What might they do after the interview under caution?

The person who interviewed you will decide what to recommend is done in your case. This recommendation is just one of the things that is used to make the decision about what they will do next.

They could decide to:

1. Do nothing more: this may be because they decide no fraud was committed, or it may be that they think the case would be too difficult or costly to prove.

2. Give you a Civil Penalty of £50 if it is felt to be your mistake that caused the overpayment (but that you didn’t do it deliberately) .

Or, If they have enough evidence to take you to court they could do one of the following:

3. Prosecute you: this involves taking you to a magistrates' or a crown court. The court, not the DWP or council, decides whether you are innocent or guilty of the fraud, and if you are found guilty the judge will decide what punishment to impose. This could be anything from a fine to, in extreme cases, sending you to prison (although this is very rare).

If the fraud section recommend prosecuting you they talk to their legal department who will decide whether there is enough evidence to prove there was a fraud ‘beyond reasonable doubt’. This means that to find you guilty in court they need to have a very strong case which shows that you deliberately defrauded them. It would not be enough for them to prove that it was likely or probable or just that you were paid too much benefit or that you made a mistake. For these reasons the DWP or council’s legal section would need to be sure they have enough evidence to convince a court that you broke the law so that it is worth the time and money to take the case.

Defendants in criminal cases may have to take a means test to see if they have to contribute to the cost of their defence. If you are proved innocent you will get back any money you have had to pay, but not if you are found guilty.

Or, agree not to prosecute you if you agree to admit the offence and accept:

  • A formal caution: this is a written warning that is held on file by the council and will be taken into account if the cautioned person reoffends. If you accept a formal caution you are admitting to the offence. A formal caution would normally only be offered if you have admitted the offence, you have not been accused of fraud before, and the overpayment was fairly small amount. This is only an option for some Local Authorities (the DWP cannot offer you one).
  • An Administrative Penalty (sometimes called an ‘Ad-Pen’): This is a fine of at least £350. If they think you have been overpaid more than £700 in benefits the fine will be 50% of the overpaid amount. The maximum amount is £2000. This fine is added to the amount of the overpaid benefit that you will also have to pay back. If your case was for attempted fraud you can still be prosecuted or offered an Administrative Penalty - the penalty would be £350 if there was no benefit overpaid to you. If you are separately disputing whether you have been overpaid, the fine would wait until that appeal is sorted out.

The rules changed in May 2012, so if some of the fraud they think you have committed happened before then, the penalty may be a lower amount.

This option should only be offered if the overpaid amount is relatively low (their guideline is that it was under £2,000) and this is a first offence. Remember: they should only offer a penalty if they have a strong enough case to prosecute. If you agree to an Administrative Penalty you are agreeing that you committed fraud: although you would not have a criminal record, this would be recorded on your DWP / council benefit record and they could then suspend your benefits for a period of time.

Whether you agree to accepting an Administrative Penalty is your choice – they cannot insist that you pay it. Before you accept: take advice: a penalty could be pretty expensive – and might add up to more than what a court might fine you if they found you guilty – and by accepting a penalty you are agreeing that you committed the fraud.

If you accept a Formal Caution, Administrative Penalty, or are found guilty of fraud in court your benefits may be suspended – see below.

You may be asked to come to a special interview to discuss the option of a penalty.

If you accept a penalty, you can change your mind within 28 days.

An Administrative Penalty is not the same as a Civil Penalty which is a set £50 fine that the overpayments section can impose if someone is overpaid due to negligence (a mistake rather than deliberate actions).

Always try to get advice before accepting or refusing a penalty

They should only offer this option if they believe they have enough evidence to prosecute, and not just to try and get you to ‘admit’ guilt. Refusing a penalty doesn’t automatically mean they will prosecute you and shouldn’t influence their decision about whether to do so. Accepting a penalty does not mean that you have a criminal record or have been found guilty (only a court can do that) but it can mean that it goes on their records that you have admitted fraud. And it means they can suspend your benefit. How much of your benefit you will lose and for how long varies, but for most benefits it means that you won’t get any payments for 4 weeks (as long as it is the first time you have admitted fraud, if it isn’t it could be much longer).

Remember that you might have to pay back any benefit that you have been overpaid, regardless of what happens to the fraud issue.

If they decide to drop the case, or if you refuse a penalty or formal caution, they should let you know as soon as possible what is going to happen. However, in practice you may find that you don’t hear anything if the decision is to drop the case.

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