Webster, R. v [2013] EWCA Crim 1714

[2013] EWCA Crim 1714

Case No 201207021/B1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 10th September 2013

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE LLOYD JONES

MR JUSTICE COULSON

MR JUSTICE HOLROYDE

Between

R E G I N ACrown

Between

NATALIE ANN WEBSTER

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Mr P Becker appeared for Appellant

Mr P Wright QC & Mr D Potter appeared for Crown

J U D G M E N T

LORD JUSTICE LLOYD JONES:

[1]On 15th November 2012 in the Crown Court at Liverpool before His Honour Judge Murray, the appellant was convicted of three counts of dishonestly failing to notify a change of circumstances to obtain a benefit contrary to section 111A(1A) of the Social Security Administration Act 1992. Those were counts 1, 2 and 3 on the indictment.

[2]On 4th January 2013 she was sentenced by the same judge, concurrently on each count, to a suspended sentence order, comprising 4 months' imprisonment suspended for 2 years, a 12 month supervision requirement and a 3-month curfew at her home address between 8.00 pm and 6.00 am to be electronically monitored. She now appeals against conviction by leave of the single judge.

[3]It is convenient to refer at the outset to the terms of the indictment. The appellant was indicted on three counts each alleging an offence contrary to section 111A(1A) of the 1992 Act. The particulars of each count were in substantially the same form, save that count 1 related to Income Support, count 2 to Housing Benefit and count 3 to Council Tax Benefit and that the dates specified in 2011 as the end of the relevant period was slightly different.

[4]The particulars of count 1 read:

"Natalie Ann Webster between the 9th day of July 2002 and the 11th day of June 2011 dishonestly failed to promptly notify the Secretary of State for Work and Pensions of a change of circumstances which she knew would affect her entitlement to Income Support, namely that she and her partner Stephen Aspinall, were living together as husband and wife and that the said Stephen Aspinall was working and therefore in a position to provide her with financial support."

It was not the prosecution case that the failure had extended throughout the defined period, rather it was it had occurred at some time or other during that period.

[5]The appellant had been claiming Income Support and Housing Benefit since 1995 for herself and her two dependent children and was paid on the basis of her being a single parent. Police incident logs showed Stephen Aspinall being at the address on 20 occasions between 2001 and 2010, surveillance of her home address from February to April 2011 showed Stephen Aspinall entering her address late at night and leaving the following morning. His work van was kept outside her property on a regular basis.

[6]The prosecution case was that the appellant and Mr Aspinall were living together as husband and wife. Evidence was adduced that he had given the appellant's address as his address to the Passport Office, to DVLA and to his bank and that this was his recorded address for national insurance purposes in 2009. It had also been given as his address during a food poisoning incident.

[7]The prosecution case was that the appellant had dishonestly failed to declare this as a change in circumstances and it was alleged that she had been overpaid in the sum of £45,000.

[8]The defence case was that all the evidence was equally consistent with innocence and there were explanations for Mr Aspinall's name appearing on the documents. The issue for the jury was whether or not the appellant and Stephen Aspinall were living together as partners, and whether Mr Aspinall was in a position to provide financial support for her and, if so, whether the appellant dishonestly failed to report this as a change of circumstances to the Department of Works and Pensions and to Wirral Council and whether she knew that that state of affairs affected her entitlement to income support.

[9]At the close of the Crown case there was a submission of no case to answer. On 13th November 2012 the judge rejected that submission and on the following day he gave full reasons for his decision. The submission had been made, he stated, on the basis that:(i) there was insufficient evidence as to whether the appellant and Mr Aspinall had been living together as man and wife;

(ii) there was no evidence that the appellant would have known that such amounted to being a change of circumstances; and

(iii) there was no evidence of dishonestly. The judge considered that in respect of living together as man and wife and Mr Aspinall being in a position to make financial contribution, there seemed to be quite a lot of evidence from different sources to suggest that he was more than just a casual visitor. The address featured on Mr Aspinall's driving licence, his bank account, his passport and also on reports concerning two incidents of food poisoning. The contact details for one of the children referred to him as "the father". The police had logged 20 occasions between 2001 and 2010 when he was at the address. Two witness statements made by the appellant referred to him as her "partner". Surveillance evidence between February and April showed him as being at the house late at night and in the early morning on several occasions. The judge was satisfied that a jury could conclude that they were living together.

