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1      BENEFIT FRAUD
1.1      Social Security Administration Act 1992 s 112
False representations for obtaining benefit etc. Summary only. Maximum 1 month and/or
Level 5 fine (£5,000). When the Criminal Justice Act 2003 s 280(2) & Sch 26 Para 47 is in
force the maximum will increase to 51 weeks.
Social Security Administration Act 1992, s 111A & 114
Dishonest representation to obtain benefit/fraudulent evasions. Triable either way. On
indictment maximum 7 years. Summary maximum 6 months and/or £5,000.
Many offences can also be charged under the Fraud Act 2006, false instruments, forgery etc.
See also the FRAUD AND FINANCIAL SERVICES OFFENCES chapter and the TAX FRAUD
chapter.
Compensation For an authority on how to calculate the compensation ‘benefit’, see R v
Richards 2005 2 Cr App R (S) 583. (See also the Compensation paragraph.)
Statistics The Court in R v Graham 2005 1 Cr App R (S) 640 at para 26 was told that in 2002
benefit fraud was estimated at £2 billion. There were between 12,000 and 14,000
prosecutions with 80% dealt with at the Magistrates’ Court. Fewer than 150 defendants were
sent to prison. The average sentence was between 6 and 9 months.
1.2      Guidelines
Fraud Guideline 2009, see www.banksr.com Guidelines tab. This guideline applies to first-
time offenders 18+ who were convicted after a trial.
The principal offences likely to be used to prosecute benefit frauds are: Fraud, False
accounting, False representation to obtain benefit, Failing to disclose a change in
circumstances or Tax credit fraud.
This guideline is based on an understanding that the prosecutor will generally seek summary
trial for appropriate benefit fraud cases involving sums up to £35,000; the Council does not
consider that the starting points proposed would interfere with that practice. A single
fraudulent transaction or a multiple fraud. Where one false declaration or a failure to disclose
a change in circumstances results in multiple payments, this should be regarded as multiple
fraud. The Council considers it unlikely that more than £100,000 could be obtained in a
benefit fraud, unless the offence was professionally planned and either carried out over a
significant period of time or through multiple frauds. In addition, it is unlikely that more than
£20,000 could be obtained in a single fraudulent transaction benefit fraud. Consequently, the
guideline does not provide separately for such circumstances. The maximum penalty for most
of the offences is 7 years’ imprisonment. Where fraud under the 2006 Act is charged and the
maximum penalty is 10 years, the proposed sentencing ranges leave headroom for offences
involving the largest scale frauds to be sentenced outside the range and up to the maximum.
Generally, those who commit benefit fraud are asked to repay the sums defrauded, although
the process of recovery may be spread over a significant period and may not be possible in
every case. As recovery of defrauded benefits is not guaranteed and operates quite separately
from civil or criminal sanctions, this has not been taken into account in the Council’s
proposals. The fact that defrauded sums may have been recovered is not relevant to the
choice of the type of sentence to be imposed.

                                               1
                                          Amount obtained or intended to be obtained

Nature of           £500,000 or more     £100,000 or        £20,000 or more      £5,000 or more       Less than
offence                                 more and less        and less than        and less than        £5,000
                                        than £500,000          £100,000              £20,000

                    Starting point     Starting point       Starting point    Starting point based Starting point
                    based on:          based on:            based on: £60,000 on: £12,500          based on:
                    £750,000           £300,000                                                    £2,500

Fraudulent from     Starting point:    Starting point:      Starting point:
the outset,         5 years custody    4 years custody      2 years custody
professionally      Range: 4-7 years   Range: 3-5           Range: 18
                    custody            years custody        months-3 years
planned and                                                 custody
either fraud
carried out over
a significant
period of time or
multiple frauds

Fraudulent from     Starting point:    Starting point:      Starting point:    Starting point:     Starting
the outset and      4 years custody    3 years custody      15 months          12 weeks custody    point:
                    Range: 3-7 years   Range: 2-4           custody            Range: Community    Community
either fraud        custody                                                                        order (high)
                                       years custody        Range:             order (high)-12
carried out over                                            18 weeks-30        months custody      Range:
a significant                                               months custody                         Community
period of time or                                                                                  order (low)-6
multiple frauds                                                                                    weeks custody

