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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69359
Experience:  Over 5 years in practice
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A Friend of mine has been charged with benefit fraud , he is

Customer Question

A Friend of mine has been charged with benefit fraud , he is now due in court soon on 7/Jan , he is very worried , the amount involved is more than £50,000 fifty thousands pounds from year 2007.
They are accusing him of not declaring a capital.
His story briefly, is as follows:
I came to UK in 1993, I started studying a master degree and then after I got the master and started doing the MPhil degree.
My father transferred all his life savings to my account so I can use it during my higher education study in the UK, but I also have two other brothers which they also wanted to come and study in the UK, so I only had a particular share of this money which is almost the third of it and not more than that.
My study was supposed to finish in few years, but it was extended from 1993 to 2008 due to my Psychological situation which was badly affected by the war on Iraq and the death of my friends and some members of my family there.
During this time, I spent most of the money and I was told by my family to stop spending any more of it as I used much more than my allowed share.
The remaining of this money was kept in my account because I was the first to come to this country and I was responsible for bringing my bothers, father and mother from the destroyed Iraq and sponsoring them, the money remained in my account until I was told not to use any more of it.
Over than 10 years I was trying my best to find a job , but due to my lack of experience and despite having a high qualifications , master degree and MPhil , and due to a low market of construction in the UK , I was not able to find a job despite hundreds of interviews.
In 2007 I transferred the money into my brother's account.
My brother was trying to help me, so he put the money into a joint account between himself and my wife so that I have access to some money that I can use to start doing any business.
The money in this joint account belongs to my brother who was trying to help me , also my father was transferring money to this account as well trying to help me doing a business, he also some times was giving me money cash and I used it to buy and sell computers and put the money back into that account , the money in that joint account reached £90,000 pounds
I started looking for any opportunities , so for example, I was thinking about buying damaged properties from auctions and refurbishing them and re selling them, so I spoke to the British islamic bank and I showed them that I have some money to start a business and I needed their support to get a loan from them , I also tried buying and selling computers.
In July 2010, I actually stopped the JSA and changed to a self employed, thats when I actually started to make the first profit ever, as I before that was not making any profit and some times even losses and I have a family and I needed the support of the JSA and at that time I never had any information about the low income support ( working tax credit ) .
I could not buy any damaged property but I started a computer business and I changed it to self employed.
My brother, before travelling to Saudi Arabia, took most of his money back from the joint account to his sole account, because he was traveling to Saudi Arabia , a month later,I received a letter from housing benefit and JSA people about this case accusing me of not declaring a capital while at that time I was not on JSA and my brother took all his money already.
My mistake that I understand is that , I did not declare this money which was not actually my money and I though of it as a credit card money.
I already have credit cards which I never had to mention anything about.

Question are as follows:
1- what do you expect the sentence to be ? taking into account that I have family and kids.
also taking into account that JSA, housing benefit and council tax benifit people want more than £50,000 back from year 2007.
2- If there will be a prison sentence , can I appeal and be outside prison while applealing ?

3- While during the appeal , can I leave the country and go abroad ?
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
So, in short, you had over £90k whilst claiming a means tested benefit?

And they are saying the over payments is £50k plus?

Is that right?
Customer: replied 3 years ago.

yes that is correct ,,,

Expert:  Jo C. replied 3 years ago.
If this is a S111 Social Security Act matter then realistically you are at risk of custody. There must have been multiple fraudulent transactions and if this sum was in your account before the claim then they will be saying that this was a fraudulent claim from the outset.

On your specific points

1 The starting point is 18 weeks customer and the range is 6 weeks custody to a sending to the Crown Court. Probably this will be going to the Crown Court which is generally bad news with benefit frauds. Its unusual actually as resulted are generally better there but benefit fraud is always emotive. Since the custodial period recommendations are under one year the court would have to consider suspending the sentence but your child care commitments will not be a consideration of themselves

2 If this is a sentence from the Crown Court then you have to get leave to appeal and there is only one ground and that is that the sentence is manifestly excessive. Thats a high test. You can apply for bail pending appeal.

3 It depends on the conditions of your bail. Realistically if you have links to another jurisdiction they will either refuse bail or grant bail with a condition of residence and surrender of travel documents.

