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In the UK, Employment and Support Allowance (ESA) is a benefit paid to people who are unable to work because of illness or disability. If you are receiving ESA and you are caught working while claiming the benefit, it could result in a penalty or criminal charges. Evidently, this is a very serious situation, so if you or someone you care about is concerned about how much they are working while on ESA or needs help with a pending investigation or prosecution due to working on ESA, getting legal help is important. In this article, we outline what happens if you are caught working while on ESA and answer some of the most common questions we get about offences in this area.
ESA is a financial benefit designed to support those who are employed, self-employed, or unemployed but who are unable to work, or unable to work for enough hours in the week to be able to make a living wage. If you have a disability or health condition that impacts your ability to work, for example, you could claim ESA. ESA is a very important public benefit that helps to ensure people do not fall into poverty.
It is understandable, therefore, that if someone falsely claims that they are unable to work in order to secure this benefit, there will be criminal consequences. Generally speaking, those who are charged with an offence in relation to false claims will be charged with fraud.
This occurs when someone makes a false representation, either dishonestly or recklessly, with the intention of making a gain for themselves or causing a loss to another person. Benefit fraud could be committed under this category if someone makes a false representation on their benefits claim, such as pretending to be unable to work due to illness or disability.
When someone fails to disclose information that they are legally obliged to disclose and does so with the intention of making a gain for themselves or causing a loss to another person, this may count as fraud by failing to disclose information. If someone fails to report a change in circumstances that affects their entitlement to benefits, such as starting work or living with a partner whose income contributes to the household, this may give rise to benefit fraud.
Fraud by obtaining services dishonestly
Obtaining services dishonestly, either by making a false representation or by failing to pay for the services, is another type of fraud. Benefit fraud could be charged under this category if someone claims benefits to which they are not entitled, such as housing benefit or council tax reduction, by providing false or misleading information.
Ultimately, it is down to the Crown Prosecution Service (CPS) to determine which type of fraud offence to charge in a benefits fraud case.
If you are found guilty of benefit fraud, you could have your benefits suspended for a period of time ranging from 13 weeks to 3 years. Even if you are incarcerated, you may still be required to pay back any overpaid benefits. Although the maximum prison sentence for benefit fraud is 7 years, such severe penalties are typically reserved for cases involving significant sums of money and large groups of individuals working together to defraud the system.
Unfortunately, benefits fraud is common in the UK, and it has a considerable negative impact on the public purse, taking funds away from key services like the National Health Service (NHS). It is no wonder, then, that the Department for Work and Pensions (DWP) – the government agency responsible for ESA – has a multitude of ways to detect benefit fraud:
If you are being investigated for benefits fraud, you may not actually know about it. The DWP investigates these claims, sometimes in conjunction with the police, and typically you do not find out that you have been investigated until a charge is made. This is because benefits fraud can be a very difficult crime to prove and the DWP does not want to alert criminals to the investigation prior to them gaining enough evidence to prosecute.
Recognising how important it is that people who want to work are permitted to do some, the government allows you to earn up to £152 per week while on ESA.
Your eligibility for ESA depends on you not working at all, or not working for any more than 16 hours per week. If you do ultimately work more than 16 hours per week, therefore, you may no longer be eligible to receive the benefit.
Remember, ESA is intended to provide financial assistance and support to individuals who are unable to work, or work enough to earn a living wage, due to illness or disability. Working more than 16 hours per week shows that, in fact, you are not so ill or disabled that you need this public benefit.
In addition to losing your eligibility for ESA if you are found to be working more than 16 hours per week, you may be required to repay any overpaid benefits and pay a penalty. Furthermore, if it is determined that you deliberately provided false or misleading information in order to claim or continue receiving ESA while working, you may be charged with fraud and face the possibility of a fine, prison sentence, or both (as outlined above).
The ‘new style’ ESA benefit is a contributory benefit, which means that you have to have contributed to the system via National Insurance payments in order to receive it. The new style ESA may be claimed at the same time as Universal Credit, and it is paid fortnightly (note, however, that you will receive a lower amount of Universal Credit if you are also receiving the new ESA).
Under the new rules for ESA, you are only eligible to receive the benefit if you have been working within the last two to three years and have made (or been credited with) Class 1 or Class 2 National Insurance contributions. It does not matter if you were employed or self-employed in fulfilling this criteria. You must also be under State Pension age and have a disability or health condition that affects whether you can work or how much you can work.
If you are receiving ESA and you wish to return to work, you should contact the DWP and inform them of your change in circumstances. They will be able to advise you on the steps you need to take in order to continue receiving ESA while you are working. It is important to remember that you must not work more than the number of hours allowed while claiming ESA, as this could result in a penalty or prosecution.
Anyone receiving ESA must comply with the rules and regulations set out by the DWP. Not only will this help you avoid penalties or prosecution, but it can also help you to successfully transition back into the workforce while still receiving the support you need. If you are struggling to navigate the complex rules surrounding ESA and work, however, or if you have been charged with fraud, it is important to seek legal assistance as soon as possible. At Stuart Miller Solicitors, we have a team of experienced criminal defence solicitors who can help you understand your rights and options and provide the support you need to resolve any issues you may be facing.
Don’t hesitate to contact us – our friendly and non-judgemental team is here to support you and fight for your rights.
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