Cases taken to court by the Department can be by way of criminal prosecutions or civil proceedings. Criminal prosecutions are taken against persons who defraud the social welfare payments system, mis-use a Personal Public Service Number (PPSN), obstruct a social welfare inspector in the course of their duties and employers who fail to comply with their statutory obligations. They are taken either by summary or indictment proceedings. The Director of Public Prosecutions (DPP) is the only person empowered by law to prosecute indictable offences and, technically, he would, in each case, be requested to elect between summary and indictment proceedings.
In practice the DPP has consented to summary proceedings being brought for all indictable offences committed under Social Welfare legislation, unless the Minister for Social Protection refers a case to him with a recommendation to proceed on indictment. The vast majority of cases taken by the Department to date have been by way of summary proceedings as the penalties available for such proceedings are considered to adequately reflect the seriousness of the offences involved. The Court decides the penalty to be imposed.
In summary cases, the maximum penalty provided for is a fine not exceeding €2,500 or a term of imprisonment not exceeding 6 months or both such a fine and imprisonment. The maximum penalty provided for cases taken on indictment is a fine not exceeding 13,000 and/or a term of imprisonment not exceeding 3 years.
(Section 257(a) of the 2005 (Consolidation) Act as amended by Fines Act 2010).
The District Court has, for administrative reasons, restricted the maximum number of sample charges which can be taken to six in any one case.
The maximum penalty provided for cases taken on indictment in the Circuit Court is a fine not exceeding 13,000 per offence/charge and/or a term of imprisonment not exceeding 3 years. There is no restriction on the number of charges in indictment cases.
(Section 257 (b) of the 2005 (Consolidation) Act).
2. DEPARTMENT'S POLICY
The prosecution of offenders is a key element of the Department's control of fraud and abuse strategy. It is the policy of the Department that all cases of fraud and abuse will be considered for prosecution.
3. CRIMINAL PROCEEDINGS
Cases are only submitted to the Chief State Solicitor's Office or DPP for the initiation of prosecution proceedings, where Central Prosecutions Service (CPS) is satisfied that there is sufficient evidence available.
The work involved in assembling evidence is both time consuming and resource intensive. It is important, therefore, that finite resources are aimed at prosecuting the most important cases.
It is equally important that the approach to prosecution is fair and consistent across all regions and sections of the Department.
To achieve these objectives, a set of criteria has been compiled to assist staff in the regions and in scheme sections to determine which cases should be investigated with a view to prosecution.
4. TYPE OF OFFENCES MOST LIKELY TO BE PROSECUTED
- Failure to notify the Department of changes in means, marital status or other circumstances which affect entitlement to payment;
- False statements, declarations or representations for the purpose of establishing entitlement to a social welfare payment or to a higher rate of payment than that to which a customer is entitled;
- Produces a false document to establish entitlement to payment;
- Mis-use of a Personal Public Service Number (PPSN).
- Failure to maintain prescribed records;
- Failure to record, at or before the time of payment of wages, prescribed details in relation to employee's PRSI;
- Failure to remit to an Inspector, PRSI on foot of an IN9 demand;
- Failure to furnish information to an inspector following the issue of IN28;
- Failure to produce records for inspection following a demand on IN32;
- Obstructing Social Welfare Inspectors when carrying out their legal duties;
- Aiding, abetting or colluding with an employee to commit fraud.
5. PROSECUTION CRITERIA
Before deciding whether to investigate or submit a case for prosecution the following factors should be considered:
- The seriousness of the offence.
- The date when the offence comes to light in terms of meeting the time limits for taking the case to court.
- There is sufficient evidence available to bring the case successfully to court.
- Witnesses are available to testify in court.
- The degree of culpability, responsibility and experience of the alleged offender.
- The mental and physical health of the offender.
- The need for deterrence, both personal and general, in relation to particular areas or industries.
- Whether multiple offenders have been detected in a particular work force.
- Whether the offender lives within the jurisdiction.
6. Seriousness of the offence
The Department's prosecution policy ensures that all cases that merit criminal prosecution are forwarded for consideration of legal proceedings. In considering cases of social welfare fraud for legal proceedings the Department applies defined and recognised best practice standards. The criteria examined includes the duration of the fraud, amount overpaid, previous incidences of social welfare fraud etc. It is essential also that all necessary evidential proofs are available. A matrix is used to rate each case over a number of criteria to assist in selecting cases for consideration for prosecution. The purpose of the matrix is (i) to ensure equity across all schemes and regions in the vetting of cases for criminal prosecution and (ii) to ensure that the more serious cases of fraud are sent forward for criminal proceedings.
The matrix measures the gravity of social welfare offences by reference to nine factors. Each factor is scored 1 to 10 depending on the level of the seriousness.
The nine factors are:-
- Duration of Fraud: (the longer the duration the higher the score)
- False declaration made at time of claim: (deliberate intent - applicable in cases where the client concealed means or other material facts at time of application)
- Failed to notify the Department of a change in circumstances: (Claimant or spouse/partner took up employment subsequent to the commencement of the claim, left the State for a period, went into full-time education etc.)
