After the interview under caution

If your interviewer thinks you may have committed fraud, they may then recommend to their legal department that they prosecute you. The legal section may not take the fraud section’s advice: before taking the case to court they 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. It will rarely be enough to go to court and only produce what you said in an interview and hope that you will be found guilty.

What might they do after the interview?

After the interview (or if you don’t go to it) they could decide to:

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.

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

Prosecute you: this involves taking you to a magistrates' or a crown court. You may be found innocent or guilty of the fraud. If you are found guilty they could fine you up to £5,000, or, in extreme cases they could send you to prison (although this is very rare). If they think the case is serious enough they may decide to prosecute without giving you any other options to avoid it. New court rules mean that 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 you will not get any costs back if you are found guilty.

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

• A penalty: You would have to pay a penalty of 30% of the amount of the overpayment (on top of paying back the overpayment).You could be offered a penalty for each benefit you were overpaid.

Before you accept: take advice, as a penalty could be pretty expensive – and might add up to more than what a court might fine you if they found you guilty.

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

• A Formal Caution: You sign to say you agree you’ve committed fraud and they promise not to prosecute you for it. However, someone else can still prosecute you for a related offence (for example another benefit fraud), and it could be raised again if there is another case later.

Once you’ve signed to accept a formal caution you can't change your mind.

If you are found guilty of fraud in court or you accept a penalty or formal caution, your benefits may be ‘sanctioned’ – see below.

Always try to get advice before accepting or refusing a penalty or formal caution:
They should only offer these options if they believe they have enough evidence to prosecute, and not just to try and get you to ‘admit’ guilt. If you are considering accepting a penalty or formal caution, it can be useful to see a copy of your file (see the guide Step-by-step: preparing for an interview under caution in the menu on the right hand side) to see if they really do have a strong enough case that they could take to court. Refusing a penalty or caution doesn’t automatically mean they will prosecute and shouldn’t influence their decision about whether to do so. Nor does it mean that they have found you guilty: only a court can do that.

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, it could be a few months before you hear anything.

Still not heard?

It can be very unsettling not knowing whether the issue has been dropped or if the DWP/council is going to take action against you. If you want to know what’s going on you can just ask them. But if you’re worried about doing this, weigh up the pros and cons. What would you find most stressful: not knowing and fearing the worst or getting in touch and perhaps having to deal with negative consequences?

If you do decide that you want to know, an advice centre may be able to help you find out.

What about your benefits?

Your benefits should be paid as soon as the DWP/council decides what you are entitled to. You shouldn’t have to wait until the fraud issue is sorted out. See What about my benefits? in the menu on the right hand side for more information.

Even if the fraud section or a court decides you committed fraud, you should still get any benefits you claim and are entitled to, but they may be temporarily reduced or suspended: From April 2010 the DWP or council can ‘sanction’ (ie reduce or stop) your benefit for 4 weeks if the court finds you guilty of fraud or you admit fraud by accepting a penalty or formal caution, even if it is your first offence. (If you are found guilty by a court of fraud more than once in three years, your benefits can be sanctioned for 13 weeks.) There should be a proper decision made about whether to sanction you and you should usually get up to 28 days notice of this decision.

February 2011