The massive press coverage given to Keir Starmer's announcement of new Crown Prosecution Service (CPS) guidance on benefit fraud cases emphasises just how central a political role benefit fraud, and the war on welfare generally, have for the Coalition government's project. That it is purely a political issue, that it is not genuinely an economic or fiscal problem of the slightest significance, is immediately apparent from the latest report from the National Fraud Authority. From a total loss to the public sector from fraud of £20.6 billion, £14.1 billion is attributed to tax fraud as against only £1.9 billion, less than 1% of expenditure, in benefit and tax credit fraud. And this tax loss is only for fraud narrowly defined - tax evasion of the Google/Starbucks/Amazon kind is vastly more extensive.
This much is widely accepted on the left. But, too often, statements pointing this out are accom-panied by a ritual denunciation of benefit fraud - "of course people who defraud the benefits system should be prosecuted" - with no critical examination of the category itself.
I want to argue here that 'benefit fraud' is, like poaching under the Game Laws of the 18th century, both a class crime - one that is committed only by working class people driven by necessity - and a political crime, one created and prosecuted for purely political purposes. The vast majority of benefit fraud is not in fact 'criminal' in any generally recognised sense at all and the left should not be joining in its demonisation.
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So what did the one time liberal and mainstay of the Legal Action Group, Keir Starmer QC, have to say on Monday - at a time, quite coincidentally, when signs of public disaffection with the war on welfare were starting to appear? "It is vital that we take a tough stance on this type of fraud". Radical stuff. He then went on to announce two things: that prosecutors would make more use of charges under the Fraud Act, which carry maximum sentences of up to 10 years, instead of specific charges under social security legislation for which sentences are capped at seven years; and that former guidance that suggested using only the magistrates court, with its limited sentencing powers, where the amount allegedly defrauded was less than £20,000, would be withdrawn. This follows the merger of the former DWP prosecution office with the CPS in April 2012.
How much difference will this make? The new guidance will have some effect, leading to more prosecutions and stiffer sentences, over a period. The publicity will do more - when a routine policy announcement from the CPS fills the front page of the Times, that is tantamount to an instruction from our ruling class, to its junior members and acolytes in the lower reaches of the state, to show no mercy.
From now on then, there will be more families broken up, mothers and babies in Styal, and tabloid denunciations for people who took one chance too many to salvage or improve their lives; all to promote class hatred, salvage the coalition and procure another term as Director of Public Prosecutions for Mr Starmer. For the record, I'm against benefit fraud on an individual level: you'll probably get caught which can ruin your life - and I wouldn't want anyone to give these bastards a chance to do that.
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What then does benefit fraud, this affront to decency and scourge of the nation, look like? The new CPS guidance for prosecuting counsel actually includes a useful and quite accurate typology of benefit fraud - I think we are to understand the four categories as listed in decreasing order of frequency:
1) A failure to declare true financial circumstances
e.g. employment (paid or unpaid, employed or self employed work), household income of any kind, capital (including savings, properties owned, investments, student status (including loans or grants), outgoings over declared (including rent or childcare), nursery care
So you do a bit of work, don't fancy seeing 85% of what you earn go in lost Housing Benefit, and keep it quiet.
Or you help a mate out with his business and he can't pay you properly and slips you the odd twenty.
Or your ex-husband put your name down as joint owner of a property in some shady dealings of his and, since you never want to see him or his again, it doesn't occur to you to declare it.
Or, desperate for a bit more money, you and your childminder overstate the fees charged and split the difference (which is conspiracy and more serious).
Or you're a Polish single parent, can't get work, can't get benefit unless you do work, so you invent some self employment.
Or you get 20K compensation for something or other. Money for the first time in your life. Pay some debts, get a few nice things, spread it out a bit among all your nice new friends and it's gone. So you don't tell the social.
You do it because feel like you've got to. I did it when I was unemployed with a young family - two years undeclared cleaning work for family and friends. It got us through.
Occasionally you get some rich bastard stashing away millions then trying to claim Housing Benefit. Usually a pensioner. There were a few more like that after the property crash. But mostly its desperation and survival in this category.
Or you help a mate out with his business and he can't pay you properly and slips you the odd twenty.
Or your ex-husband put your name down as joint owner of a property in some shady dealings of his and, since you never want to see him or his again, it doesn't occur to you to declare it.
Or, desperate for a bit more money, you and your childminder overstate the fees charged and split the difference (which is conspiracy and more serious).
Or you're a Polish single parent, can't get work, can't get benefit unless you do work, so you invent some self employment.
Or you get 20K compensation for something or other. Money for the first time in your life. Pay some debts, get a few nice things, spread it out a bit among all your nice new friends and it's gone. So you don't tell the social.
You do it because feel like you've got to. I did it when I was unemployed with a young family - two years undeclared cleaning work for family and friends. It got us through.