Sorry but thats your position.
Customer: replied 3 years ago.

I understand committing a fraud should be punished, but why wouldn't they consider it as ignorance and a mistake not to inform them about a capital that is not belonging to my self, I have evidence that this money belongs to my father who was obliged to give me access to this money so I can pay for my university expenses and I spent more than my share of it and the remaining of this money still belongs to my father.


The evidence that I have is actually a letter from a British court which was dealing with my brother's visa refuse case which resulted in granting a visa to my brother. The latter clearly confirms that this money was being spent on my as well as my two brothers higher education study .

Also,I would like to inform you, that the case is going to Magistrate court and not crown court.

I can show clearly that the money which was in this account ( the joint account between my wife and my brother which had the capital they are talking about and accusing me about ) belongs totally to my brother. As I can show that this money was drawn totally to my brother's sole account twice , is not this an evidence that this money is my brother's money ? .

Questions are as follows:

1- How would this affect the sentence ?

2- Can this case still go to Crown court ?

3- What is my chance of being not guilty ?
Customer: replied 3 years ago.
Relist: Other.
she is offline
Expert:  UK-Justice replied 3 years ago.
Thanks for your question. Please remember to rate my answer SMILEY FACE OR ABOVE so that I am credited for my time.

For the avoidance of any misunderstanding, what else do you want to know?
Customer: replied 3 years ago.

UK JUSTICE ONLY


 


Questions are as follows:


1- How would this affect the sentence ?

 


2- Can this case still go to Crown court ?

 


3- What is my chance of being not guilty ?
Expert:  UK-Justice replied 3 years ago.
Do you know if he was charged with the dishonesty offence?
Customer: replied 3 years ago.

For UK JUSTICE ONLY


Charges are as follows:


1- between 12/2008 and 3/2009 commited a fraud in that you dishonestly failed to disclose to the secretary of state for work and penstion information , namely that you held a capital in excess of the prescribed limit which you were under a legal duty to disclose, intending , by that failure , to make a gain , namely , for your self of employment support allowance costrary to section 1 and 3 of the fraud Act 2008 .


2- between 4/2009 and 06/2012 Dishonestly obtained an exemption from a liability to make payment of council tax to Enfield council by deception , namely by falsely representing that you held no capital whereas you held capital in excess of the persecribed limit contrary to section 2(1)(c) and 4 of the theft Act 1978.


3- On or about the 11/2010 with a view to obtaining for yourself a benifit or other payment , namely job seeker allowance under relavant social security legalisation disohonstly made a statement or representation to the departement for work and pention which you knew to be false, namely that you held no Capital or saving whereas you held capital in excess of the persecribed limit contrary to section 111A(1)(a) and (3) of the social security adminstartion Act 1992 .


Expert:  Jo C. replied 3 years ago.
Sorry for the delay. It dropped off my list when you relisted it.

On your specific points

1 Its not going to make much difference if at all. Its not mitigation in this instance.

2 Yes. All thats happened is that this is going to the magistrates for a first appearance. They will consider sending it up and it should be sent up on the sentencing guidelines.

3 Not on the facts you present. You cannot claim a means tested benefits and have £90 k in your account.

I will be delighted to continue with this but please rate my answer.
Jo C., Barrister
Category: Law
Satisfied Customers: 69359
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 3 years ago.

Questions as follows:


1- What is my chance to go to prison and and for how long?


2- what is my chance to get suspended sentence ?


 

Expert:  Jo C. replied 3 years ago.

1 The starting point is 18 weeks customer and the range is 6 weeks custody to a sending to the Crown Court.

2 Fairly good if this is a first offence. Its under 12 months so they have to consider a suspended sentence.
Customer: replied 3 years ago.

what is 18 weeks customer ? does that mean prison ?

Expert:  Jo C. replied 3 years ago.
I'm sorry, thats my dictation software misrecording.

That should have read custody and that does mean prison unfortunately.
Customer: replied 3 years ago.

so how is the starting point is 18 weeks custody and the range is 6 weeks to crown court ?


so is the minimum 6 weeks or 18 weeks custody ?


also what do you mean by the range to sending to crown court? , does that mean I will get more sentencing in crown court after the 18 weeks custody ?

Expert:  Jo C. replied 3 years ago.
1 Not sure what you mean?

