Living Together As Husband and Wife/Civil Partnership (LTAHAW/CP)
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Living Together As Husband And Wife/Civil Partnership (LTAHAW/CP)
Introduction
/ Social Security legislation treats couples who are not married nor in a civil partnership that are Living Together As Husband And Wife/Civil Partners (LTAHAW/CP), in the same way as couples who are married/in a civil partnership. // LTAHAW/CP is not an offence in itself. In Section 112 and Section 111A of the Social Security Administration Act 1992 (SSAA 1992) cases, the false representation will be based on the denial or omission to mention the presence of a partner in the household, or allowing the partner to make such a representation in knowingly allowing cases. In Section 112(1A) and Section 111A(1A) cases, there will be a failure to report a change of circumstance of a partner joining the household. /
/ A LTAHAW/CP case may be passed for investigation to establish:
- the facts which could have a bearing on benefit entitlement and
- whether or not a customer has committed a benefit offence through undisclosed living together.
/ In Income Support (IS) and Jobseekers Allowance (JSA) cases where mortgage interest is payable or in Housing Benefit (HB) and Council Tax Benefit (CTB) cases, a non-dependent charge can be considered if the relationship is not one of LTAHAW/CP. /
/ A LTAHAW/CP situation could affect entitlement to
- Income Support (IS)
- Housing Benefit (HB)
- Council Tax Benefit (CTB)
- Jobseeker's Allowance (Income Based only)
- Widow's Benefit (WB)
- Bereavement Benefits (BB)
- War Widow’s Pension (WWP) – (Veterans Agency)
- New Deal and Training Allowances based on a notional JSA entitlement
- Working Tax Credit (WTC) and New Tax Credit (NTC) - investigated by Her Majesty’s Revenues and Customs (HMRC)
- Pension Credit
- Incapacity Benefit (Short Term) (for beneficiaries over pension age, or benefit is payable at the higher rate)
- Retirement Pension (RP)
- Incapacity Benefit (Long Term)
- Severe Disablement Allowance (SDA)
- Disablement Pension with Unemployability Supplement and
- Carers Allowance (CA).
Circumstances when LTAHAW/CP cannot exist
/ The question of whether or not a couple are LTAHAW/CP is based upon the laws surrounding marriage/civil partnership. In certain circumstances, particularly blood relations, individuals cannot legally marry/form a civil partnership and cannot be living in a LTAHAW/CP situation and these are outlined below. However, Investigators must be aware that there are circumstances where a couple cannot legally marry but can still be in a LTAHAW/CP situation. This can occur, for example, where one of the couple is married or a civil partner to someone else. Whilst the couple cannot legally marry/form a civil partnership due to the laws on bigamy, they are still in a LTAHAW/CP situation. // In the following circumstances a LTAHAW/CP situation cannot exist, as an individual cannot legally marry/form a civil partnership with their:
- mother or father
- adoptive mother or father
- former adoptive mother or father
- daughter or son
- adopted daughter or son
- former adopted daughter or son
- grandmother or father
- granddaughter or son
- sister or brother
- half sister or brother
- aunt or uncle or
- niece or nephew.
/ An individual can only marry/form a civil partnership with those listed below if both parties are aged 21 or over at the time of the marriage/civil partnership and the younger person was never a child in the older person's family up to the age of 18:
- stepdaughter or son
- stepmother or father
- step-grandmother or father or
- step-granddaughter or son.
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The investigation
Raising files (Jobcentre Plus only)
/ When a LTAHAW/CP Programme Protection Query (PPQ) passes through the FRAIMS Business Rules Engine (BRE) a decision is automatically made by FRAIMS as to whether the query is suitable for a fraud investigation. // In cases where :
- it is clear from the outset that both the individual and the alleged partner are in receipt of benefit and declaring that they live at the same address or
- another person is declared on the claim form of one of the individuals suspected to be LTAHAW/CP.
/ Local Authorities (LAs) may wish to take this guidance into account whilst considering local procedures. /
Interviewing the Informant
/ If the source of the PPQ is provided by a person who does not disclose their identity and they want to remain anonymous, that person should be treated as an informant (if they reveal their identity but want to remain anonymous they will be an informant). The person receiving the information from the informant should elicit as much information as possible so that reasonable lines of enquiry can be opened in a subsequent fraud investigation. Any subsequent information provided by an informant (whether recorded on a N1/LA Official Notebook or any other documents) should be retained as unused material and recorded on the sensitive material schedule. Any subsequent information must also be recorded. Under no circumstances should the identity of the informant (if known) be disclosed to the suspect or his legal representatives. // If the source of the allegation or query is provided by a person who is willing to provide evidence to the Investigator as a witness he/she should be asked if they are prepared to provide evidence in the form of a witness statement. Before taking the statement the Investigator should remind the witness that their evidence (and or witness statement) could be disclosed to the suspect and his/her legal representatives and that they may also be required to attend court to give evidence on oath. /
/ If, after being told the above, the witness declines to provide a witness statement on the grounds that they do not want to be identified as the source of the allegation or query, any such information they do provide should be categorised as informant evidence and should be treated as described in the preceding paragraphs.
