King v Kerrier District Council [2006] EWHC 500 (Admin)

Case No CO/8004/2005

[2006] EWHC 500 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 27 February 2006

Strand

London WC2

B E F O R E:

LORD JUSTICE AULD

MR JUSTICE NEWMAN

Between

FELICITY JEAN KINGClaimant

-v-

Between

KERRIER DISTRICT COUNCILDefendant

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for The applicant did not appear and was not represented

MR M BRABIN (instructed by Messrs Jewill Hill and Bennett) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE AULD:

Mr

Justice Newman will give the first judgment.

[2]MR JUSTICE NEWMAN: This is an appeal by way of case stated from a decision of the Truro Magistrates' Court which, on 11 March 2005, convicted the appellant of two offences of failing to give proper notification of a change of circumstances affecting her entitlement to both housing benefit and council tax benefit, contrary to section 112(1A) of the Social Security Administration Act 1992. Section 112(1A) was inserted into the 1992 Act by section 16 of the Social Security Fraud Act 2001. Section 112 is headed "False Representations for Obtaining Benefit et cetera".

[3]Section 112(1) creates an offence of obtaining "any benefit or other payment under relevant legislation" by a person who "a) makes a statement or representation which he knows to be false; or b) produces or furnishes or knowingly causes or knowingly allows to be produced or furnished any document or information which he knows to be false in a material particular". Section 112 (1A) provides as follows:

"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 that the change affects an entitlement of his to such a benefit or other payment or advantage; and (d) He fails to give a prompt notification of that change in the prescribed manner to the prescribed person."

[4]In my judgment, each of the ingredients of the offence (a) to (d) in that subsection must be established to the criminal standard of proof. It follows that, for the purposes of the subsection there must have: "... been a change of circumstances affecting any entitlement... to any benefit or other payment or advantage under any provision of the relevant social security legislation," save only where it is excluded by any regulation from the ambit of this subsection. More than that, according to subsection (c), it must be established to the criminal standard of proof that the defendant knew that the change affects an entitlement.

[5]Subsection (d) only comes into play if there has been a change within the meaning of the subsection and a defendant, with knowledge of the change, has failed to give prompt notification in the prescribed manner to the prescribed person of that change. It is thus beyond argument that the prosecution must establish, to the appropriate standard of proof, that there has been a change of circumstances affecting a relevant entitlement and that the defendant knew of the change, but nevertheless failed to give a prompt notification in the prescribed manner to the prescribed person.

[6]According to the case stated, the magistrates found the following facts: 1) That the housing benefit and council tax benefit concerned the appellant and were paid to the advantage of the appellant. There is no appeal against that conclusion. 2) That the appellant either knew that there had been a change in the circumstances which affected the entitlement to benefit or closed her eyes to the obvious. The magistrates could not properly have come to this conclusion unless they had already concluded, to the criminal standard of proof, that there had been a change of circumstances. However, they went on to conclude; 3) that the lack of information from the appellant could have affected the amount of benefit paid and; 4) to hold that the appellant clearly failed to give prompt notification of the change, the magistrates observing that the exhibits produced gave sufficient information as to how and to whom the information should be imparted.

[7]It has been submitted, in my judgment correctly, that if the magistrates had merely concluded that the lack of information from the appellant could have affected the amount of benefit paid, it must follow that despite their stated conclusion to the contrary, they could not have reached the conclusion to the criminal standard of proof that the change in circumstances had affected the appellant's entitlement to benefit:

"The question for the opinion of the High Court is: "

The prosecution having conceded that before the Justices could convict they had to be satisfied that the change of circumstances which the Defendant failed to notify would have affected her entitlement to Benefits, whether the Justices were right to convict in view of their finding that the change of circumstances could have affected her entitlement for Benefits." In my judgment, the answer to that question is plainly no, they could not. It follows that this appeal, in my judgment, must be allowed and the convictions should be quashed.

[8]One can add that the respondent has not been represented on this appeal but has helpfully put in submissions in writing. It is only necessary to refer to one particular submission touching this issue. That submission was to the effect that the words "could have" may be considered to be otiose to the magistrates's decision because the words are not in section 112(1A) of the Social Security Administration Act 1992. The latter observation is correct, but the former is not. The words "could have" cannot be regarded as otiose to the decision because they point to the magistrates not having been sure of the fundamental assertion which underlay the prosecution's case.

[9]The words do not appear in the 1992 Act because proof of the offence requires more than the possibility that the change could have affected the benefit. In fairness to the magistrates, it may be that they were confused by the terms of the Housing Benefit (General) Regulations 1987, Regulation 75, under the heading "duty to notify changes of circumstances", in its material part, provides that if there is "a change of circumstances which the claimant or any person by whom or on whose behalf sums payable by way of housing benefit may be receivable might reasonably be expected to know might affect the claimant's right to the amount of or receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice in writing to the designated office."

[10]Of course, this is an entirely separate requirement and is not part of the penal regime under the 1992 Act. The existence of this duty within the statutory regime is relevant in connection with any recovery which a local authority may choose to seek to make, but it is not a penal provision. It is not the duty imposed by section 112(1A), for which failure to act can give rise to the commission of a criminal offence. The character of the duty under the regulations and the difference which can be seen between it and the duty under section 112(1A), in my judgment, confirm the conclusion that the magistrates could not have found an essential ingredient of the offence over to the required standard of proof. I would therefore allow the appeal.

LORD JUSTICE AULD: I agree. The appeal is therefore allowed.

[12]MR BRABIN: My Lord, I am obliged. The applicant is legally aided; do I need an order from your Lordships, I do not think I do.

LORD JUSTICE AULD: If you need an order you should have one, which is that there should be an assessment under the legal aid provisions.

[14]MR BRABIN: Thank you.

LORD JUSTICE AULD: I am sure those are not the magic words but they should suffice for the purposes of the associate. Thank you for your assistance.

[16]MR BRABIN: Thank you very much.