- Amount of overpayment: (the greater the overpayment the higher the score)
- Average weekly non- DSFA income for duration of fraud: (Low score if the weekly income was under the basic supplementary welfare allowance rate, higher if it less than or greater than the minimum wage.)
- Previous fraud overpayment in the last 6 years: (high score if client has previous DSFA overpayments which were as a result of fraud– cumulative in period.)
- Previous DSFA prosecutions in the last 6 years: (scores high if client had previous criminal prosecutions for DSFA offences)
- Making repayments towards the current overpayment/debt paid off: (scores high where the client is not repaying the current overpayment. If s/he is paying back a previous overpayment then the max score still applies. If the debt is paid back in full before summonses have issued a minus 10 figure applies.
- Did income other than social welfare cease before fraud uncovered: Low score if fraud ceased before detection.
7. Time limits for taking the case to court
Proceedings for summary offences must be brought within two years after the date of the offence or within eighteen months from the date on which evidence sufficient to justify proceedings came into possession of the Minister, whichever date is the later. (
Section 272 of the SW (Consolidation) Act 2005).
8. Evidence required to successfully bring the case to court
It is important to remember there are 'elements of fraud' which must be present in order to get a conviction against an offender:-
These are where a person:-
- fails to notify the Department of a relevant change in his/her circumstances, that the person concerned was aware of and had knowledge of their obligation to do so.
- makes a false statement/declaration and knowingly and wilfully conceals a material fact for the purpose of obtaining a social welfare payment.
- makes a false statement/declaration or representation for the purpose of continuing to obtain a social welfare payment to which they were not entitled.
- produces or furnishes a document or information which he/she knowns to be false.
- knowingly uses a PPSN and or identity other than his/her own.
- A criminal prosecution can only be taken where the revised decision is made under Section 302(a) of the Social Welfare (Consolidation) Act, 2005.
To prove a case in court the evidence must be sufficiently strong to enable the Prosecution to prove beyond a reasonable doubt that the accused person was guilty of the alleged offence.
8.2 The availability of witnesses to testify in court
The investigating officer is normally the main witness who may be required to given evidence in court. With the exception of the Department's own documents such as claim application forms, signing dockets and payments printouts, documents such as a EE52 or IN12 are not admissible on their own as evidence in court. Therefore it is important that the persons who signed the EE52 or gave an IN12 statement are in court to testify. These are key witnesses without whom a contested prosecution will, most likely, fail. In most cases such witnesses are compelled to attend court by way of a witness summons. However there may be cases where witnesses are not available by reason of death, serious illness, have left or were never resident in the State. Where it is known a witness will not be available to give evidence and there is no other evidence, such as an admission under caution, to prosecute a case, the case should be investigated for the purpose only of setting up an overpayment.
8.3 The degree of culpability, responsibility and experience of the alleged offender
Factors taken into consideration here should include the age and mental capacity of the alleged offender.
8.4 Mental and physical health of the alleged offender
Prosecutions should not be taken in cases where a person suffers from a mental disability which, in effect, precludes her/him from distinguishing right from wrong. On the physical side persons suffering from a terminal illness should not be prosecuted. In cases where such mitigation is claimed by an alleged offender, medical evidence to support such a claim may, as considered appropriate, be sought.
8.5 The need for deterrence, both personal and general, in relation to particular areas or industries
Prosecutions should be taken where it is discovered that there is a particular type of fraud endemic in a certain area or industry. Where a number of such cases are discovered, all should be prosecuted irrespective of whether the other guidelines, outlined above, are met.
8.6 Multiple offenders in a particular workforce
Similarly, when offences by a number of persons in the same workforce are detected, all should be prosecuted.
8.7 Where offender lives outside the Jurisdiction
It is not the Department's practice or policy to seek the extradition of persons living outside the jurisdiction to answer charges in relation to social welfare offences. Therefore, these cases should not be investigated with a view to prosecution.
9. CIVIL PROCEEDINGS
Civil proceedings are taken to (i) facilitate the recovery of scheme overpayments (fraud and non-fraud) (ii) collection of PRSI arrears or (iii) enforcement of Maintenance Recovery Orders against liable relatives (made by Deciding Officers in Maintenance Recovery Unit. Civil proceedings are only considered in cases where all other available recovery attempts have been unsuccessful. In deciding whether a case should be put forward for civil action, the Department takes due account of the manner in which the overpayment arose, the amount involved, the customers ability to pay, the deterrent value and value for money considerations
9.1 Time limit for taking Civil Proceedings
Normally, the time limit for taking civil proceedings is 6 years from the date of 'the cause of the action' which usually is the date of the Deciding Officer's or the Appeals Officer's decision, but may also be from the date on which a written admission of the debt due was made by the debtor or, having entered into an instalment arrangement with the Department, the date on which the last repayment was made. Civil proceeding for the recovery of overpayments against the estate of a deceased person must be taken within 6 years from the date of receipt of the Schedule of Assets. (
Section 11 of the Statue of Limitations Act, 1957)