/ The Investigator should not disclose to the informant or the witness any information about the customer. It is for the informant or the witness to provide information upon which lines of enquiry can be developed and it is not appropriate for the investigator to disclose to the informant or witness confidential information. The Investigator should not task the informant or witness (expressly or by implication) to acquire further information about the customer. To do so could create a Covert Human Intelligence Source (CHIS) relationship which would require authorisation under the Regulation of Investigatory Powers Act (RIPA) 2000 or the Regulation of Investigatory Powers (Scotland) Act (RIP(S) A) 2000 – for further information see the RIPA section of this manual. /
Establishing a link
/ When investigating cases of suspected LTAHAW/CP, it is necessary at the initial stage to establish a link between the alleged partner and the address of the benefit recipient. This will enable further supporting evidence to be obtained via intelligence gathering using Authorised Officer powers conferred by the Social Security Fraud Act 2001, or from the alleged partner’s employer. Decisions on which method(s) to use are dependant on the nature of the case and which of these will be the most effective and least intrusive. // Examples of a link could be:
- the alleged partner’s vehicle has been sighted at the customer’s address on at least two occasions. Initial sightings obtained by ‘drive bys’ are classed as overt surveillance and do not require RIPA authorisation. Details of the information obtained on a drive by must be documented in the N1/LA Official Notebook. This will be sufficient to enable a DVLA registration check to be requested. If this reveals the vehicle to be registered to the alleged partner, then a link has been established
- RIPA-authorised surveillance (see section below on surveillance) has provided evidence to suggest a possible LTAHAW/CP situation exists at the customer’s address
- checks of the Customer Information System (CIS) show the alleged partner recorded at the customer’s address. For example, CIS shows the alleged partner has moved to the customer’s address on a date after customer has claimed benefit
- checks of the Electoral Register reveal the alleged partner registered at the customer’s residence after the customer’s claim to benefit
- the Birth Certificates of any of the customer’s children born after the customer’s benefit claim commenced show the alleged partner as a parent, or
- LA or Housing Association records show the alleged partner as resident at the customer’s address.
/ If the link does establish that the alleged partner is receiving a DWP paid benefit the case must be forwarded to Customer Compliance for continued action. /
Surveillance
(See the RIPA and Surveillance sections of this manual)
/ Surveillance by Jobcentre Plus (JCP)/Local Authority (LA) investigators could amount to a breach of the privacy of those under observation and so could some other evidence gathering activities undertaken during a LTAHAW/CP investigation. A breach of privacy can only be justified where it is in accordance with the law (RIPA/RIP(S)A in surveillance cases), necessary in order to investigate a suspected offence, proportionate to the offence and therefore justifiable. // Before starting any surveillance, Investigators:
- must have RIPA / RIP(S)A authorisation
- should consider the resource implications and
- may require special arrangements, (for example, a second team if the accommodation has several exits).
/ In order for the Investigator to be sure that they know who they are looking for, information could be obtained through a detailed description or, if the customer and/or alleged partner is also claiming benefit, by identifying them as they attend an office (surveillance authorisation would not be required for this purpose). This must not involve calling the individual into the office for the express purpose of identifying them. Details of the description must be recorded. Once the person is identified through this method, the investigator must not conduct any surveillance (including watching them leaving the premises) without RIPA/RIP(S)A authorisation. If the investigator does not know what the person looks like, there will be no point in watching a house with a number of residents. FRAIMS must be noted with any pre-surveillance check, application for surveillance and the results of any surveillance performed. /
/ Surveillance may be necessary to help establish:
- who the partner is
- the alleged partner’s place of employment
- any patterns of behaviour (for example, whether or not they shop together or have a social life together) and
- residence.
/ Surveillance should be carried out on a number of occasions over consecutive days over a reasonable period of time. This is to ensure that there is a living together situation and not just an instance of two people spending a little time in each other’s company. Surveillance alone may prove residence but it does not prove a man and woman/same sex couple are LTAHAW/CP. However, together with other information, surveillance may suggest a LTAHAW/CP situation. See the Evidence Gathering section of this manual. /
Intelligence gathering
(See the Intelligence Gathering section of this manual)
/ The investigator should consider obtaining relevant intelligence information via the:- Operational Intelligence Unit (OIU) (JCP/LAs)
- National Anti-Fraud Network (NAFN) (LAs) or
- London Team Against Fraud (LTAF) (LAs).
