Parkes v Department of Work and Pensions [2012] EWHC 4220 (Admin)

Case No CO/3323/2012-CO/3325/2012[2012] EWHC 4220 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue 1.Birmingham Civil Justice Centre
Priory Courts
Venue 33 Bull Street Birmingham B4 6DSDate Thursday, 12th July 2012
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE BEATSON
Between
MOHAMMEDClaimantPARKESClaimantv
Between
DEPARTMENT OF WORK AND PENSIONSDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr De Mello (instructed by McGrath & Co) appeared for Claimant sMiss Heeley (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[2]MR JUSTICE BEATSON: The court has before it two appeals by way of Case Stated from decision of District Judge Magistrates' Court Gillespie on 10th November 2011 in the Coventry Magistrates' Court. The District Judge refused to stay criminal proceedings against the appellants, Ali Mohammed and David Parkes, as an abuse of process. In both cases proceedings were started by information that was laid at the Birmingham Magistrates' Court on 16th May 2011, charging the appellants with offences of benefit fraud, contrary to section 112 of the Social Security Administration Act 1992.[3]After the decisions not to stay the proceedings the appellants both pleaded guilty. Ali Mohammed pleaded guilty to two offences of knowingly making false representations for the purpose of obtaining benefits. David Parkes pleaded guilty to two offences of failing to notify a change of circumstance affecting benefit entitlement and a single offence of knowingly making false representations for the purposes of obtaining benefits.[4]The material parts of sections 116(1) to (3) provide:
"(1)Any person authorised by the Secretary of State in that behalf may conduct any proceedings under this Act before a magistrates' court although not a barrister or solicitor. (2)Notwithstanding anything in any Act— (a) proceedings for an offence under this Act other than an offence relating to housing benefit or community charge benefits may be begun at any time within the period of 3 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to his knowledge or within a period of 12 months from the commission of the offence, whichever period last expires; and ... (3)For the purposes of subsection (2) above— (a) a certificate purporting to be signed by or on behalf of the Secretary of State as to the date on which such evidence as is mentioned in paragraph (a) of that subsection came to his knowledge shall be conclusive evidence of that date; and (b) a certificate of the appropriate authority as to the date on which such evidence as is mentioned in paragraph (b) of that subsection came to the authority’s knowledge shall be conclusive evidence of that date."
[5]Three issues are raised for this court in the questions stated by the District Judge. The first concerns whether the Secretary of State for Work and Pensions had power to delegate the authority to issue a certificate of sufficient evidence under section 116(2)(a) of the 1992 Act to a lawyer or prosecutor. The District Judge has asked whether he erred in law in holding that: "The certificate issued by or on behalf of the Secretary of State can properly be delegated to a lawyer or prosecutor," and that the court did not have jurisdiction to consider whether the certificate should or could have been delegated to a benefit officer.[6]Secondly if, as the appellants contend, the certificates issued in their cases were not valid, when did time begin to run for the purposes of section 116(2)(a)? That requires proceedings for an offence under the Act to be begun within either 3 months from the date on which sufficient evidence to justify a prosecution comes to the knowledge of the Secretary of State, or 12 months from the commission of the offence. The District Judge has asked whether he erred in law in holding that time did not begin to run for the purposes of the section from the date the appellants admitted to the fraud benefits officer that they had committed an offence under the Act and that such admission did not fix the Secretary of State with notice.[7]Thirdly, were the certificates valid despite the fact that they do not expressly state that they were signed "by or on behalf of the Secretary of State"? The District Judge has asked whether he was correct in holding that the certificates were valid despite the fact that they did not so state. The first and third questions concern the validity of the certificates and are conveniently considered before the second. This is because the second only arises if the certificates are not valid.[8]The facts set out below are taken from the Case Stated: Ali Mohammed was charged with knowingly making a false representation on or about 31 October 2007 for the purpose of obtaining income support and of making a false representation on or about 8 February 2008 for the purpose of obtaining Housing Benefit and Council Tax Benefit. In both cases the false representation consisted of failing to declare that he was working, also contrary to section 112(1)(a) of the 1992 Act.