Social Security Administration Act 1992

[F1 115A Penalty as alternative to prosecution U.K.

(1) This section applies where an overpayment is recoverable from a person by, or due from a person to, the Secretary of State [F2 or an authority] under or by virtue of section 71, [F3 71ZB] [F2 71A, 75 or 76] above and it appears to the Secretary of State [F2 or authority] that—

(a) the making of the overpayment was attributable to an act or omission on the part of that person; and

(b) there are grounds for instituting against him proceedings for an offence (under this Act or any other enactment) relating to the overpayment.

[F4 (1A) This section also applies where —

(a) it appears to the Secretary of State [F2 or an authority] that there are grounds for instituting proceedings against a person for an offence (under this Act or any other enactment) relating to an act or omission on the part of that person in relation to any benefit, and

(b) if an overpayment attributable to the act or omission had been made, the overpayment would have been recoverable from the person by, or due from the person to, the Secretary of State [F2 or an authority] under or by virtue of section 71, 71ZB, [F2 71A, 75 or 76] above.]

(2) The Secretary of State [F5 or authority] may give the person a written notice—

(a) stating that he may be invited to agree to pay a penalty and that, if he does so in the manner specified by the Secretary of State [F5 or authority], no [F6 proceedings referred to in subsection (1) or (1A) above] will be instituted against him; and

(b) containing such information relating to the operation of this section as may be prescribed.

[F7 (3) The amount of the penalty in a case falling within subsection (1) is 50% of the amount of the overpayment (rounded down to the nearest whole penny), subject to—

(a) a minimum amount of £350, and

(b) a maximum amount of [F8 £5000].

(3A) The amount of the penalty in a case falling within subsection (1A) is £350.

(3B) The Secretary of State may by order amend—

(a) the percentage for the time being specified in subsection (3);

(b) any figure for the time being specified in subsection (3)(a) or (b) or (3A).]

(4) If the person agrees in the specified manner to pay the penalty—

(a) the amount of the penalty shall be recoverable by the same methods as those by which the overpayment is [F9 or would have been] recoverable; and

(b) no proceedings will be instituted against him for an offence (under this Act or any other enactment) relating to the overpayment [F10 or to the act or omission referred to in subsection (1A)(a).]

(5) The person may withdraw his agreement to pay the penalty by notifying the Secretary of State [F11 or authority] in the manner specified by the Secretary of State [F11 or authority], at any time during the period of [F12 14] days beginning with the day on which he agrees to pay it; and if he does so—

(a) so much of the penalty as has already been recovered shall be repaid; and

(b) subsection (4)(b) above shall not apply.

(6) [F13 In a case referred to in subsection (1)] where, after the person has agreed to pay the penalty, it is decided on a review or appeal or in accordance with regulations that the overpayment is not recoverable or due so much of the penalty as has already been recovered shall be repaid.

(7) [F13 In a case referred to in subsection (1)] where, after the person has agreed to pay the penalty, the amount of the overpayment is revised on a review or appeal or in accordance with regulations—

(a) so much of the penalty as has already been recovered shall be repaid; and

(b) subsection (4)(b) above shall no longer apply by reason of the agreement;

but if a new agreement is made under this section in relation to the revised overpayment, the amount already recovered by way of penalty, to the extent that it does not exceed the amount of the new penalty, may be treated as recovered under the new agreement instead of being repaid.

[F14 (7A) [F15 Subject to subsection (7B) below, the Secretary of State and an authority which administers housing benefit or council tax benefit may agree that, to the extent determined by the agreement, one may carry out on the other's behalf, or may join in the carrying out of, any of the other's functions under this section.]

(7B) [F15 Subsection (7A) above shall not authorise any delegation of—

(a) the function of the person by whom any overpayment is [F16 or would have been] recoverable, or to whom it is [F16 or would have been] due, of determining whether or not a notice should be given under subsection (2) above in respect of that overpayment; or

(b) the Secretary of State's power to make regulations for the purposes of paragraph (b) of that subsection.]]