/ When making a request to the OIU/ NAFN / LTAF to obtain other information, the investigator must consider and note on file the following points
- whether or not the information being requested is necessary, reasonable and proportionate to the investigation
- whether obtaining the information is the least intrusive means of obtaining evidence
- whether the information being requested will assist in taking the investigation forward, xxx xxxxxxxx xx xxx xxxxxxx xxxxx
- the effect requesting the information will have on any potential prosecution,
- will the time element involved in obtaining the information result in unnecessary delays that may jeopardise any potential prosecution? and
- can the obtaining of information be carried out at the same time as other investigative enquiries, therefore minimising delays?
Obtaining evidence from alleged partner’s employer
/ An alleged partner’s employer may be approached where the PPQ asserts that the alleged partner is working and the Investigator has obtained evidence that suggests a link between the alleged partner and the customer’s residence (see paragraph above on establishing a link). // The type of information that would be useful in establishing that a LTAHAW/CP situation exists may include:
- address held by the employer for the alleged partner
- next of kin details
- salary payment details (perhaps to a joint account)
/ The officer making the approach to the employer must have been authorised under either S109A (JCP) or S110 (LA) to use S109B and S109C powers - see the Section on Secretary of State’s Authorisations, in this manual.
/ In exceptional circumstances, where surveillance cannot be carried out, officers authorised to use Sections 109B and 109C powers may approach an employer for information. [link to FRAIMS guidance – earnings enquiry]. However, prior written authorisation from the Fraud Manager must be obtained and FRAIMS clearly noted as to why surveillance could not be conducted. LAs should follow local procedures. In seeking information, the Authorised Officer must consider and note on FRAIMS the following points, whether or not:
- the information requested is necessary, reasonable and proportionate to the investigation
- the requested information will assist in taking the investigation forward and
- obtaining the information is the least intrusive means of obtaining evidence.
/ The above may apply where the employer is known and the:
- home location is unsuitable for surveillance
- home postcode area is designated as a potentially violent area
- alleged partner has a work pattern that precludes surveillance, for example, they work away from home for periods of time (for example, oil rig workers and lorry drivers) or
- the alleged partner is in the Armed Forces and posted away from home but the employer is known.
/ Where the individual is a shift worker, the Investigator should consider contacting the employer with a general enquiry (not specifically referring to any employee) in order to establish what the working times are for each of their shifts. This will then enable the Investigator, once surveillance has been authorised, to conduct surveillance at suitable times to identify which shift the individual is working. Once this has been established surveillance can be carried out. /
Suspension of benefit
/ LA investigators may, at any point during the investigation, consider requesting a suspension of Housing Benefit (HB), for example, where an undeclared non-dependant is identified. JCP investigators can, once all evidence has been gathered, refer the case to the Decision Maker (DM) for a decision to be made whether to suspend payment of benefit. /top
LTAHAW/CP Interview Under Caution
/ Investigators should review the evidence available to them in order to decide whether an Interview Under Caution (IUC) is appropriate. Investigators should conduct an IUC if there are some reasonable, objective grounds to suspect that a LTAHAW/CP offence has occurred and based on known facts or information the likelihood is that an offence has been committed by the person to be interviewed or the person to be interviewed is complicit in the commission of the offence.If these conditions are not satisfied and it is clear that the case will not progress to sanction, the Investigator should refer the case for Customer Compliance action. /
/ Consider whether it is appropriate to IUC the:
- alleged partner first
- customer first
- customer and alleged partner at the same time, in the office and in separate rooms
- customer in their home as a result of a notified visit or
- alleged partner in their home, as a result of a notified visit.
/ In England and Wales, when interviewing the customer under caution, the investigating officer may put to the customer evidence that has already been obtained from the partner or another third person (be it documentary evidence or otherwise). This could include information that has been obtained from the IUC of the partner. Similarly, evidence obtained from the customer and another third person could be put to the customer’s partner should there be a need to interview the partner. It should be noted that great care should be taken not to recite verbatim the IUC of another person to the customer during the customer’s IUC because this may render those parts of the customer’s IUC inadmissible in criminal proceedings. /
/ In Scotland, a spouse/civil partner is a competent witness but not a compellable one and must be advised that they are not required to give evidence that might incriminate their spouse/civil partner. However, a partner is both competent and compellable. In either case it would be the Procurator Fiscal who decides whether or not to cite them as a witness. Their evidence would then be given in Court. /