[9]Ali Mohammed had been interviewed by benefits officers on 8th April and 14th June 2010 and made limited admissions. The Case Stated states that further enquiries were then necessary because the admissions were limited. The Department for Work and Pensions provided a memorandum dated 21 September to the local authority investigator although the date the investigator received the document was not notified to the court. The reviewing lawyer received the file of evidence 8 months later on 2 February 2011 and considered it on 9 March. The lawyer required further evidence which was provided by 17 March. All the evidence was reviewed on 15 April and the reviewing lawyer certified that on 9 March 2011 there was evidence sufficient in the opinion of the Secretary of State to justify a prosecution in respect of the claim for income support. A Mr Easton-Brown, on behalf of the local authority, signed a similar certificate confirming the same date, in respect of the opinion of the local authority for the claims for Housing and Council Tax Benefit.[10]The informations concerning David Parkes charged him with one count of failing promptly to notify the Secretary of State and one count of failing to promptly to notify Birmingham City Council of a change in circumstances that he knew would affect his entitlement to benefit, contrary to section 112(1)A of the 1992 Act. The change in circumstances that was that he had capital in excess of the prescribed limits. The first charge related to income support and was for the period between 13 March and 8 July 2008. The second charge was in respect of housing benefit and council tax benefit and was in respect of the period between 17 March and 14 September 2008. The third charge was that on or about 14 July 2008 Mr Parkes knowingly made a false representation by failing to declare that he had capital in respect of the prescribed limits for the purpose of obtaining Job Seekers Allowance and that this was contrary to section 112(1)A of the 1992 Act.[11]Mr Parkes was interviewed by benefits officers on 5 May 2010 and made admissions. He was informed that further enquiries would be made and was told what the Department of Work and Pensions saw as the offences. The Case Stated does not say whether the interview was by departmental officers or local authority officers but, in view of what is said about what the Department for Work and Pensions saw as the offences, it may have been departmental officers.[12]The reviewing lawyer received the file of evidence on 4 February 2011 and considered it on 9 March. Further evidence was required and this was provided on 5 April 2011. All the evidence was reviewed by the lawyer on 11 April. On that date the prosecutor issued the certificate, stating that on 9 March 2011 evidence sufficient to justify a prosecution came to the knowledge of the Secretary of State. There is also a separate certificate in this case which has the heading on it "Birmingham City Council" and describes itself as the "Secretary of State's" certificate.[13]In both these appeals three certificates were produced to the District Judge. The first is an undated authorisation by the then Secretary of State, Mr John Denham. This states:
"I confirm that lawyers in Sol B2 Branch of the Solicitor's Office may, on behalf of the Secretary of State, exercise the powers under section 116(2) (a) and (3)(a) of the Social Security Administration Act 1992, to sign certificates attesting to the date on which sufficient evidence to justify a prosecution came to light."
The second certificate is headed "Secretary of State's Certificate (issued pursuant to section 116(2)(a) of the Social Security Act 1992)". It was signed by "a prosecutor authorised to issue this certificate" and certifies that "evidence sufficient in the opinion of the Secretary of State to justify a prosecution ... came to his knowledge on 9 March 2011." In the case of Ali Mohammed the certificate is dated 15 April 2011. In the case Mr Parkes it is dated 11 April 2011.[14]The third certificate in each of the cases is headed "Birmingham City Council". This document is not relevant to Ali Mohammed's appeal. It states that it is a certificate pursuant to section 112(1)A of the Social Security Administration Act and confirms the date on which sufficient evidence to justify a prosecution came to the authority's knowledge, ie to Birmingham City Council's knowledge. The certificate in Mr Parkes' case is signed by Nigel Last Principal Fraud Officer. As I have stated it is headed "Birmingham City Council". It then states that it is the Secretary of State's certificate issued pursuant to section 116(2)(b) and that it is signed by a prosecutor authorised to issue it. The terms of the certificate in this case are the same as in the Secretary of State's certificate. I set them out at the end of this judgment. This certificate also contains a stamped date inverted at the top right of the certificate.[15]I come to the decision. The paragraphs set out below contain what the District Judge stated in each of the two cases in virtually identical terms. Differences will be indicated in the corrected transcript of the judgment by square brackets. "1. The Secretary of State for Works and Pensions had properly delegated the signing of certificates on his behalf; s 116(3) of the Act clearly anticipated such delegation, notwithstanding that the Section is otherwise silent upon express delegation. Specific delegation is not granted to either benefits or fraud officers or to lawyers. 