Occasionally you get some rich bastard stashing away millions then trying to claim Housing Benefit. Usually a pensioner. There were a few more like that after the property crash. But mostly its desperation and survival in this category.
2) Failure to declare true social, personal or family circumstances
e.g living with a partner as husband and wife, children leaving, dependants dying
The last one has me stumped; I have never come across anyone trying to go on claiming for a child after they have died. I think they made that up.
But the others ...
Your son storms out after a row. You don't know if or when he's going to move back in but he keeps coming back for a sub. So you keep claiming for him.
Or your kids are taken into care. You want them back but you've got a dodgy boyfriend so the social workers will only let you have daytime contacts - no overnights. You've still got the expenses so you still claim for them.
Or your boyfriend sort of comes and goes. Good fun when he's around, brings drugs for you and presents for the kids. But you've got two kids and you can't rely on him so you claim as a single parent. BIG overpayment because he used your address to apply for a credit card and you can't prove he wasn't there most of the time.
Or you get divorced but you can't get rid of your ex. He keeps coming round because he can't find anywhere half decent to live so you drift into letting him sleep on the sofa. That neighbour you quarreled with phones the fraud hotline and you're in Court for cohabitation.
The mistake people make is to assume that the complicated messes they make of their lives are their problem and their business. WRONG. If you're poor and claiming a means tested benefit, and especially if you're a woman with children, it's the state's business and you account for it in Court.
But the others ...
Your son storms out after a row. You don't know if or when he's going to move back in but he keeps coming back for a sub. So you keep claiming for him.
Or your kids are taken into care. You want them back but you've got a dodgy boyfriend so the social workers will only let you have daytime contacts - no overnights. You've still got the expenses so you still claim for them.
Or your boyfriend sort of comes and goes. Good fun when he's around, brings drugs for you and presents for the kids. But you've got two kids and you can't rely on him so you claim as a single parent. BIG overpayment because he used your address to apply for a credit card and you can't prove he wasn't there most of the time.
Or you get divorced but you can't get rid of your ex. He keeps coming round because he can't find anywhere half decent to live so you drift into letting him sleep on the sofa. That neighbour you quarreled with phones the fraud hotline and you're in Court for cohabitation.
The mistake people make is to assume that the complicated messes they make of their lives are their problem and their business. WRONG. If you're poor and claiming a means tested benefit, and especially if you're a woman with children, it's the state's business and you account for it in Court.
3) Disability related fraud
e.g. unreported improvement in mobility or diminished care needs (Disability Living Allowance cases), unreported improved capacity to work (Incapacity Benefit and Employment and Support Allowance cases)
This always makes good press. Plenty of hearty scoffing and guffaws to be had over the story of the man claiming DLA who ran a marathon dressed as a parrot, or climbed Mt. Everest - or whatever. The thing is though, even in the most egregious examples, it's not that the person doesn't have a problem at all; they do. The condition might have eased off, they might find they can do more than they thought but, on the inside, they know they're not right. But it's appearances that count and if you don't look disabled enough you can have a problem.
But of course if you've got a proper disability this won't happen to you. Like the woman in her 50's who had three strokes but recovered well enough to potter slowly round the house (although she tended to walk into doors) - prosecuted and convicted. Like the young woman with cystic fibrosis who was investigated, videoed, raided and prosecuted for all the DLA she had received in her adult life - the prosecution was dropped at the last minute and she was dead soon afterwards. Like the man, a single parent with multiple sclerosis, who got a part time job, declared it, but didn't tell DLA - prosecution averted but the DLA stopped. People I knew.
Disabled people today face continual and repeated challenge, disbelief and punishment, by the state and its agents, for their impairments. We have to be ready, all the time, for the next ATOS medical, DLA reassessment, Social Services review of our care package, or argument at the disabled parking space. We internalise the pressure, feeling guilty when we have a good day, rehearsing our defence in an inner monologue. We think twice before demonstrating our real capabilities for who knows who is watching?
And now Mr Starmer wants to make sure we are prosecuted to the full extent of the law if we are held by someone, anyone, in authority to have overstated our disability.
But of course if you've got a proper disability this won't happen to you. Like the woman in her 50's who had three strokes but recovered well enough to potter slowly round the house (although she tended to walk into doors) - prosecuted and convicted. Like the young woman with cystic fibrosis who was investigated, videoed, raided and prosecuted for all the DLA she had received in her adult life - the prosecution was dropped at the last minute and she was dead soon afterwards. Like the man, a single parent with multiple sclerosis, who got a part time job, declared it, but didn't tell DLA - prosecution averted but the DLA stopped. People I knew.
Disabled people today face continual and repeated challenge, disbelief and punishment, by the state and its agents, for their impairments. We have to be ready, all the time, for the next ATOS medical, DLA reassessment, Social Services review of our care package, or argument at the disabled parking space. We internalise the pressure, feeling guilty when we have a good day, rehearsing our defence in an inner monologue. We think twice before demonstrating our real capabilities for who knows who is watching?
