Fraudweb District Council Fraud Prosecution Policy
Litigation OfficerIn 2000 the Fraudweb District Council was inspected by the Department of Social Security Benefit Fraud Inspectorate In their inspection of the benefits service and the council generally the Benefit Fraud Inspectorate made the following recommendation:
Prosecution policy
3.235 FWDC has never independently prosecuted a fraudulent HB/CTB case and at the time of the on-site inspection had no plans to do so. In January 2000, FWDC elected members adopted a policy where FWDC, on the grounds of cost, will not prosecute cases itself but will pass cases to the police or BA to investigate and prosecute on its behalf.
3.236 Although this step towards the prosecution of fraudulent claimants is welcome as an improvement on the previous situation, when there was an absence of any policy at all, it does not go far enough. The decision not to prosecute its own cases may raise doubts in the minds of both staff and the public about FWDC’s commitment to a full prosecution policy. Indeed in our discussions staff told us that they are not convinced that there is a will within the LA to operate a prosecution policy.
3.237 We are concerned that no agreement has been reached with BA or the police about the number of cases that they are able to deal with. Although these organisations are keen to foster this relationship they may be unable to progress all the cases passed to them within the time limits. There is no contingency plan to deal with this and current FWDC investigation procedures would not sustain the LA taking forward prosecutions on its own.
3.238 Section 115A of the Social Security Administration Act 1992, inserted by the Social Security Administration (Fraud) Act 1997, introduced a new power to offer an administrative penalty as an alternative to prosecution. The effective use of this power depends on being able to prosecute if the offer is declined.
3.239 In effect this means that before offering a penalty, the LA must prepare the fraud file up to the level required for prosecution. The administrative penalty is not an alternative to rigorous investigation and proper preparation of files for prosecution, in fact it depends on them. By using these powers there are savings to be made. No actual prosecution costs are incurred and some additional income of 33% of the fraud overpayment, in each case, can be generated as a financial penalty.
3.240 FWDC has not made use of the provisions for administrative penalties and will not be able to do so because it does not have any established procedures for the required level of investigation of fraudulent claimants.
This revised policy has been created to accommodate the Benefit Fraud Inspectorate's recommendation as well as to reflect government policy in the areas of best value, active modern service, modernisation of local government and ethical government. The policy has taken consideration of the updated Data Protection Act and the forthcoming Freedom of Information Act.
The role of the Litigation Officer in conjunction with the Benefit Inspection Team leader is to consider what action should be taken in the light of a proven breach of the Social Security Administration Act 1992. The decision of the appropriate action should be based on the Home Office Guidance of the test of public interest (circulars 59/1990 & 18/1994). This test decided if a case should be prosecuted or if alternative action would better serve the public interest.
Public Interest TestThe LO & BITL will see if it is in the public interest to prosecute and will check each case put forward.
A gravity-factor system should be used but only as guidance
The main questions should be:
Has a criminal offence been committed and does the evidence prove this fact with out any reasonable doubt ? If the answer is no then the case should be referred back for further quality checking.
| Question | Gravity Factor |
| Was the offence planned or systematic? | 3 |
| Was more than one person involved? | 3 |
| One point for each multiple of £500 of overpayment (starting £500) | *1 |
| Two points for each previous offence | *2 |
| One point for unpaid overpayment or penalty | *1 |
| Being the identifiable ring leader or the instigator of the offence (where more than person is involved) | 1 |
| Breach of trust (employee or councillor) (1 point for each grade [sc(1)/so(2)/po(3)/co(4)]) A councillor will be treated as a Principal Officer unless a chair then as a Chief Officer) | *1 |
| If the person is in social services care | Minus 4 |
| One deduction point for each 5 years over 65 (65-69 70-75 76-80 etc) | Minus *1 |
| If the person is under 16 years old | Minus 1 |
| If the person is a member of a household which includes children under the age of 16 years old | Minus 1 |
If the person has a gravity factor of 6 or more then they should be referred for prosecution and the case is referred to the DSS Prosecution service. The offender should be informed in writing of the panel's decision.
Home Office circular 59/1990 says that cautioning is in all cases a matter for the police. However, there is some confusion on this matter as the circular refers to crimes where the police have been involved in the investigation. In the case of benefit fraud the police may not be involved and certainly the Benefit Agency will issue cautions. Fraud investigation by other bodies such as the mortgage and credit industries will see cautions being issued. Some police authorities will record these cautions on PNC.
Local authorities do caution for other offences. Trading standards for instance caution and the record is held centrally by the Office of Fair Trading. In the case of benefit fraud the caution is held by the National Anti-Fraud Network and the London Team Against Fraud.
In FWDC's case the caution will be formally given in oral and written form by the assistant director. The person will be told that their benefit review cycle will be reduced to 26 (first offence) or 13 weeks (second offence) and that the council and the benefits agency and other councils will formally note the caution (via the WBS4 form for the DSS and NAFN/LTAF).
If the caution is not accepted by the accused then they must be referred for prosecution.
If the penalty is not accepted by the accused then they must be referred for prosecution.
This offer will be made in writing by the panel.
Where a member of staff has received a caution this policy recommends that an oral warning is also placed on their personnel file.
Where a member of staff has received a penalty this policy recommends that a written warning is place on their personnel file.
Where the member of staff is found guilty in a court of a criminal offence relating to benefit fraud then a disciplinary hearing, based on the offence of bringing the council into disrepute and a breach of trust, (which cuts to heart of the contract) must be convened.