Benefits and the Criminal Law: Fraud and the New Parameters of Welfare Crime

This is the latest version of this item.

Co-authored article that examines new developments that have significantly enlarged the scope of criminal liability in relation to welfare claims and payments. It focuses, among other things, on mainstream criminal law liabilities, including the offence of obtaining property by deception as well as Theft Act offences and new offences and proposals for new anti-fraud powers and penalties under social security legislation. A key proposal that the article examines is a new 'two hits and out' power that enables claimants conviceted of two benefits-related crimes to be taken out of eligibility for welfare support altogether.

The interface between civil recovery and criminal prosecution is explored, highlighting deficiencies in the system of investigation, adjudication, and appeal, and arguing that there is little consistency in prosecution policy. Among other things, the authors argue that the Human Rights Act 1998, operating from October 2000, is likely to have an increased bearing and impact in this area of the welfare and criminal law systems. The Criminal law regime remains complex in relation to welfare fraud, and it has been so since the advent of means-tested benefits in the 1920s and 1930s. 'Honesty' expectations have always been a central theme in this area of the system's administration and regulation, as considered in works like 'Stakeholder Welfare' by Frank Field, and 'New labour and Social Security' by Martin Hewitt. Nevertheless, the complexity of eligibility criteria, coupled with the scope for inadvertent and unintended errors, rather than deliberate fraud and non-reporting of changes in circumstances, has made this area of the criminal justice system fraught with difficulties and scope for injustice.

The article offers a critique of specific areas of the jurisdiction, including the offences in the Social Security Administration Act 1992; tax cerdits, and the powers to impose financial penalties 'alternatives'; and Theft Acts 1968 and 1978 offences, including the offence of obtaining property by deception and the 'mental element' in establishing liability for deception offences.