COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
(Mr H. Levenson)
Case Nos CIS/1216/2005 and CH/1220/2005
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
SIR PETER GIBSON
| Ashley Neil Mote
|- and -
|(1) Secretary of State for Work and Pensions
(2) Chichester District Council
Mr Jason Coppel (instructed by The Solicitor to the Department for Work and Pensions) for the Respondents
Hearing date : 13 November 2007
Crown Copyright ©
Lord Justice Richards :
The decision not to adjourn the hearing of the appeals
"It is accepted that 'close liaison' would be expected between investigators in the civil and in the criminal proceedings. It is submitted that 'the overwhelming likelihood is that the police would lodge an application for forfeiture (and so effect the detention of the cash and the preservation of the status quo) but then seek an adjournment of the application until criminal proceedings (including any appeal) are concluded'. The advantages of this course are described in the note. They include the preservation of the status quo and ensuring that the defendant is 'not embarrassed into having to rehearse what may be part of his defence to the criminal allegation'. The defendant is unlikely to be in receipt of public funding in the civil proceedings. The potential saving of expense by adjourning civil proceedings is also mentioned."
"It is, however, important that care is taken to ensure that the fair trial of a defendant is not prejudiced by anything arising in civil proceedings in the magistrates' court and steps should be taken accordingly. Liaison between police acting under Part 5 of the 2002 Act and the prosecuting authority is essential. In view of what happened in this case, the issue should be addressed by them."
The challenge to the substantive decision
"(o) On 29 November 2000, Mr Mote entered into a credit agreement with Sainsbury's Bank Plc …. In support of his application for a loan, Mr Mote told the bank that:
i) he was a management consultant with 30 years length of service;
ii) he was employed by JC Commercial Management; and
iii) that he had a total monthly income of £4,000.00
(p) For a period which began on a date which I am unable to ascertain from the papers (but which was before 19 January 1996) until 23 May 2001 (when the account was closed) Mr Mote held a postal account with the Douglas, Isle of Man branch of Barclays Bank Plc ('the Account'). …. Mr Mote did not at any time reveal either the existence of the Account or any of the transactions shown by [the] statements either to the Secretary of State for Work and Pensions or to Chichester District Council. The Account was a personal account ….
(q) The total amounts paid into the Account during the years from 1996 to 2000 were as follows:
(r) On 23 May 2001, the Account was closed. He obtained a personal loan from Barclays to settle the overdraft and the monthly repayments on that loan account … were settled by a standing order from the Tanner Management account.
(s) Those payments into the Account were income in the hands of Mr Mote. Given that Mr Mote's applicable amount was £101.05 in 1996 and would subsequently have increased only in line with annual uprating, that income was sufficient to disentitle Mr Mote from income support during the years 1996 to 1998.
(t) During the years 1999-2000 the income into the Account would – taken on its own – only have reduced Mr Mote's entitlement to income support, not extinguished it. However, I also have to consider Mr Mote's income from JC Commercial Management of which he was a director. Mr Mote had worked as a management consultant for 30 years and by November 2000 was earning £4,000 per month from JC Commercial Management (see sub-paragraph (o) above). That sum was also sufficient on its own, even assuming that deductions had to be made for tax and national insurance, to disentitle Mr Mote to income support at that time. Given his long history as a management consultant, it is improbable that Mr Mote was earning substantially less than that sum during 1999. It is also improbable that the income from JC Commercial Management would have reduced in subsequent years. It is therefore more likely than not that the two sources of income taken together had that effect of disentitling him to income support from 1999 to the end of the overpayment period."
"Mr Mote's own evidence, in the form of his application to Sainsbury's Bank Plc, shows that he was working for JC Commercial Management as a management consultant and that he drew [an] income from that employment which, as at November 2000 was £4,000 per month. There is also the evidence of the regular and substantial payments into Mr Mote's personal account with Barclays bank in the Isle of Man which, in the absence of any explanation to the contrary for Mr Mote, are more likely than not to be income. Those payments indicate a level of income which is wholly incompatible with entitlement to any sort of income-related benefit, including income support."
Sir Peter Gibson :
Lord Justice Lloyd :