And now Mr Starmer wants to make sure we are prosecuted to the full extent of the law if we are held by someone, anyone, in authority to have overstated our disability.
4) Identity or organised fraud
e.g. applying for national insurance numbers, benefits, payments or other financial advantage, using a false or hijacked identity and/or false identity documents in support; forgery and counterfeiting, or an organised attack or manipulation of the welfare payment system such as a cyber attack, internal or contract fraud.
OK, I concede the point; this stuff is straightforwardly criminal. It's also rare and not what the Tories actually mean when they talk about benefit fraud.
I also concede that not everyone who is accused of of benefit fraud is a nice person and upright citizen (although many are). That is not the issue. The issue is that almost everyone accused of benefit fraud is poor, disabled, or both, and that their 'crime' is created and structured entirely by a jealous, intrusive and punitive system of means testing and assessment which is applied exclusively to them.
In times to come, I hope and believe, it will seem as cruel and bizarre to have criminalised and destroyed people in their tens of thousands for behaviour forced onto them by this system, as the deadly struggle between landlords and poachers under the Game Laws seems today.
We must demand, as a partial minimum reform, an unconditional basic income (coupled with a basic disability income) which will eliminate most elements of the so-called crime of benefit fraud. And Keir Starmer has to go.
Two additional points. First it might be supposed that the process of bringing a criminal charge of benefit fraud is surrounded with checks and balances to ensure that justice is done. Surely the case will have been thoroughly and forensically investigated to ensure both that the facts are beyond reasonable dispute, and that the law is being correctly applied? Someone's liberty is at stake and the defendant is legally represented.
In fact the procedure is slipshod and full of error. The amount overpaid (critical for sentencing) is routinely exaggerated. The most basic question - whether the accused was or was not entitled to the benefit they received - is invariably assumed by the criminal court to have been authoritatively decided by the initial, purely administrative decision of the DWP. The best chance for the defendant is to have that decision overturned on appeal by a benefit tribunal. However, criminal defence lawyers do not do benefit tribunals and judges characteristically ignore or dismiss tribunal proceedings. For a full account of the grotesque inadequacies of benefit fraud trials see this excellent and detailed memorandum by Neil Bateman, who has been ploughing a lonely furrow in this field for years.
Second, press accounts of benefit fraud cases (which are always based on material presented to them by the DWP and never investigated) invariably feature only the criminal sentence and fail to mention the wide range of civil sanctions which are imposed by the DWP alongside the sentence - any overpayment is always recovered from ongoing benefit entitlement and receipt of future benefits is now barred, on conviction, for between three months and three years. This includes Housing Benefit so loss of the home almost always follows on conviction.
EDIT: Keir Starmer is apparently not to seek a new term as DPP. Good. I hope his actions come back to haunt him.
I also concede that not everyone who is accused of of benefit fraud is a nice person and upright citizen (although many are). That is not the issue. The issue is that almost everyone accused of benefit fraud is poor, disabled, or both, and that their 'crime' is created and structured entirely by a jealous, intrusive and punitive system of means testing and assessment which is applied exclusively to them.
In times to come, I hope and believe, it will seem as cruel and bizarre to have criminalised and destroyed people in their tens of thousands for behaviour forced onto them by this system, as the deadly struggle between landlords and poachers under the Game Laws seems today.
We must demand, as a partial minimum reform, an unconditional basic income (coupled with a basic disability income) which will eliminate most elements of the so-called crime of benefit fraud. And Keir Starmer has to go.
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In fact the procedure is slipshod and full of error. The amount overpaid (critical for sentencing) is routinely exaggerated. The most basic question - whether the accused was or was not entitled to the benefit they received - is invariably assumed by the criminal court to have been authoritatively decided by the initial, purely administrative decision of the DWP. The best chance for the defendant is to have that decision overturned on appeal by a benefit tribunal. However, criminal defence lawyers do not do benefit tribunals and judges characteristically ignore or dismiss tribunal proceedings. For a full account of the grotesque inadequacies of benefit fraud trials see this excellent and detailed memorandum by Neil Bateman, who has been ploughing a lonely furrow in this field for years.
Second, press accounts of benefit fraud cases (which are always based on material presented to them by the DWP and never investigated) invariably feature only the criminal sentence and fail to mention the wide range of civil sanctions which are imposed by the DWP alongside the sentence - any overpayment is always recovered from ongoing benefit entitlement and receipt of future benefits is now barred, on conviction, for between three months and three years. This includes Housing Benefit so loss of the home almost always follows on conviction.
EDIT: Keir Starmer is apparently not to seek a new term as DPP. Good. I hope his actions come back to haunt him.
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