(8) In this section “overpayment” means—

(a) a payment which should not have been made;

(b) a sum which the Secretary of State should have received;

(c) an amount of benefit paid in excess of entitlement; or

(d) an amount equal to an excess of benefit allowed;

and the reference in subsection (1)(a) [F17 or (1A)(b)] above to the making of the overpayment is to the making of the payment, the failure to receive the sum, the payment of benefit in excess of entitlement or the allowing of an excess of benefit.]

Textual Amendments

F1 S. 115A inserted (21.11.1997 for specified purposes, 18.12.1997 for all other purposes) by Social Security Administration (Fraud) Act 1997 (c. 47), ss. 15, 25(1) (with s. 25(7)); S.I. 1997/2766, art. 2(1)

F2 Words in s. 115A(1)(1A) repealed (1.4.2013 in so far as relate to the abolition of council tax benefit) by Welfare Reform Act 2012 (c. 5), s. 150(3), Sch. 14 Pt. 1; S.I. 2013/358, art. 8(c), Sch. 4 (with arts. 9, 10, Sch. 5)

F3 Word in s. 115A(1) inserted (29.4.2013) by Welfare Reform Act 2012 (c. 5), ss. 105(3), 150(3); S.I. 2013/358, art. 5(2)(3)(b)

F4 S. 115A(1A) inserted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 113(2), 150(3); S.I. 2012/863, art. 2(3)(a)

F5 Words in s. 115A(2) repealed (1.4.2013 in so far as relate to the abolition of council tax benefit) by Welfare Reform Act 2012 (c. 5), s. 150(3), Sch. 14 Pt. 1; S.I. 2013/358, art. 8(c), Sch. 4 (with arts. 9, 10, Sch. 5)

F6 Words in s. 115A(2)(a) substituted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 113(3), 150(3); S.I. 2012/863, art. 2(3)(a)

F7 S. 115A(3)-(3B) substituted for s. 115A(3) (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 114(1), 150(3); S.I. 2012/863, art. 2(3)(b)

F8 Sum in s. 115A(3)(b) substituted (with effect only in relation to an act or omission referred to s. 115A(1)(a) which appears, to the Secretary of State or the authority mentioned in that subsection, to have occurred wholly on or after 1.4.2015) by The Social Security (Penalty as Alternative to Prosecution) (Maximum Amount) Order 2015 (S.I. 2015/202), arts. 1(1), 2 (with art. 1(3))

F9 Words in s. 115A(4)(a) inserted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 113(4)(a), 150(3); S.I. 2012/863, art. 2(3)(a)

F10 Words in s. 115A(4)(b) inserted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 113(4)(b), 150(3); S.I. 2012/863, art. 2(3)(a)

F11 Words in s. 115A(5) repealed (1.4.2013 in so far as relate to the abolition of council tax benefit) by Welfare Reform Act 2012 (c. 5), s. 150(3), Sch. 14 Pt. 1; S.I. 2013/358, art. 8(c), Sch. 4 (with arts. 9, 10, Sch. 5)

F12 Figure in s. 115A(5) substituted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 115(2), 150(3); S.I. 2012/863, art. 2(3)(c)

F13 Words in s. 115A(6)(7) inserted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 113(5), 150(3); S.I. 2012/863, art. 2(3)(a)

F14 S. 115A(7A)(7B) inserted (30.4.2002) by Social Security Fraud Act 2001 (c. 11), ss. 14, 20(1); S.I. 2002/1222, art. 2(e)

F15 S. 115A(7A)(7B) repealed (1.4.2013 in so far as relate to the abolition of council tax benefit) by Welfare Reform Act 2012 (c. 5), s. 150(3), Sch. 14 Pt. 1; S.I. 2013/358, art. 8(c), Sch. 4 (with arts. 9, 10, Sch. 5)

F16 Words in s. 115A(7B)(a) inserted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 113(6), 150(3); S.I. 2012/863, art. 2(3)(a)

F17 Words in s. 115A(8) inserted (8.5.2012) by Welfare Reform Act 2012 (c. 5), ss. 113(7), 150(3); S.I. 2012/863, art. 2(3)(a)