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Coventry City Council v Vassell [2011] EWHC 1542 (Admin) (17 June 2011)

Summary

23 June 2011

This High Court decision considers the test to be applied when deciding whether a criminal offence has been committed under section 112(1A) of the Social Security Administration Act 1992 in a case of failure to disclose.

Section 112(1A) (inserted by Section 16(3) of the Social Security Fraud Act 2001) 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."

Note: Section 112(1A) applies a more severe test than the requirement to disclose under regulations 32(1), (1A) and (1B) of the Claims and Payments Regulations 1987.These require the claimant to furnish information as required and notify of any change of circumstances which he or she might reasonably be expected to know might affect their benefit (See B v United Kingdom)

Section 112(1A) requires that the claimant knows that a change affects his or her entitlement.

Background

The claimant made a claim for jobseeker’s allowance (JSA) at the local Jobcentre and claimed housing benefit (HB) and council tax benefit (CTB) at the same time. He subsequently became a student and notified the Jobcentre but did not separately inform the local authority.

The case went to a magistrates court, which decided that the claimant was not guilty of having failed to give prompt notification of a change of circumstances that he knew would affect his entitlement to HB and CTB. In deciding this the court made the following findings:

(i) They found that Mr Vassell did not in fact notify the Council of his move to full-time education, as a change in circumstance.

(ii) However, Mr Vassell believed that he had informed the relevant authorities in respect of housing benefit and CTB, by giving the notice to the Jobcentre.

(iii) The failure of the Jobcentre staff on this occasion to advise Mr Vassell of the need to inform the Council's Housing Department of the change led him to believe he had discharged his responsibilities to notify the change correctly.

(iv) The benefit claim forms were not sufficiently clear as to how the duty to notify a change of circumstance must be discharged (Paragraph 8).

The Judgment

Judge Hickinbottom, upholding the Magistrates decision and rejecting the appeal of the local authority, states that on the basis of the construction of section 112(1A), the hurdles that the prosecution have to surmount to convict a benefit claimant under that section may appear to be considerable.

The magistrates court were held to be correct in considering that the requirements of section 112(1A)(d) were not met, based on their findings, which indicate that the claimant believed he had carried out the requirement to inform of his change in circumstances. In emphasising the severity of the test under 112(1A) Judge Hickinbottom states that as it is a criminal provision it should not be surprising that Parliament intended the matters which have to be proved to be strict. Also if a claimant fails to notify a change of circumstances, there are other substantial sanctions that might be imposed upon him, with less formidable criteria: for example, recovery of overpayments, or administrative penalties.

In summary the claimant would only be guilty of an offence under section 112(1A) if the prosecution prove to the criminal standard that he failed to give prompt notification of a change in his circumstances that he knew affected his entitlement to such benefit, to the relevant local authority at the office notified to him on the benefit claim form as the office designated for the receipt of such benefit claims.

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