[10]There was evidence that Mr Aspinall's work van was at the appellant's address quite often. If he was present and in work, there was prima facie evidence that he could have made financial contribution. This would in turn have necessitated the need to declare such facts to the authorities and if the appellant knew such a thing, there would be a prima facie case of dishonesty. The judge observed that in reaching his conclusion that there was a case to answer, he had had regard both to the legislation and to the decision of this court in R v Zorlu

[2009] EWCA Crim 589

[11]Mr Becker, who appeared below for the appellant and who appears before us, made complaint in his submission of no case about the drafting of the particulars. In particular, he contended on the basis of Zorlu that it is hard to see how there could be a relevant change of circumstances unless Stephen Aspinall coming to live with the appellant was going in some way to assist her financially. He submitted below that the mere fact that Mr Aspinall was living in the same house did not establish that there was a change of circumstances, which the appellant realised would affect her entitlement to benefit and that she dishonestly failed to notify the change. He further submitted on the basis of Zorlu that unless the prosecution could establish that the partner living with the recipient was going to assist her financially, the case for the prosecution must fail.

[12]The judge in his reasons for the ruling, which he delivered the day after his decision, did refer in passing to Zorlu. However, his ruling was primarily directed at the adequacy of the evidence supporting the counts as drafted.

[13]In summing-up, the judge provided the jury with a document setting out a route to verdict. Before summing-up he invited submissions on the draft document from counsel. Mr Becker, on behalf of the appellant, referred to the averment in each count that Mr Aspinall was working and therefore in a position to provide financial support to the appellant. Mr Becker submitted that the judge should direct the jury that the prosecution had to prove not only that Mr Aspinall was working and in a position of provide financial support but also he had provided financial support. The judge rejected that submission.

[14]As a result the judge directed the jury that they had to be sure of the following matters. First, that Mr Aspinall was working and in a position to provide financial support to the appellant at some time or other of the time specified in the indictment. Secondly, that the appellant and Mr Aspinall were living together as man and wife at some or other of the time specified in the indictment and that Mr Aspinall was in a position to provide financial support. It should be noted that here the judge emphasised that the question was whether Mr Aspinall was able to provide financial support not whether he did provide financial support. Thirdly, that the appellant knew that this was a change in circumstances and regarding it she failed to notify the Department of Work and Pensions in respect of count 1 and Wirral Council in respect of counts 2 and 3. Fourthly, that in failing to notify the authorities the appellant had acted dishonestly.

[15]Before us Mr Becker advances two grounds of appeal. First, he submits the judge erred in rejecting the submission of no case to answer. He submits there was no evidence that Stephen Aspinall was making any direct financial contribution towards the appellant and thus that there was a change of circumstance which the appellant was under a duty to report. Secondly, he submits that the directions given in the routes to verdict document did not comply with the guidance of this court in Zorlu.

[16]In his advice, he submits that the jury were wrongly directed in the routes to verdict document. He submits that they may have been under the false impression that evidence of financial assistance was not required. He submits that Zorlu concluded that without financial assistance from the partner to the recipient of benefit it would be hard to see how there could be a change of circumstances. He submits that the fact that Mr Aspinall may be living with the applicant whilst he was in employment was not the mischief at which this legislation was directed.

[17]The Crown makes the following submissions. First, that the routes to verdict document provided a fair and accurate summary of what the jury had to find in order to convict. Secondly, on the facts there was compelling evidence that the appellant and Mr Aspinall were living as man and wife. The question of dishonesty in not notifying the department or council of the change was one for the jury and the judge had given appropriately the full Ghosh direction. Thirdly, that there was clear circumstantial evidence that the appellant and Mr Aspinall had been living as man and wife together since at least 2009. Fourthly, it is said that the judge was right to direct the jury that the prosecution only had to prove that Aspinall was in a position to provide support financially to the appellant, not that he did so. It is submitted that to do otherwise would be to place too high a burden on the prosecution. It is submitted that the judge was right to reject the submission of no case to answer.

[18]It seems to us, and this has been confirmed by Mr Becker before us today, that the substance of this appeal is whether the particulars of each count in the indictment amount to an offence in law. The route to verdict document reflected the offences as charged in the document.

[19]In order to address this issue it is necessary to set out the relevant legislation.

