Discounting a benefit fraud overpayment to account for other benefits not claimed

Photo from the Refugee Council

Photo from the Refugee Council


Say someone claims Benefit A (for example, Income Support) fraudulently for a few years, with an overpayment of £60,000. During that period of time, she would have been entitled (had the claim been submitted properly) to £20,000 in Benefit B (for example, Tax Credits). How should a sentencer take that into account – is the total overpayment £60,000 (being the amount obtained) or £40,000 (the actual loss to the public)?

It seemed to me obvious that in assessing the value of a fraudulent claim, this should be done by the Prosecution assessing the amount overpaid minus the sum that the claimant would have been entitled to, as this represents the total loss. This was the view taken by HHJ Gilbart QC at Manchester Crown Court in 2013 (judgment in CrimeLine). Others didn’t think it was so clear cut though, and the DWP (the prosecuting body in most of these cases) have declined to undertake the relevant calculations in many cases. This has generally been on the basis that it is not relevant to the overall criminality.

Flicking through the recent immigration/criminal, I came across Condomiti [2015] EWCA Crim 806 which is a short judgement, but a relatively interesting one.



Ms Condomiti claimed asylum as an Eritrean in Croydon 2010, stating that she had entered the country with an agent’s passport. This was false, as she used her own (genuine) Italian one. As a result of the claim, she received £4,751.22 whilst her claim was under consideration. When that failed, she applied for a National Insurance Number with her Italian passport, which was (properly) granted.

Meanwhile, she failed to keep in touch with the immigration authorities, being arrested in 2013. She pleaded guilty to fraud relating to the above amounts and pleaded guilty, saying that she was a joint Eritrean/Italian national and had claimed asylum after losing her Italian passport and becoming destitute.

The Judge did not accept that she was Eritrean. It was put at a 5A offence on the Sentencing Guidelines (p29).

The Court of Appeal accepted she was a dual national, and criticised the other ways the Judge had (mis)applied the guidelines. The sentence was reduced to allow for her immediate release



It seemed to me that this was an interesting case for a few reasons –

(1) As I said, that account should be made of benefits that could have been claimed seems evident. But it has not been uncontroversial, so it is good to see it confirmed – “We also do not understand how the judge can treat the benefit as being the sum total of the benefits paid to the applicant in her capacity as an asylum seeker without taking some account of the benefits she would otherwise have been entitled to as an Italian national, ie Job Seeker’s Allowance“ (para 16). This does no more than reflect the Guidelines (at page 32 ‘Legitimate entitlement to benefits not claimed‘ is listed as a mitigating factor), but it is good to have it in black and white.

It says ‘some account’, so it should not be seen as an exact mathematical calculation (in the example in the introduction it may not be enough to take it down to the lower guidelines, but it should always be taken into account. Also, in fairness, in some cases it will be an extremely complicated exercise to work out the exact amount of entitlement (and sometimes it will depend on information that the DWP don’t have, such as the financial situation of a partner).

This should help with persuading the Court that the prosecution should undertake the calculation, in accordance with their duty to assist the Court in sentencing.

(2) Good character is an additional mitigating feature, which should be taken into account when choosing where to place the case in the guidelines. Again, this is a feature in the ‘new’ form of guidelines that is clear on the face of it, but it is good to have it confirmed (para 18). – “It is in our judgment quite plain that the judge misapplied the fraud sentencing guidelines. He stated that the guidelines were predicated upon a person being found guilty after trial with no previous convictions. But they are not. Page 33 of the guidelines makes it perfectly clear that factors reducing seriousness and amounting to personal mitigation include no previous convictions or no relevant recent convictions. It is also clear that a mitigating factor is legitimate entitlement to benefits not claimed, ie a form of set-off based upon what the applicant would have received by way of Job Seeker’s Allowance paid to an EU national

(3) It seems to me that the fact that C was an Italian citizen, and therefore entitled to work in the UK, is a clear aggravating feature.

(4) Lastly, and a small point, when reducing the sentence to ‘time served’ say this “we quash the sentence, we substitute for it a sentence of two months and two weeks or such other period, if that figure turns out to be incorrect, as the appellant has in fact served and it follows that she is to be released forthwith from custody” which is not an order I’ve seen before (although that’s not to say it hasn’t been done). It may indicate an acceptance by the Court of the greater complexity in sentencing.

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