A report published this month by France’s official rights ombudsman, the défenseur des droits, offers an insight into the arbitrary actions of benefits agencies against those it suspects of fraud. Ombudsman Jacques Toubon, who heads the body tasked with defending citizens’ rights, details the cases of people, often the poorest in society, who were wrongly hounded for alleged benefits fraud. In many cases, those accused are not given the opportunity to defend themselves, while others are even unaware that they are the subject of an investigation. In numerous examples, the social benefits administrations wrongfully demand relatively huge sums in backpayments, even when the proof of the innocence of those targeted has been provided.
The ombudsman’s report offers grim reading, demonstrating how people depending in all honesty on administrations designed to provide social protection can become innocent victims of the system, caught in an over-zealous crackdown that rides roughshod over basic citizens’ rights.
Enlargement : Illustration 1
The cases cited in the report, entitled "The fight against benefits fraud: at what cost for the rights of users?", were all only resolved after the intervention of the ombudsman. One of these was Carmen (the last names of those who fell victim to the abusive treatment are withheld), who put in a request to receive what is called a “solidarity for the aged” allowance, (allocation de solidarité aux personnes âgées, or Aspa) for which she was fully entitled. However, the pension fund administration noticed that she had not declared in the documents in which she made her request that she held 27.78 euros in a special savings account, which had remained untouched for three years. The omission led to her request being dismissed as a fraudulent claim, before she was finally granted the allowance.
Another was Warda, who applied for a widow’s allowance. She made her official request within the proper time delay following her husband’s death. But the administration department in charge of processing the request raised doubts over the authenticity of the stamp marks on some of the official documents she submitted and rejected her claim on the grounds of fraud. Again, it was after the ombudsman followed up her case that the documents were authenticated and her request was successful. Another case involved Sofia, whose financial conditions allowed her to receive the RSA, a minimum welfare benefit for the unemployed. But the benefit was not enough to live on, and her parents provided her with extra funds, sent to her by bank transfer. Sofia did not know that she should have declared the financial help from her family and when it was discovered her benefits were reduced even before a magistrate appointed to rule on her case had delivered a verdict.
The number of such cases has multiplied since the introduction of a reform of the benefits system in 2004. Successive governments have led a fight against “social benefits fraud” , with the crackdown driven by a national umbrella committee that oversees regional agencies. The different social benefits agencies, from that in charge of family allowances, the CNAF, to that in charge of pensions, have been encouraged to beef up their control of beneficiaries. In his report this month, the rights ombudsman denounced what he calls “a policy of target figures” in a reference to the zeal of the crackdown.
The names of those allegedly receiving benefits through fraudulent applications are grouped together on a national centralised databank, sometimes with disregard to a person’s rights. An individual can be recorded on the files without knowing, and there exists no ‘bank account confidentiality’as often cited in tax fraud cases. A circular dated August 31st 2012 recommended that the anti-fraud services “target people born outside the European Union”, and while many of the allowances are universal (such as family allowances) and involove all social categories, the ombudsman says that those who who are “indirectly” the most hounded are “the beneficiaries in the most precarious situations”.
Karim has worked all his life in France, and chose to spend his retirement in Algeria. His health worsened and his son Sofia was appointed as his guardian. From September 2012, his pension allowance was suspended because the pension fund administration observed that he had made no payments for healthcare in France. Despite documented proof that Karim was still alive, his pension continued to be blocked until Sofia physically brought his sick father to the administration offices.
René was the victim of a similar set of events; he too had decided to spend retirement abroad, and suspecting that he was deceased despite receiving attestations to the contrary, the administration suspended his pension which would last over a period of five years. His son, who continued to live in France, battled to prove his father’s pension was unjustly cut off, and would finally obtain a backpayment sum of 49,782 euros. But by the time the administration recognised it was in the wrong and the payment was made, René had died.
A number of people who are considered to be defrauding the benefits system are penalized without being notified. In the case of Monique, her application for a elderly person’s homecare allowance was blocked, without explanation, for two years and three months because of an ongoing investigation into her suspected fraud. Her application was finally approved after the ombudsman’s intervention, when she received backpayments for the period she should have received the allowance.
Adel and Karine were both out of work and receiving unemployment benefit when the payments were suddenly cut off in January 2015. It was only several months later that they discovered they were suspected of fraud and an investigation was launched by the national job centre agency, Pôle Emploi. They learnt of this in September 2015, when they were contacted for the first time and asked to provide further proof of their situation.
In the case of Njah, he was accused of carrying out paid work while receiving the RMI minimum allowance for the unemployed. The administration wrote to him demanding that he refund a total of 25,923.86 euros, and maintained the demand even after he had provided the proof that he had been the victim of identity theft. It was only after a lengthy litigation that the case against him was finally dropped.