2 The minimum is 6 weeks but that can be suspended.

3 You won't necessarily get more at the Crown Court but the Crown Court has the power to give a longer sentence than the magistrates. Generally a sending to the Crown Court means more than 6 months custody but I wouldn't expect that here. They might well keep it at the magistrates if this is a S111.
Customer: replied 3 years ago.

How do I know if this is S111 or not ?

Expert:  Jo C. replied 3 years ago.
It is S111. Those are the charges you mentioned above.
Customer: replied 3 years ago.

FOR JOMO1972



Can I leave the country and defend my self in the court from abroad ? I can appoint a lawer to defend my case in the court when I am abroad.

Expert:  Jo C. replied 3 years ago.
No, you have to attend court. If you don't they will try you in absence and issue a warrant for your arrest.

Depending on the conditions of your bail though you may be able to leave the country as long as you return for your trial and other hearing dates.
Customer: replied 3 years ago.

If I am abroad and they trial me in absence, if I send a letter to court containing my defence story or appoint a lawyer to represent me and defend me , are they going to take this into account ? or they will just give me a maximum sentence ?

Expert:  Jo C. replied 3 years ago.
No, they won't take it into account.

They won't necessarily give you the heaviest sentence though but there may be a bail act charge as well.
Customer: replied 3 years ago.

FOR JOMO1972



What is going during my first day of trial ? its the first trial ever inmy life . Are they going to send me to prison the first day ? are they going to restrict my travel after the trial ?

Expert:  Jo C. replied 3 years ago.
They are not likely to remand you in custody unless you breach bail.

They may restrict your capacity to travel.
Customer: replied 3 years ago.

FOR JOMO1972


What is the maximum sentence he may get ?


Also , if he says that he is guilty , will that help him and reduce sentence ?

Expert:  Jo C. replied 3 years ago.
Maximum sentences are never really very helpful as they are not what is likely to be imposed. However, if this is a S111 then they are probably saying it was a false claim from the start. If the overpayment is £50,000 then the start point is 15 months custody and the range is 18 weeks to 30 months. Those are starting points for an overpayment of £60k which is just over the sums here and that should be reflected.

If he pleads guilty at the first opportunity then he will get one third off his sentence.
Customer: replied 3 years ago.

I thought you said its under 12 months !

Customer: replied 3 years ago.

so does that mean the maximum sentence is 30 months and not under 12 months ?

Expert:  Jo C. replied 3 years ago.
If its under 12 months they would have to consider suspending it.

The maximum sentence is certainly 30 months.
Customer: replied 3 years ago.

if he leaves the UK and does not attend court trial and then comes back to UK few years later.


1- Are they going to arrest him in UK Airport ?


2- Are they going to Arrest him in Europe Airport ?


3- If he comes back to UK and get arrested, what is going to be the


maximum sentence ?

Expert:  Jo C. replied 3 years ago.
1 Yes, they could do that. There would be a warrant for him. Its just whether or not its executed at the airport.

2 Possibly. They can get warrants but probably not.

3 If he has fled the jurisdiction then he is going to prison I'm afraid. There are new guidelines on that point. It would also make a custodial sentence more likely for the main offence. The real risk though is that they will just pick him up and remand him in custody until the trial date.

Also, it would mean that its unlikely that he would ever get bail again.
Customer: replied 3 years ago.

Today he was in Hospital, if tomorrow he does not go to court, can his lawyer attends court for him and finds out for him the evidence they have against him and all other details, also can his lawyer finds out what is going to be the sentence against him ?

Expert:  Jo C. replied 3 years ago.
No.

They would just issue a warrant for his arrest which would only be withdrawn if he has a sick note which actually says unfit for court and that is not likely if they have released him.
Customer: replied 3 years ago.

If tomorrow he says in court ( Magistrate court ) that he is guilty, and then probably there will be another trail may be in crown court or Magistrate , are they going to restrict his travel ?


if he says that he is not guilty, are they going to restrict his travel ?

Expert:  Jo C. replied 3 years ago.

If he pleads guilty then bail conditions are for the Court not CPS but if there is concern that he may flee then they could do that.

If he pleads not guilty then CPS could make representations and given the likely sentencing they will probably want something that prevents him failing to attend.

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