention, arrest, search or seizure and rely on police assistance when any of these functuions are required
  • NHS investigators apply Code C of PACE. Suspects attend interviews under caution (IUC) voluntarily. Where there is no constable present at the interview, free legal advice is not automatically available. Suspects are informed at the beginning of the IUC that they have the right to seek legal advice and the interview may be suspended to enable them to do so.

RIPA 2000 enable NHS investigators to authorise directed surveillance (but not intrusive surveillance) for the prevention or detection of crime

  • NHS investigators have powers under sections 2(1)(b) and 195(2) Natonal Health Service Act 2006 (NHS Act) to prevent, detect and investigate offences and other unlawful activities carried out against the health service. Under Part 10 NHS Act, NHS Protect investigators are authorised to serve disclosure notices requiring the production of documents against health service organisations/employees for the purposes of investigating and detecting offences.
  • Section 204 NHS Act creates offences of failure to comply with a requirement to produce documents and making a false or misleading statement in purported compliance with a requirement imposed
  • NHS investigators cannot charge or bail suspects. Unless the police are involved in the investigation criminal proceedings are instituted by postal charge and requisition byt the CPS WRHD. Serious cases iof fraud will involve NHS Protect investigators working closely with the police. In these cases the police will charge the suspect and the WRHD prosecutor or out of hours CPS Direct will provide the police officer with legal advice on charging before or following arrest.

Hierarchy of disposals in NHS investigated cases

DH sanctions policy (Annex C) applies to NHS fraud cases investigated by NHS investigators

NHS investigators have discretion whether:

  • to take no action
  • to pursue the case by civil means only (eg by civil recovery or disciplinary proceedings)
  • to offer a civil penalty (only available in prescription charge cases. See - Impact of civil penalty on prescription charge prosecutions)
  • to offer a simple caution
  • to refer the case to CPS for a decision on whether to prosecute

NHS Prosecution cases

Cases referred to the CPS for prosecution usually involve abuse of position, breach of trust or organised fraud even where the value of fraud is low.

The CPS can advise on NHS investigations in the same way as they can advise the police.

NHS Specific Offence - Prescription Charge Summary Offence

In addition to the general criminal law , section 194 NHS Act 2006 (NHS Act) provides a summary only offence, punishable with a level 4 fine, in connection with prescription charges.

Points to Prove

Section 194(2) NHS Act

  • a statement or representation is made/documents or information produced or provided with a view to securing the evasion of the whole or part of a prescription charge/reduction remission/repayment of a prescription charge or other payment under the Act
  • the statement/representation/document/information is false
  • the defendant knows the statement/representation is false or knowingly allows another to make the false statement or representation
  • the defendant knows the document or information produced or provided is false in a material particular or causes or knowingly allows another to produce or provide it.

Limitation periods in NHS Prescription Charge Summary Offence

Proceedings for an offence under section 194(5) NHS Act 2006 may be begun within

  • the period of three months beginning with the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to his knowledge, or
  • the period of 12 months beginning with the commission of the offence.

Whilst very rarely used, that decision is exercised by the NHS Protect under the Secretary of State's delegated authority.

Impact of civil penalty on prescription charge prosecutions

Where a person is convicted of a prescription/payment offence under section 194 NHS Act, the defendant will not be liable to pay any penalty charge or further sum under the Acts civil penalty regime.

Conversely, where a person pays a civil penalty recoverable under s193 NHS Act in respect of a prescription/payment offence that defendant must not be convicted of an offence under section 194 in respect of the charge or payment. Thus the application of a civil penalty is a bar to prosecution.

Mode of trial in NHS prosecutions

CPS guidance on mode of trial will apply where offences are charged contrary to the general criminal law.

Out of court disposals available to prosecutors in NHS investigated cases

Given the range of out of court disposals already considered before a case is referred to the CPS to consider prosecution, prosecutors will consider advising that a caution is an appropriate disposal only in exceptional circumstances.

When considering the public interest test prosecutors should bear in mind that only the most serious cases, often involving abuse of position or breach of trust, are referred to the CPS.

