By Dave
04/07/2011

Housing benefit and non-disclosure

In Coventry CC v Vassell [2011] EWHC 1542 (Admin), the issue for Hickinbottom J, on appeal by way of case stated, was as to the mental element required to convict an HB claimant for non-disclosure of a change of circumstances affecting entitlement to HB under s 112(1A), Social Security Administration Act 1992.  Hickinbottom J’s judgment is something of a tour de force in terms of his understanding of the interweaving of various aspects of welfare administration, particularly regarding overpayments and their recovery.  Section 112(1A) creates a criminal 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.

Hickinbottom J deals with the following issues: what has to be notified? what does “prompt notification” mean? to whom does notification have to be given? and, the most important issue, whether the prosecution have to show mens rea in relation to para (d)?

In brief, Mr Vassell, claimed JSA, HB and CTB at the DWP job centre.  He signed a declaration that he would let “the council” know about any changes in his circumstances which affected his claim.  His circumstances changed in 2007, when he took up part-time work with the council.  He notified the job centre and was directed to, and did, notify the council.  He signed another change of circumstances declaration.  In October 2007, he became a full time student, and notified the job centre.  His JSA was terminated.  He was not informed of the need to tell the council of the change regarding his HB and CTB, and believed that his notification to the job centre was sufficient.  He was overpaid £6,215.95 in HB.

What has to be notified? This was not one of the issues in the case stated but was raised on the appeal.  Hickinbottom J noted that, as opposed to the overpayment regulation (Reg 88, HB Regs), s 112(1A)(c)requires the prosecution to prove not just that the claimant knew that the change could affect entitlement but that it would affect it.  Mr Vassell knew that becoming a student might affect his entitlement – and was liable to recovery of the overpayment – but not that it would ([33]-[34]).

What does “prompt notice” mean?  This is a matter of fact and the council’s argument – that “prompt” had to mean before the event actually took place – was not pursued – in Hickinbottom J’s view, “properly” not pursued ([39]).

To whom must notification be made? Under the regs then in force, Mr Vassell needed to inform the council as well as the job centre (ie DWP).  The job centre had no obligation to share that information with the council.  (note: see now the Social Security (Notification of Changes in Circumstances) Regulations SI 2001/3252, Reg 4(1C), added by Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) Regulations 2010/2449, reg 7(3)).

Do the prosecution have to show mens rea in relation to para (d)?  The issue here was whether that requirement was strict liability or contained a requirement that the claimant must knowingly fail to notify.  Hickinbottom J went with the latter and his reasoning seems (to my eyes) impeccable.   The starting point is that there is a rebuttable presumption that all offences require the defendant (benefit claimant) to have knowledge of the wrongfulness of their act and, Hickinbottom J said, that presumption had not been rebutted on para (d).  This was because, if it was strict liability:

[A] benefit claimant could commit the offence of non-notification of a change of circumstance even if he had not been told how he should notify a change. It seems inherently unlikely (indeed, in my view, inconceivable) that that was Parliament’s intention. This is not a situation in which an act has been prohibited in circumstances in which, because of potential danger to public health, safety or morals, the public interest is in favour of ensuring that those who participate in an activity take all steps to prevent the prohibited act. ([53])

Further, Parliament had used the ambiguous word “fails” to notify and, in the absence of clarification, this was a strong indicator that an innocent failure to notify would not be sufficient.

The final sub-issue was as to the character of the “knowledge” required.  Hickinbottom J said that the claimant must be aware of the person to whom and the manner in which they notification must be made, and, with that knowledge, fail to give the notification promptly.  As regards 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” ([65]).  “Nelsonian ignorance” (ie deliberately shutting one’s eyes to the obvious) will be knowledge ([67]); as will a reasonable notification of the wrong person or in the wrong manner but continuing to be paid without making further enquiry.

It follows from the above, as Hickinbottom J recognised, that there are formidable obstacles in the way of a successful prosecution, but “… there are other substantial sanctions that might be imposed upon him, with less formidable criteria: for example, recovery of overpayments, or administrative penalties” ([71]).

2 Comments

  1. Alex Kershaw-Moore

    This decision causes me serious concern as a local authority prosecutor. If in order to prove the lesser offence under s.112 we have to show that Defendants have knowledge of the “wrongfulness” of their actions, how is that different to the s.111 charge of dishonesty? I totally agree that s.112 is not brilliantly worded given that it is meant to be the lesser, summary only charge but this seems to be blurring the lines between the two even more.

    Reply
  2. frednach

    I agree with Alex that the distinction between ‘knowingly’ and ‘dishonesty’ is a fine one. However, the above judgement must be right since knowledge must imply a state of culpability. By the same token it must follow the higher the penalty the more likely culpability must be proven.

    In the case of Passmore (2000), it was held the the duty to inform does not arise where the relevant circumstances does not affect a claimants ‘amount’ of benefit ie makes no difference to claim or existing awards. This decision therefore reinforces the concept the above offences are not one of a strict liability.

    On the issue as to whom to notify. As I understand it under the regulations notification to a ‘gateway’ office is relevant notification w/o the need for individual notifications to various offices ie notification to DWP office where joint or all claims for JSA, HB, CTB were initially made, notification as to changes is sufficient even if no separate notification is given for eg to HB office, as long as the claimant informed the gateway office ie Jobcentre where made the initial claims for the relevant benefits.

    Reply

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