East Devon District Council

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Policy Council Tax and Benefits Penalty and Prosecution policy

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3. Specific policy areas

1- In a case where a customer has either knowingly made a false statement, or has knowingly withheld information to obtain or retain entitlement to a Council Tax Support or Housing Benefit payment, the decision to either prosecute, or alternatively offer a penalty, is fundamentally determined by the severity of the offence which is measured against a number of factors including the financial losses that have been incurred as a result of a fraud.

2 - Each case will be looked at individually to decide what action, if any, is appropriate under this policy. This decision will be based upon the The Code for Crown Prosecutors which sets out the general principles prosecutors should look to when they make decisions on cases.  The tests are known as the   the Evidential Test and the Public Interest Test.

3 - The Evidential Test

This test considers whether:

  • There is sufficient evidence to provide a realistic prospect of conviction, and
  • The evidence is reliable, credible and admissible.

4 - The Public Interest Test

The Council will consider public interest factors to determine whether or not to offer a penalty, prosecute or take no action. It is unlikely to be in the public interest to pursue prosecution if the chances of securing a conviction are low or where it is likely that in the circumstances the court would be unlikely to impose a sanction other than an absolute or conditional discharge.

If the evidential test is passed but there are public interest factors which mitigate against a prosecution, then it is possible that an out of Court penalty may  be offered.

5 - Circumstances in which the Council is more likely to prosecute

Any case meeting one or more of the following criteria is likely to result in the Council pursuing prosecution proceedings from the outset:

  • The alleged offence was committed whilst the alleged offender was under a relevant order of the Court, for example, a Probation or Community Order.
  • Any previous known incidence of fraud, such as Cautions, Administrative Penalties or successful prosecutions.
  • The person has been offered and declined the option of a penalty. The court must be notified that the alleged offender has declined this offer.
  • Where the overpayment or excess reduction is in excess of £2,000.
  • The alleged offender is in a position of trust, for example, a Council employee or an Elected Member.
  • There is evidence that the alleged offence was premeditated.
  • There is evidence that the alleged offence was carried out by an organised group.
  • The fraud appears to involve a collusive landlord or employer. Cases involving collusion should be regarded as serious fraud and prosecution may be appropriate irrespective of the amount of overpayment.

6 - Circumstances in which the Council is less likely to prosecute or impose a penalty

It is probable that the Council will not wish to pursue further action in cases where, although there is sufficient evidence to take further action, the alleged offender:

  • or any partner, has a significant degree of physical or mental infirmity, such as a terminal illness, severe clinical depression, hearing/sight/speech problems, learning difficulties or extreme old age;
  • has made a voluntary disclosure of the alleged offence before the Council had any suspicions regarding the validity of their entitlement to a Council Tax discount or exemption, a Council Tax Support under the Council Tax Reduction Scheme or their Housing Benefit entitlement. This does not include disclosure during a verification visit or completion of a review form.
  • was driven to commit the offence by a difficult domestic situation.
  • if prosecuted there exists the possibility of mental injury to a third party, for example where an adopted or fostered child would be made aware of their true status.
  • could be dealt with more effectively without redress to proceedings, for example due to age or immaturity, although youth in itself is not a good enough reason not to instigate proceedings.

7 - The Council will also take into consideration the suitability of evidence obtained and any failures or delays in the investigation, or in Council Tax or Benefits administration. Examples would be when the application form has been wrongly completed by an officer of the Council or when there has been a failure to identify obvious flaws in a statement or document.

8 - The Council will apply the Code for Crown Prosecutors fairly, independently and objectively in each case.  Personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness will not influence its decisions. Nor will the Council be affected by improper or undue pressure from any source and will always act in the interests of justice and not solely for the purpose of obtaining a conviction.

When this policy has been published and will be reviewed

Policy published 23 October 2013 (due for review by 1 November 2016)