Appendix 1: Wigan Council - Housing Benefit / Council Tax Benefit Fraud Prosecution Policy

As outlined in the Authority’s Anti-Fraud Policy Statement the Authority is committed to protecting the public funds it administers through its actions in respect of the investigation of suspected fraudulent claims for Housing Benefit and/or Council Tax Benefit.

This policy statement is intended to provide broad guidance to Authority officers involved in the detection and investigation of fraud. This will enable them to determine the appropriate course of action to take based on the contents of the “Criteria to be Assessed when Considering he Prosecution of Offenders” policy statement (appendix 1 to this policy). This will be supplemented by subsequent addenda as approved by the Director of Finance and IT.

At the conclusion of all investigations by members of the Benefits Fraud Investigation Team and/or the Internal Audit Section where it is considered that appropriate evidence exists to sustain a prosecution the Authority will consider the appropriateness of the following actions:-

No Action Other Than Recovery

If the overpayment is under £500, and

the Authority is satisfied that, in most cases, it is not in the public interest to take any form of action (other than recovery of overpaid amounts) in respect of offenders whose circumstances and/or actions meet the above criteria. 

Local Authority Caution and Administrative Penalty

If the offender admits responsibility for the offence evidential requirements are met for prosecution and the overpayment is under £2000 and

the Authority is satisfied that, in most cases, it is appropriate to take further action by offering the customer, as an alternative to prosecution, either a Local Authority Caution or an Administrative Penalty. The Authority must in each case give consideration to each individual’s circumstances.

Should an individual refuse to accept a Local Authority Caution or Administrative Penalty the case will be referred for prosecution, unless other mitigating factors are established.

Criminal Prosecution

If the overpayment is over £2,000, and the following criteria apply:

General

It is acknowledged that certain cases will not relate directly to any of the above categories. However, each case will be considered on its own individual merits in accordance with the Authority’s approved “Criteria to be Assessed when Considering he Prosecution of Offenders” policy statement and appropriate action taken.

The decision to offer the Administrative Penalty will be authorised by the Assistant Director (Benefit Services) or the Principal Benefits Officer. The referral of individual cases for prosecution will be authorised directly by the Assistant Director (Benefit Services).

All cases involving Local Authority Cautions, Administrative Penalties and prosecution referrals will be reported monthly to Senior Management with a quarterly statement being referred by the Assistant Director (Benefits Services) to the Performance Panel.

All cases involving Authority officers will be referred to the Assistant Director (Audit and Payroll Services) prior to a decision on any further action being taken. This will enable the necessary referral to the appropriate Departmental management to allow the initiation of disciplinary procedures in accordance with Section.10.2 of the Authority’s Corporate Code Of Conduct for Employees.


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Appendix 1 to the Benefit Fraud Prosecution Policy

Criteria to be Assessed when Considering the Prosecution of Offenders

When considering the Authority’s responsibility to prosecute, the Investigating Officer will take factors (a) to (h) below into account. These factors are aimed at directing prosecutions on those who have:

The factors are not mutually exclusive but the Authority aims their assessment at providing a consistent, correct, and reasonable approach to determine the prevailing criteria to progress a prosecution. The factors should determine whether the two essential prosecution elements are valid:

Financial Limit (The Amount of Money Obtained and the Duration of the Offence)

Careful consideration would have to be given to commencing a prosecution where the amount of the fraudulent activity has not resulted in ‘significant financial gain’ to the claimant; i.e. the amount of the fraudulent overpayment is less than the cost of proceedings.

Where there is no significant financial gain, a prosecution could still be considered if it is felt that the fraud was a deliberate attempt to gain money by deception. Examples are where the fraud has been discovered after a relatively short space of time and a significant financial gain has not yet occurred, in the case of a persistent offender or any other case where prosecution would be warranted.

The financial guideline of £2,000 has been established as the minimum amount at which the Authority would refer a case for prosecution. Cases will however be referred for prosecution where a customer has refused to accept an Administrative Penalty or Local Authority Caution offered to them as alternative to prosecution.

a) Physical/Mental Factors [The Suspects Physical and Mental Condition (including age)]

Consideration must be given in deciding when to prosecute if it is considered that significant personal or mental problems may have contributed to the reasons for committing the offence. In addition, due consideration should be given where there is any evidence to suggest that the claimant or partner or a third party (e.g. a child) would be severely affected by our actions. Obvious examples include acute medical conditions, mental health, age, or any case where it appears that health would be affected detrimentally.

It is essential when considering the above issues that an appropriate impartial opinion as to the claimant’s physical and/or mental condition is obtained.

b) Voluntary Disclosure

It may not be appropriate to prosecute those whose disclosure (of their own free will) identifies a fraud of which the Authority was unaware. However, this would be dependent on agreement to repay all sums overpaid within a time-scale established by the Authority.

c) Any Previous Incidence Of Fraud

Any previous benefits related fraudulent activity should form part of the overall “prosecution assessment”, this is regardless of any previous offences that did not result in prosecution.

d) Social Factors

If it is considered that the claimant’s failure to declare the correct circumstances has been caused by significant extenuating social or financial factors these should be fully evaluated.

e) Clarity of Evidence

Substantive evidence is essential to progress any conviction. Proceedings should not be sought if there is any suggestion that the required evidence is not available. It must be clearly evident that the fraudulent act was actually committed, that it was committed in the full knowledge of benefit regulations and that it was committed with the clear and deliberate intention to obtain money by deception.

f) Failure In Investigation

It should be evident on the case file that all appropriate procedures have been adhered to with regard to satisfying the conditions of the Police and Criminal Evidence Act with relation to the “Questioning of Offenders”.

In addition, if the investigation has not been conducted in accordance with agreed Authority procedures, a prosecution should not be progressed.

If the investigation is flawed in any way or there has been any unacceptable delay in the course of enquiries, careful consideration should be given as to whether the case would be of sufficient standard to be considered for referral to court.

g) Failure In Benefit Administration

Full account must be taken of remiss administration or fault on the part of the Authority or the DWP that has contributed to the processing of the fraudulent claim and subsequent award of benefit.

 

Periodically a Prosecution Assessment Matrix, applying appropriate weightings to certain of the above factors will be developed by the Assistant Director (Benefit Services) in consultation with the Assistant Director (Audit and Payroll Services) and approved by the Director of Finance and IT. This action will usually be linked to a data-matching initiative and will ensure an impartial and consistent approach is maintained in identifying claimants to refer for prosecution within manpower resource constraints. Even if such a matrix is utilised a full account will still be taken of the individual circumstances of each case.


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