2. The Carltona principle applies and permits delegation by the Minister. 3. It was not a matter for me to consider whether or not the Secretary of State could or should have delegated to a non lawyer; I did not have jurisdiction or power to go behind the certificate signed by the Secretary of State and to examine his decision to delegate to the lawyers of the DWP prosecutions department. I had not need to do so as I found no evidence of fraud, misleading information, misconduct or inaccuracy on the face of the documents. 4. The Secretary of State had not delegated the decision as to sufficiency of evidence to a benefits officer or fraud officer; he delegated the signing of certificates attesting to the date upon which sufficient evidence came to light to the lawyers. 5. It was open to the Secretary of State to delegate to whomsoever he wished. There were no statutory restrictions placed upon him and no legal requirement that delegation should be to a benefits or fraud officer. 6. The certificates as to sufficiency of evidence are not fraudulent, inaccurate, wrong or misleading in any particular; the heading and wording of the certificates cannot be open to ambiguity; the face of the certificates shows plainly that they have been signed by a person having the authority of the Secretary of State for Work and Pensions to do so. The omission of the words 'signed on behalf of the Secretary of State' or other words to that effect does not nullify the efficacy of the certificates. The Appellant was unable to show any evidence of fraud or any other misconduct on the part of the DWP. The certificates were signed on behalf of the Secretary of State as his authorisation had been given. 7. Applying s 116(3) of the Act, I was satisfied that the certificates certifying the date when sufficient evidence to justify prosecution [19th March 2011] came to the knowledge of the Secretary of State were conclusive evidence of that date. The time limit of three months for the laying of an Information therefore ran from that date and that the proceedings were commenced in time. 8. There had been a substantial delay between the first interview with the Appellant, [In Ali Mohammed's case 8th April and 14th June 2010, and in David Parkes' case 5 May 2010] and the submission of the file to the prosecutions department [In Ali Mohammed's case 2nd February 2011, and in David Parkes' case 4 February 2011] during which time further enquiries were being made by the investigating officer. Witnesses were not called by either the Appellant or the Respondent in order to examine the reason for the delay. I did not find the delay to be prejudicial to the Appellant having a fair trial, especially taking account of admission made by him during interview. 9. Applying Azam v Epping Forest District Council (ante), I found no manipulation or misuse of the process that could amount to misconduct and that there had been no abuse of the process." The Submissions[16]Mr De Mello, on behalf of the appellants, submitted that a lawyer in the Solicitors B2 branch of the Solicitor's Office, acting as a prosecutor, does not have power to sign the certificate and the Secretary of State does not have power to delegate the task to a lawyer. At the heart of his submissions is the proposition that there is a fundamental difference between the position of a benefits officer, who has the requisite expertise and is fully accountable to the Secretary of State as a member of his or her department, and a lawyer, who remains subject to his or her professional codes of conduct and standards and whose accountability to the Secretary of State is in that sense restricted.[17]In his written submissions Mr De Mello maintained that a lawyer in the B2 branch of the solicitor's office is not "a member of" the Secretary of State's department, so that the principal in Carltona v Commissioners of Works [1943] 2 All ER 560 considered in R v Home Secretary, ex parte Oladenhinde [1991] 1 AC 254 does not apply.[18]There is within the Department for Work and Pensions a Director DWP Legal Services and a Director of DH Legal Services and the appellant's notice in these cases give the address of the respondent as "DWP Legal Department" and then an address in Middleway, Birmingham. Until recently the legal branch of DWP and the Department of Health was divided into three sections. That concerned with inter alia litigation was known as Sol B. Accordingly, this part of Mr De Mello's written submission appears to proceed on a false assumption. The parties have not been able to provide us with a definitive answer to the position, but for reasons I shall give I do not consider that anything turns on this.[19]Secondly, Mr De Mello relied on the contrast between sections 116(1) and 116(3), which respectively permit a person "authorised by the Secretary of State" to conduct proceedings before a Magistrates' Court or whether or not a barrister or solicitor and a certificate to be signed "on behalf of the Secretary of State" with section 116(2), where the reference is only to evidence "sufficient in the opinion of the Secretary of State" which comes to "his knowledge". It was argued that the contrast shows that delegation of this matter save under the Carltona principle is not authorised.