CPS guidance on the use of out of court disposals applies in all cases.

Any decision to advise NHS investigators to offer a caution must be approved by the Head of the Welfare Rural and Health Division before it is communicated to NHS Protect or to the defence. If the offer of a caution is declined by the defendant the prosecutor should reconsider prosecution in line with guidance and the Code.

Sentencing guidelines in NHS Prosecution cases

The majority of NHS prosecutions will be brought under the general criminal law. Where fraud is charged, the Sentencing Councils guidelines on fraud offences will apply.

The advocate should ensure that the court is aware of the seriousness of the breach of trust/abuse of position.

Post Conviction orders in NHS Prosecution cases

Financial Investigations

The NHS Protect has its own accredited Financial Investigators undertaking financial investigations. Assistance is sought from Regional Asset Recovery Team (RART) where necessary. If an ancillary order is sought there will be instructions to the advocate on the file.

Confiscation Orders

Applications for confiscation orders will be sought in NHS cases in accordance with usual CPS practice.

Costs

The usual CPS scales will apply to prosecution costs in NHS fraud cases

Compensation

Compensation orders are regularly sought in NHS cases.

Crown Prosecution Service powers to prosecute NHS cases

The Attorney General assigned to the Director of Public Prosecutions the functions of advising on and the prosecution of, cases investigated by the NHS Business Services Authority and Department of Health, NHS Protect is part of the NHS Business Authority. The assignment took effect from 1 April 2012.

Confidentiality and information sharing

Section 201(3)(d) of the Act permits the Secretary of State for Health to disclose information for the purposes of any criminal investigation or criminal proceedings. This provision enables information to be disclosed to the Director of Public Prosecutions for the purposes set out in the assignment referred to above. Prosecutors will be mindful of patient confidentiality at all times

ANNEX A

Common DWP Acronyms and abbreviations used in Welfare Rural and Health prosecutions.

AA - Attendance Allowance
ACT - Automated credit transfer: payment transferred directly from DWP into a bank account
Ad - Administrative Penalty issued under s115 Social Security Administration Act as an alternative to prosecution
AP - Alleged Partner
CA - Carers Allowance
CB - Child Benefit
CTB - Council Tax Benefit
CTC - Child Tax Credits
DWP - Department for Work and Pensions
DH - Department of Health
DLA - Disability Living Allowance
ESA - Employment Support Allowance
FFO - False from the outset
FTN - Failure to notify
FI - Fraud Investigator
FIO - Fraud Investigation Officer
FIS - DWPs Fraud Investigation Service
HMRC - Her Majestys Revenue and Customs
HB - Housing Benefit
IB - Incapacity Benefit
IS - Income Support
IUC - Interview Under Caution
JSA (CB) - Jobseekers Allowance Contributory Based
JSA (IB) - Jobseekers Allowance Income Based
K&CR - Know and can recognise statement
LA - Local Authority
LTHW / LTAHW - Living together as husband and wife
LT54 - Decision Makers overpayment statement of reasons document
ORG7 / DLOrg7 - Decision Makers Overpayment Recoverable Amount Notification Letter
PC - Pension Credit
PIP - Personal Independence Payment
S116 - certificate / Secretary of State certificate A certificate issued by a DWP/LA investigator certifying the date of sufficiency of evidence for the purpose of extending limitation beyond the 12 month statutory time limit under s116A Social Security Administration Act 1992
SFIS - Single Fraud Investigation Service (comprising DWP, Local Authority and HMRC fraud investigators investigating fraud against all social security benefits and tax credits)
SSAA - Social Security Administration Act 1992
SSFA - Social Security Fraud Act 2001
TC - Tax Credits
TFI - Team Fraud Investigator
UC - Universal Credit
W/C W/D or WIR - Working whilst claiming, working whilst drawing benefit or working in receipt of benefit
WRHD - Welfare, Rural and Health Division

ANNEX B

Sentencing Council's Guidelines and Magistrates' Court sentencing Guidelines for Social Security and Tax Credit Offences

ANNEX C

DH Sanctions Policy