Not fraudulent      Starting point:    Starting point:      Starting point:    Starting point:     Starting
from the outset     3 years custody    2 years custody      36 weeks custody   6 weeks custody     point:
                    Range: 2-6 years   Range: 12            Range: 12 weeks-   Range: Community    Community
and either fraud                                                                                   order
                    custody            months-3 years       18 months          order (medium)-26
carried out over                       custody              custody            weeks custody       (medium)
a significant                                                                                      Range:
period of time or                                                                                  Fine-
multiple frauds                                                                                    Community
                                                                                                   order (high)

Single                                                      Starting point:    Starting point:     Starting
fraudulent                                                  26 weeks custody   Community order     point:
                                                            Range: 6 weeks-    (high)              Community
transaction,                                                                                       order (low)
                                                            12 months          Range: Fine-18
fraudulent from                                             custody            weeks custody       Range: Fine-
the outset                                                                                         Community
                                                                                                   order
                                                                                                   (medium)

Single                                                      Starting point:    Starting point:     Starting
fraudulent                                                  12 weeks custody   Community order     point:
                                                            Range:             (medium)            Fine
transaction, not
                                                            Community order    Range: Fine-6       Range: Fine-
fraudulent from                                             (medium)-36        weeks custody       Community
the outset                                                  weeks custody                          order (low)

            Additional aggravating factors                              Additional mitigating factors

                                                        2
 1. Number involved in the offence and role of the       1. Peripheral involvement
 offender                                                2. Misleading or incomplete advice
 2. Use of another person’s identity

The presence of aggravating or mitigating factors of exceptional significance may indicate
that the case should move to a higher or lower level of seriousness.
1.3     Magistrates’ Court Sentencing Guidelines
Magistrates’ Court Sentencing Guideline 2008, see www.banksr.com Guidelines tab. The
Guidelines mirror the new Fraud guidelines above.
1.4     Compensation Guideline case
R v Stewart 1987 85 Cr App R 66 LCJ So far as compensation is concerned, where no
immediate custodial sentence is imposed, and the amount of overpayment is below, say,
£1,000 or thereabouts, a compensation order is often of value. This will usually only be the
case when the defendant is in work. Counsel for the Crown must be equipped with the
relevant information to enable the court to come to a proper conclusion on this matter. (Since
1987 the value of money has fallen considerably.)
1.5     Compensation Will the department attempt to recover the sum? Duty to ascertain
R v Stewart 1987 85 Cr App R 66 LCJ It may well be advisable as a first precaution for the
court to inquire what steps the department proposes to take to recover its loss from the
offender. Counsel for the Crown should be equipped to assist the court on this aspect of the
matter.
1.6     Cases
R v Carter 2010 EWCA Crim 443 D pleaded to making a false statement to obtain benefit.
He applied for council tax benefit and declared he had no other source of income other than
incapacity benefit and £2,300 in 2 bank accounts. In fact he had £16,000 in savings. As a
result he received £834.63 over 1 year 7 months to which he was not entitled. D was 48 and
of good character. Held. A deterrent sentence is needed. Taking into account the plea, his co-
operation, his character, his age and that the money was repaid, £1,000 fine not £2,500 (with
£500 costs).
R v Liu 2010 EWCA Crim 463 D pleaded to failing to notify a change of circumstance. In
2000, she obtained income support for herself and her two children on the basis that she had
no other income. That claim was lawful. In 2003 she obtained a low-paid cleaning job using a
false name, a false date of birth and false National Insurance number. As a result she was
overpaid nearly £30,000. D was 39, with one 5 year-old shoplifting offence. She was trapped
in an abusive marriage. Her husband was prosecuted for domestic violence. He made
unreasonable financial demands on her, and she struggled to support her children. D had no
settled home and was squatting with a series of friends. She had lost her self-respect and her
self-confidence. Held. The Judge took too high a starting point, made insufficient discount for
the plea, failed to adjust adequately for a) the personal mitigation and b) the fact that the
claim was originally legitimate, and erred in not suspending the sentence. Immediate
release.
The appropriate approach is to have regard to the guidelines and ignore the old cases.
However, the cases can be found in the 4th edition of this book save for R v Mankowski 2009
EWCA Crim 1109 (4 months suspended) Ed.




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