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Circumstances in which a criminal offence is committed for non-notification of a change of circumstances - High Court Judgement

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Circumstances in which a criminal offence is committed for non-notification of a change of circumstances<

New High Court judgment

 

17 June, 2011

 

In a new judgment, the High Court has considered the operation of section 112(1A) of the Social Security Administration Act 1992 that sets out the circumstances in which a criminal offence is committed for non-notification of a change of circumstances.

In Coventry City Council v Vassell [2011] EWHC 1542 (Admin) (17 June 2011) , the local authority's appeal against a Magistrates' Court decision that Mr Vassel was not guilty of having failed to give prompt notification of a change of circumstances that he knew would affect his entitlement to housing benefit (HB) and council tax benefit (CTB), the claimant had applied for the two benefits in 2005, at the same time as he had made a claim for JSA. Accordingly all three claims were made at a Coventry Jobcentre that accepted claims for HB and CTB. However, in 2007 Mr Vassel became a student and, whilst he advised the Jobcentre of his change in circumstances with the result that his JSA claim was terminated, he did not separately inform the local authority with the result that HB/CTB continued to be paid.

However whilst the Magistrates' Court determined that Mr Vassell had not in fact notified the local authority of his move to full-time education -

  • he believed that he had informed the relevant authorities in respect of HB and CTB, by giving the notice to the Jobcentre;
  • the failure of the Jobcentre staff to advise him of the need to inform the housing benefit department of the change led him to believe he had discharged his responsibilities to notify the change correctly; and
  • the benefit claim form was not sufficiently clear as to how the duty to notify a change of circumstance should have been be discharged.

NB - section 112(1A) of the Social Security Administration Act 1992 provides -

'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.'

In dismissing the local authority's appeal, the High Court holds that the prosecution was unable to prove the element of the offence set out in subsection (c) of section 112(1A), namely that, at the relevant time, Mr Vassell knew that his move into full-time education would (rather than could) affect his entitlement to HB or CTB -

'.... for a successful prosecution, it must be proved that the defendant knew that the change would - as opposed to could - affect his entitlement to the relevant benefit. That confirms one mental element in the offence, and an element of some significance, namely a high degree of knowledge the prosecution have to prove with regard to the effect on entitlement to benefit by the change of circumstances. As I have already described, that is not a requirement for recovery of an overpayment as a result of non-notification ... but, in terms of the criteria for a criminal prosecution, subsection (c) sets a substantial hurdle for the prosecution to overcome. As this is a criminal provision, that is hardly surprising.' (paragraph 32)

In addition the High Court holds that -

  • in relation to what 'prompt notice' means in the context of Section 112(1A)(d) -

'Prompt is an ordinary word, and the section does not use it in any extraordinary or technical sense. In R (Sedgefield Borough Council) v Dickinson [2009] EWHC 2758 (Admin), Davis J appears to have accepted that the words in section 112(1A) ought to be given their natural and ordinary meaning. I agree.' (paragraph 38)

  • in relation to what 'prescribed manner' means in the context of Section 112(1A)(d) -

'The failure to notify a change of circumstances in section 112(1A)(d) must, in my judgment, be knowing in the sense that the benefit claimant must be aware of the person to whom and the manner in which the notification of the change of circumstances must be made; and must, in that knowledge, not give the notification, promptly, when there has been a change of circumstances requiring to be notified. It will usually be obvious that the notification must be made to the relevant local authority: but, in relation to the manner of notification, the authority is required to provide the benefit claimant with the relevant information of how to notify a change, in clear terms. That is anything but an onerous requirement for the authority. Particularly given the statutory provisions including the requirement to notify the designated office thus ... it will no doubt usually make the manner of notifying changes clear on, or with, the benefit claim form ... On any prosecution, whether the notification requirements have been expressed clearly enough will be a matter of fact for the justices to consider and decide.' (paragraph 65)

The High Court's judgment in Coventry City Council v Vassell [2011] EWHC 1542 (Admin) (17 June 2011)< is available from the BAILII website.

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