[20]Thirdly, and allied to the two previous points, is the submission that the independence of lawyers employed by the government and their subjection to their professional codes of conduct militates against construing the section as authorising any delegation to lawyers.[21]Fourthly, Mr De Mello submitted that the purpose of the provision is to ensure that there is a fixed time limit for bringing prosecutions for benefit fraud and that limitation periods for bringing prosecutions must be strictly construed.[22]On the third of the questions stated by the District Judge which also concerns the validity of the certificate, Mr De Mello submitted that the signatory in these two cases does not expressly purport to sign "on behalf of the Secretary of State." The absence of words to this effect, he argued, means the certificate does not comply with the Act, that is it is defective and of no effect.[23]Finally, I come to the submissions on the second question. This was posed on the assumption that the certificates in these two cases were not valid. It asked when, on that assumption, time began to run and whether the District Judge erred in law in holding it did not begin to run from the date the appellants admitted to the benefits officer that they had committed an offence under the Act. Mr De Mello submitted that in doing so the District Judge fell into error . His case was that time started running when each appellant made admissions to the benefits officer that were communicated to Birmingham City Council. He maintained that at that stage the benefits officer, and through him the Secretary of State, had all the material on which the prosecutions were based. The Secretary of State was not, he argued, entitled to delay time starting to run until a lawyer had consulted the file. Discussion[24]The starting point is that in the court of trial the Tribunal is bound by the certificate. Sections 116(3)(a) and (b) provide that the certificate "shall be conclusive evidence" as of the date on which the evidence as is mentioned in section 116(2) (a) and (b) came to the knowledge of the Secretary of State and the authority.[25]In the case of Azam v Epping Forest District Council [2009] EWHC 3177 (Admin), a judgment of the Divisional Court, Cranston J, summed-up the principles at paragraph 25. He stated at subparagraph (4):
"A valid certificate is determinative of the matter unless the certificate is inaccurate on its face, or can be shown to be fraudulent."
The court at trial, in this case the District Judge, can therefore not investigate the appropriateness or suitability of the particular delegation. A challenge to that would not in fact be to the certificate but to the antecedent decision of the Secretary of State to delegate. That challenge could only be made by way of an application for judicial review brought against the Secretary of State.[26]In any event, Mr De Mello's submission that the Secretary of State has no power to delegate to lawyers is manifestly unsustainable. He rightly abandoned any suggestion that the Secretary of State cannot delegate at all. Such a suggestion is to be found in his written submissions. In relation to the position of a legal civil servant, I reject the submission that as a result of his professional responsibilities as a lawyer to his professional organisations, there is no power to delegate to him. As was stated in the respondent's skeleton argument, the fact that a lawyer has some independence and must follow the Attorney-General's guidelines on prosecuting provides some safeguards. In any event a lawyer is an entirely suitable delegate when it comes to making a decision as to what evidence there is and judging whether it is sufficient for the purposes of a prosecution.[27]As a matter of fact if, as I believe, the relevant department at the time was situated within the Department for Work and Pensions there is in any event sufficient accountability to the Secretary of State to ensure that it cannot be suggested that a delegation to a lawyer within the department is an abdication of the Secretary of State's statutory responsibility.[28]It is true that the Secretary of State's power under section 116(1) to authorise people who are not barristers or solicitors to conduct proceedings under the 1992 Act before a Magistrates' Court is entirely separate from the implied power to delegate in section 116(2). But that has no bearing on whether a lawyer can be the delegate for the certification function under section 116(2)(a) and (b).