[20]The offences with which we are concerned are created by section 111A(1A) of the Social Security Administration Act 1992. That provides in relevant part:

"A person shall be guilty of an offence if - (a) there has been a change of circumstances affecting any entitlement of his to any benefit or other payment or advantage under any provision of the relevant Social Security legislation; (b) the change is not a change that is excluded by regulations from the changes that are required to be notified; (c) he knows the change affects an entitlement of his to such a benefit or other payment or advantage; and (d) he dishonestly fails to give a prompt notification of that change in the prescribed manner to the prescribed person."

[21]In order to determine whether there has been "a change of circumstances affecting any entitlement" within paragraph (a) it is necessary to consider the statutory provisions governing entitlement and exclusion from entitlement. The relevant primary legislation is the Social Security Contributions and Benefits Act 1992. Section 123(1) of the Social Security Contributions and Benefits Act deals with Income Support, Housing Benefit and Council Tax Benefit amongst other benefits, referred to in the statute as "income related benefits". It provides for prescribed schemes.

[22]Income Support.

[23]Entitlement to Income Support is governed by section 124(1): Income support. 124 (1) A person in Great Britain is entitled to income support if– (a) he is of or over the age of 16; (aa) he has not attained the qualifying age for state pension credit; (b) he has no income or his income does not exceed the applicable amount; (c) he is not engaged in remunerative work and, if he is a member of a couple, the other member is not so engaged;... (f) he is not entitled to a jobseeker’s allowance and, if he is a member of a couple, the other member of the couple is not, and the couple are not, entitled to an income-based jobseeker’s allowance; and (g) if he is a member of a couple, the other member of the couple is not entitled to state pension credit; and (h) he is not entitled to an employment and support allowance and, if he is a member of a couple, the other member of the couple is not entitled to an income-related employment and support allowance." "Couple" is defined by section 137(1): "In this Part of this Act, unless the context otherwise Interpretation of Part requires– ...

[24]'couple' means– (a) a man and woman who are married to each other and are

[25]members of the same household; (b) a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances..." Section 134 governs exclusions from benefit:

"(1) No person shall be entitled to an income-related benefit if his capital or a prescribed part of it exceeds the prescribed amount. (2) Except in prescribed circumstances the entitlement of one member of a family to any one income-related benefit excludes entitlement to that benefit for any other member for the same period. (3)...."

[26]"Family" is defined in section 137(1):

"(1) family means- (a) a couple (b) a couple and a member of the same household for whom one of them is or both are responsible and who is a child or a person of a prescribed description; (c) except in prescribed circumstances, a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child or a person of a prescribed description"

[27]"Income" and "capital" are defined in section 136:

"136.—(1) Where a person claiming an income-related benefit is a member of a family, the income and capital of any member of that family shall, except in prescribed circumstances, be treated as the income and capital of that person."

[28]Housing benefit.

[29]Entitlement to Housing Benefit is governed by section 130:

"(1) A person is entitled to housing benefit if– Housing benefit. (a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; (b) there is an appropriate maximum housing benefit in his case; and (c) either– (i) he has no income or his income does not exceed the applicable amount; or (ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) below provides is made."

[30]The provisions of section 136 in respect of income and capital also apply in the case of housing benefit.

[31]Council tax benefit.

[32]Entitlement to council tax benefit is governed by section 131:

"131.—(1)A person is entitled to council tax benefit in respect of Council tax benefit. a particular day falling after 31st March 1993 if the following are fulfilled, namely, the condition set out in subsection (3) below and either– (a) each of the two conditions set out in subsections (4) and (5) below; or (b) the condition set out in subsection (6) below. Council tax benefit– (a) shall not be allowed to a person in respect of any day falling before the day on which his entitlement is to be regarded as commencing for that purpose by virtue of paragraph (1) of section 6(1) of the Administration Act; but (b) may be allowed to him in respect of not more than 6 days immediately following the day on which his period of entitlement would otherwise come to an end, if his entitlement is to be regarded by virtue of that paragraph as not having ended for that purpose."

The provisions of section 136 in respect of income and capital also apply here.

[33]Mr Becker places at the forefront of his submissions the decision of this court in Zorlu and in particular the observations of the court at paragraph 15. In that case Mrs Zorlu had been convicted of an offence contrary to section 111A(1A). The indictment in that alleged that she had dishonestly failed to give prompt notification in the prescribed manner of a change in circumstances which she knew would affect her entitlement to income support "namely that her husband...was living with her".