The ombudsman underlined that the benefits agencies often ignored the justifications of those they suspect of fraud. Virginie received a letter from the family allowance administration, the CNAF, warning her that it was preparing to bring action against her for suspected fraud, and informing her that she had one month to provide evidence in her defence. But in the same letter announcing this, she was told that her name had already been recorded on the national register of those who had defrauded the system, and she would remain on the list for a period of three years. Similarly, Julien was notified by the CNAF that his name was included on the register because of a document he had failed to provide. Despite the fact that the administration finally accepted this was not an intentional omission, it refused to remove his name from the register, which it finally did only after the ombudsman intervened.
The true cost of social benefits fraud
Under French law, the benefits administrations are theoretically prohibited from removing all of a person’s allowance payments, whatever the case against them. Two articles of the labour law state that a fraction of allowances must remain available, called “the remainder to live”. In other words, the minimal amount for a person’s survival.
Jean was notified by the Pôle Emploi job agency in March 2016 that he was to refund 1,950 euros it argued he had unduly received after making false declarations of his situation, and seized the sum directly, leaving him with just 4 euros to see through the rest of the month. The ombudsman succeeded in convincing Pôle Emploi that the sum be given back to Jean, to allow him to defend his case or to negotiate a calendar of staggered refund payments. In his report, ombudsman Jacques Toubon cited an observation by Jean-Michel Belorgey, member of the Council of State, the supreme court of administrative justice, in 2008, when he was the president of its reports and studies department. Speaking about the zealous actions of benefits agencies in recovering sums they believe were unduly paid, he stressed that, “it is not considered that fraud constitutes a sufficient motive for condemning families or individuals to eviction [from their homes], to fasting or to not being able to buy their growing children shoes that fit their feet.”
“One cannot systematically refuse to the most frail their right to make a mistake when one recognises it for others,” added Belorgey.
The French government is currently preparing a law to recognise this “right to make a mistake” on the part of businesses. Prime Minister Édouard Philippe argues that companies are too often faced with administrative complexities, even persecution, when they have unintentionally omitted something from their yearly accounts. Toubon argues that the same right should be given to ordinary citizens in their accounts with benefits offices.
The case of Luisa, cited in Toubon’s report, is emblematic of an overzealous hounding by an administration. Receiving both the RSA and family allowance benefits, she was notified that she had unduly received a total of 12,605 euros. Before the amount was officially considered to be the result of fraud, she was summoned to pay back the sum along with a fine of 313 euros, and the CNAF announced it was bringing a legal suit against her. The case was heard in court, which found her innocent of all the accusations against her and annulled the refund and fine demanded of her. Nevertheless, the CNAF continued to pursue her for repayment of the sums, arguing that she had not contested the demand within the required time limit.
The catalogue of abusive actions is remindful of methods employed in anti-criminality campaigns, from numbers targets to one-sided investigations. The anti-benefits fraud crackdown is led publicly with high-profile campaigns by politicians, and on the ground by administrations encouraged to meet target numbers of cases, at the price of the rights of beneficiaries who are, as a whole, the subject of suspicion.
The issue of benefits fraud has long been leant a mythological dimension by the rhetoric of many politicians, from that of the far-right, with its regular refrains, to that of the conservatives and socialists. The fight against unemployment is often concentrated on the idea that the jobless profit from their situation, while France’s budgetary problems are largely put down by some to the cost of benefits received by supposedly cheating foreigners. But in fact, there is a gulf between the fantasised enormity of the problem of benefits fraud and the real figures of what it represents.
In the preamble to his report, the ombudsman presents the latest official estimation of the cost of benefits fraud as provided by France’s Delegation for the Fight Against Fraud, the DNLF. For the year 2015, benefits fraud represented 3% of the value of all cases of fraud recorded. In the precise case of family allowance benefits, the CNAF found that in 2016 cases of fraud involved just 0.36% of all those who received family allowance benefits.
In all, the total cost of benefits fraud in 2015 amounted to 672 million euros, which was about 30 times less than the total sums of tax fraud recorded that year, which amounted to more than 21 billion euros. But the disparity between the treatment of those suspected of benefits fraud and those, often very wealthy, individuals suspected of tax fraud is flagrant, as demonstrated by the above-cited case of Jean, accused of defrauding the unemployment benefits administration of 1,950 euros when compared, for example, to the treatment of tycoon Bernard Tapie, who was found to have unduly received more than 400 million euros from the public purse in his claim against the former state-owned bank Crédit Lyonnais (an award made with the complicity of the highest authorities).
The cases highlighted by the ombudsman are typical of those so relatively insignificant in terms of their individual financial value that they remain within the otherwise unreported exchanges between citizens and administrations. But in far graver cases of fraud, conflicts of the same nature involving high-profile individuals, often appear too significant in value to be dealt with in the same crushing manner. Typically in these, the accused are able to defend themselves in television interviews, employ a battalion of lawyers, denounce a campaign of persecution, and demand that their human rights and the legal presumption of a suspect’s innocence until found guilty be respected.
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- The French version of this article can be found here.
English version by Graham Tearse