Commentary on Sections Part 5: Social security: General Section 112: Prosecution powers of local authorities
570.Section 112 inserts a new section 116ZA (Local authority powers to prosecute housing benefit and council tax benefit fraud) into SSAA 1992 to restrict local authority powers to bring proceedings relating to housing benefit and council tax benefit offences following the introduction of the Single Fraud Investigation Service. The purpose of the new section is to prepare for the Single Fraud Investigation Service to assume sole responsibility for the investigation of all suspected benefit fraud.
571.New section 116ZA(2) provides that an authority may not bring a prosecution for suspected benefit offences unless certain circumstances apply.
572.Under new section 116ZA(2)(a), where a local authority has already started an investigation in relation to a suspected fraud of housing benefit and/or council tax benefit, the authority may prosecute that offence. Where there is an existing investigation by a local authority, under section 116ZA(2)(b) if it applies to housing benefit, and under section 116ZA(2)(c), if it applies to council tax benefit, the local authority can bring proceedings against the same person for a fraud in respect of the other benefit if necessary. These are subject to the power of the Secretary of State at new subsection (3) to direct that the local authority may not bring proceedings, even if an investigation has already started.
573.Section 116ZA(2) also includes a regulation-making power under 116ZA (2)(d) to prescribe circumstances in which the local authority can bring proceedings for housing benefit or council tax benefit fraud.
574.Where the Secretary of State has given specific authorisation, new section 116ZA(2)(e) provides that local authorities will be allowed to prosecute fraud concerning housing benefit and council tax benefit where the Secretary of State has authorised such proceedings. New section 116ZA(4) allows the Secretary of State to specify a specific authority or type of authority or particular proceedings or description of proceedings in a direction under new subsection (2)(e) or (3).
575.New section 116ZA(5) provides that where, for the purposes of this section, the Secretary of State prescribes conditions to be fulfilled in order for a local authority to bring proceedings, the local authority may only bring proceedings if those conditions are satisfied. New section 116ZA(6) makes equivalent provision to that in section 116A(4) which provides that the Secretary of State may, in prescribed circumstances take over proceedings a local authority has commenced in relation to an alleged benefit offence. This also gives the Secretary of State a power to discontinue proceedings in prescribed circumstances, including where he withdraws his authorisation that the local authority can commence proceedings
576.New section 116ZA(7) makes equivalent provision to that in existing Section 116A(5), which sets out, in the context of prosecutions by local authorities, the different circumstances in which a local authority must adhere to the Code for Crown Prosecutors issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985.
577.New section 116ZA(8) provides a regulation making power to define, for the purposes of section 116ZA what would constitute “an investigation in respect of benefit fraud” so as to trigger subsections (2)(a) to (c) of new section 116ZA.
578.New section 116ZA(9) makes clear that new section 116ZA does not extend to Scotland. This is because only the Procurator Fiscal may prosecute benefit offences in Scotland and new section 116ZA therefore has no application to Scottish local authorities.
579.Subsections (3) to (6) amend section 116A (local authority powers to prosecute benefit fraud) of SSAA 1992. Section 116A applies in the case of local authorities prosecuting benefit fraud other than housing benefit fraud or council tax benefit fraud. Subsection (4) inserts the word “other” after “prosecute” to clarify that the section applies to benefit fraud other than that addressed by new section 116ZA. Subsection (5)(a) and (b) as amended makes clear that a local authority may bring proceedings for benefit offences other than housing benefit or council tax benefit fraud, only if the Secretary of State provides for this in regulations or where the Secretary of State has directed that a local authority may bring those proceedings. Subsection (6) substitutes the word “withdraws” for “gives” in section 116A (4)(b) so language is consistent given the changes made to section 116A so that it applies to limit all benefit prosecutions by local authorities unless the Secretary of State prescribes or directs they may be brought.