[34]Atkins LJ, delivering the judgment of this court, stated at paragraph 15:

"The prosecution's task was not, of course, to prove that the appellant was living at 381 Bellegrove Road. It was, in the words of the Particulars of Offence, to prove that the appellant's husband, Mr Ramazan Zorlu, was living with her at that address. 'Living with' someone is a very imprecise concept which should not, we think, have been used in the particulars of the indictment. We hope, indeed, that this form of Particulars of Offence under this particular subsection of section 111A of the SSAA 1992 will never be used in the future. The concept of living with someone covers many different situations."

[35]Pausing there, this court, rightly in our view, was critical of the use of the expression "living with". It is imprecise and it does not reflect the language of the statute. However, that particular pitfall has been avoided by the drafting of the indictment in the present case. The averment here is that the appellant "and her partner, Stephen Aspinall, were living together as husband and wife and that the said Stephen Aspinall was working and therefore in a position to provide her with financial support". The averment that they were living together as husband and wife is more precise than the averment of "living with" and is the expression employed by the statute. In our view it is not open to objection.

[36]More significant to this appeal, in our view, is what follows in paragraph 15 of Zorlu:

"Moreover, in our view, it is hard to see how it would be a relevant 'change of circumstance' unless the partner coming to live with the recipient of income support was going in some way to assist financially that recipient. Merely because a partner is living in the same house does not, of course, prove that fact at all."

[37]Mr Becker relies on the observation in the second part of paragraph 15 in support of his submission that the judge was in error in concluding that the prosecution did not need to prove that financial assistance was actually provided. It is not clear to us whether the court in Zorlu was taken to the relevant provisions of the Social Security Contributions and Benefits Act 1992 in detail. In any event, it seems clear to us that the effect of those provisions is that a change in circumstances affecting entitlement is not limited to circumstances where assistance is actually provided. The scheme of the statute governing entitlement and exclusions proceeds by reference to continuing satisfaction of the statutory criteria.

[38]If the appellant and Mr Aspinall were "a man and woman who are not married to each other but are living together as husband and wife" within section 137(1)(b), they were "a couple" and if Mr Aspinall was engaged in remunerative work (and it is accepted that he was), the appellant had no entitlement to Income Support because of the effect of section 124(1)(c). Furthermore, "entitlement" is excluded by section 134, the effect of section 136 being that the income and capital of Mr Aspinall would be treated as the income and capital of the appellant. Section 136 applies equally to housing benefit and council tax benefit, so the same consequence follows in each case.

[39]Before us Mr Becker submits that "living together as husband and wife" necessarily requires that one should be providing direct financial assistance to the other. However, we can see no warrant for that reading. In our view, the statute does not introduce any such requirement. Accordingly we consider that the judge was correct in rejecting the submissions to the extent they were founded on the proposition the prosecution was required to prove that the appellant actually received financial assistance from Mr Aspinall.

[40]We should add that the averment in the particulars of each offences that Mr Aspinall was working and therefore in a position to provide the appellant with financial support is strictly immaterial, as Mr Wright submits. It was not necessary for the prosecution to prove this in order to establish the offence. It is not of itself a relevant criterion of entitlement. However, we accept the submission of the Crown that in the circumstances of this case, it provided greater specificity as to the nature of the alleged change of circumstances and of the averment that the appellant and Mr Aspinall were living together as man and wife.

[41]We note that the appeal in Zorlu was allowed not on the basis of the imprecise particulars of offence but on the ground of absence of knowledge of the fact that any change of circumstances affected an entitlement. That point also needs to be addressed in the present case. In order to establish an offence contrary to this subsection the prosecution must prove that the recipient knew that the change of circumstances affected her entitlement to the benefit. It may be more difficult for the prosecution to prove that in a case where the change of circumstances is the ability of the partner to provide assistance than in a case where the change in circumstances is the fact that the partner is providing assistance. That will depend on the facts of each case.

[42]In the present case we consider that the judge was clearly correct to leave this issue to the jury, as there was evidence on which the jury could be satisfied that the requirement was made out to the required standard. In his summing-up the judge made clear that the alleged change of circumstances was not the provision of assistance but the ability of Mr Aspinall to provide assistance. In our view the jury was entitled to come to its conclusion.

[43]For these reasons we would dismiss the appeal.