As a Benefit Fraud Specialist Solicitor I am often asked to help defend DWP living together allegations. I am also approached by benefit claimants fearful that that they may be deemed as living with a partner when that is not the case.
If I had a pound for each time I am asked when the DWP consider a partner to be living with a claimant...
It therefore seemed about time that I write a blog to help explain to claimants what the situation is, in hope that I may be able to help alleviate at least some of the confusion about when the DWP treat a couple as living with each other for the purposes of benefit claims.
The first thing to bear in mind is that everybody’s situation is very different; of course no two relationships are ever the same, so any HMRC or DWP compliance officer or investigator will make their decisions on a case by case basis.
I often hear people reiterating the 2/3 nights rule. I have clients that have heard that if a girlfriend or boyfriend stays more than 2 to 3 nights per week the DWP will treat them as living together as a couple. I can clarify that there is no firm 2-3 nights per week rule. Let’s put this into context, if the HMRC or DWP disregarded for benefits purposes couples who spend less than 2-3 nights together, this would open up the opportunity for a claimant to be in a relationship with a wealthy person who worked away regularly, which is of course not an unusual situation for a person in the army or working abroad on business for example – would it be right that they claim state benefits?, of course not. Similarly, consider the situation where a single mother starts a new relationship with a man who has his own home, own bills and own children from a previous relationship – this is a classic situation where new couples have to resort to spending time at the claimants home address for childcare reasons – would it be fair for the new partner to immediately be responsible for a share in the household bills or to contribute towards the claimants children?, again, of course not.
Now, having said the above, the number of nights that a person stays at the claimants property is a good starting point and can often be a significant contributing factor for the investigators when deciding whether they should be treated as living together for the purposes of means tested benefits. After all, the commonsense approach is that a person’s main or primary residence is where they spend most of their time. If a partner is using the claimant’s home address as their main or prime residence then their income and savings will be taken into account for means tested benefits purposes, this is likely to reduce the amount of benefits that the claimant is entitled to or even result in a complete cessation of entitlement.
In addition to the number of nights staying at the property the DWP will always look to see whether the other person is registered at a different address. Council Tax is the perfect starting point – is that other person paying council tax at a different property? If so, the assumption is that they are living at the other property as they have registered for a government tax at that address. The electoral roll is an open register and the DWP may look at this to see where the other person is registered to vote. If the other person is not registered for council tax or to vote at another address the investigators may undertake a credit check or enquire with the DVLA whether the other person has taken out finance at a different property or has a vehicle registered at another property. Now, if of course all these checks reveal that the other person is registered elsewhere, this is likely to be the end of the investigation, unless they have other information that causes suspicion – for example, has a neighbour provided information that they are living at the claimants address? If so, they may decide that undercover surveillance is undertaken to try to establish what the true situation is. Surveillance may include watching the claimants property to see when the other person arrives and leaves the property, whether they use a key to enter the property or take the bins out for example, these are things that the DWP will consider when trying to establish whether the other person is treating the claimants address as their own. After all, we don’t have keys to all our friends’ houses, nor do we take their bins out – these are actions the investigators may think consistent with treating the property as your own. Don’t forget however that each person’s situation is different – I have clients who allow the father of their children a key to the property for pick up/drop off reasons and would have no hesitation asking them to take the rubbish out when they leave!
You can see where the difficulty arises where upon investigation, it transpires that the other person is seen to be present at the claimants home more often than anywhere else and is registered for correspondence at the claimants address – it is these situations where the investigators may believe that they have sufficient evidence to suspect that the couple are living together and an interview under caution or compliance interview may be required to put the allegation and findings to the claimant for question.
Interviews under caution can be very daunting and can lead to serious implications. If after the interview the investigator believes that they have reasonable grounds to believe that the claimant has failed to declare that they are living together with a partner and an overpayment of benefits has arisen as a result, a criminal prosecution is likely to follow. It is important that a solicitor attends this interview with you to ensure that you are properly advised and to protect you from the implications that may arise. A solicitor will be able to obtain pre interview disclosure from the investigator (i.e. what the investigation is regarding and any evidence that is available) before the interview to prepare a suspect for the questions that will be asked of them. Don’t forget that an interview under caution will be tape recorded and a transcript of the questions asked and answers given may be used in court as evidence against you.
Lucinda Dore Solicitor can assist any person who is facing an interview under caution for a benefit fraud allegation. In addition, Lucinda is often asked to help claimants who want to declare that their partner is living with them but feel that they have left it too late and fear the implications, knowing that an overpayment will be involved. In these situations Lucinda Dore Benefit Fraud Solicitor may be able to help you voluntarily declare to the HMRC or DWP that an offence has been committed, this allows the situation to be dealt with, without the constant fear of waiting for an interview under caution letter to arrive or surveillance to commence. It is always good mitigation if a voluntary admission of guilt is made.
Lucinda Dore will never judge, but will listen to each client on a case by case basis to help you to overcome a benefit fraud investigation. Having represented benefit fraud suspects for over 17 years, she has dealt with every situation and will defend your case in a robustly yet calm, friendly and professional manner.
For advice and assistance in respect of any benefit fraud matter contact Lucinda Dore today email@example.com 01273030339.