[29]I turn to the third question. This is whether it is necessary for there to be an express statement on the certificate that the signature is "by or on behalf of the Secretary of State". In the context of these certificates the answer is clearly "no". In this case what I have referred to as the second certificate is headed "Secretary of State's certificate" and it is stated that it was signed by "a prosecutor authorised to issue this certificate". There is a reference to the statutory provision. It is clear, reading the heading and the words under the signature, that since the signatory is not the Secretary of State himself, the signatory must be acting on behalf of the Secretary of State. I have referred to the fact that, with regard to one of the certificates issued in the case of Parkes, a quite separate point emerged in argument. I deal with that towards the end of this judgment.[30]That leaves the second question. In view of the answers that I have given to the first two questions and the conclusiveness of the certificate in such circumstances, absent error on the face of the certificate or fraud this second question does not arise. The 1992 Act expressly requires time to be measured from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution, comes to the Secretary of State's notice. An interview may or may not supply sufficient evidence, as the differences in the factual positions in these two appeals show. It is, however, significant that it is not the objective existence of sufficient evidence but of sufficiency in the opinion of the Secretary of State which is crucial.[31]In the case of Ali Mohammed, Mr De Mello initially submitted that the 3 month period ran from the first interview in April. He did so, although the officer conducting the interview considered that more information was required, although the officer conducted the second interview on 14 June, and although the case stated by the District Judge was that further enquiries were necessary because the admissions were limited. The court is bound by those facts. But in any event there is no material before us as to what that information was or whether the evidence obtained in the first interview was all that was ultimately relied upon.[32]Mr Parkes' case is more uncertain. He was explicitly informed at his interview that further enquiries would be made and he was informed what the department saw as the offence that he had committed. But it appears that, although the reviewing officer required further evidence, in fact the evidence obtained at the interview was what was subsequently certified as "sufficient". This is because the certificate stated that sufficient evidence existed on 9 March 2011, but the further evidence was not received until 11 April.[33]I return to the separate point in relation to one of the certificates in Parkes' case, raised and developed during the course of the hearing as a result of questions by my Lord, Lord Justice Hughes. Section 116(2)(b) provides that time runs in a Housing Benefit/Council Tax Benefit case, not from the decision on behalf of the Secretary of State that the evidence is sufficient, but from the equivalent decision made by the local authority. There are for this reason separate certificates in each case: one from the Secretary of State and the other from the local authority. As I have stated, in the case of Mohammed, the local authority certificate certified that the authority had determined the sufficiency of evidence and gave the evidence on which it did so. That was correct. However, in the case of Parkes the certificate reads as follows:
"This is to certify that evidence sufficient in the opinion of the Secretary of State to justify a prosecution for an offence of failing to declare a change in circumstances, contrary to section 112(1)(a) of the Social Security Administration Act 1992 came to his knowledge on the 9th March 2011."
That certificate is defective on its face because it does not purport to state any conclusion by the local authority. This point was however not taken below and for that reason the Case Stated does not address it at all. On the face of it, it might well have been fatal to charge No 2 in Parkes' case, the charge relating to Housing Benefit and Council Tax Benefit. However, it might not have been. If the point had been taken below counsel for the prosecution might have been in a position to call evidence about when the local authority had formed the opinion that sufficient evidence existed. Whilst the normal means of proving that date is a certificate under section 116(3)(b), that is not the only means. Accordingly we are unable to quash the conviction on charge 2. In fact that conviction made little difference to Mr Parkes because no separate penalty was imposed in respect of it. However, we do draw attention to the fact that if time is, made to run from a date determined only by the prosecutor as it is here by the statute, it is essential that the prosecutor prove it adequately. Generally that would be done by a certificate in proper form. In this case, this particular certificate was patently not.[34]For these reasons I conclude this appeal must be dismissed.

LORD JUSTICE HUGHES: I agree.

[36]Then the appeal must be dismissed. Is there any other application?[37]MISS HEELEY: Ordinarily there is an application for costs but this is legally aided funded by the appellant, so as a consequence quite frankly.

LORD JUSTICE HUGHES: No, Mr De Mello we shall not make an order for costs. There is no reasonable prospect that he has the means to make such (inaudible). Thank you both very much indeed.

Cited in 1 later judgment