England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		20th June 2005

Monday, 20th June 2005

1. MR JUSTICE FIELD: This is an appeal by case stated by Mr Raymond Parry against his conviction by the justices sitting at Halton Magistrates' Court of dishonestly failing to give prompt notification of the change of circumstances affecting his entitlement to social security benefit in the period 8th December 2001 to 5th November 2003.
2. The statutory provision under which Mr Parry was charged was section 111A(1A) of the Social Security Administration Act 1992 which 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 dishonestly fails to give a prompt notification of that change in the prescribed manner to the prescribed person."

3. Section 111A(1A) was inserted into the 1992 Act by section 16 of The Social Security Fraud Act 2001 and came into force on 18th October 2001. (See The Social Security Fraud Act 2001 (Commencement No 1) Order SI 2001/3251).
4. Mr Parry was in receipt of incapacity benefit from 1999 to 2003. He knew that if he obtained paid employment he should report this to the Department of Work and Pensions because paid employment affected his right to receive incapacity benefit. In the period 22nd August 2000 to 8th January 2001 Mr Parry was in paid employment in the service of Gap Recruitment Agency but failed to notify the DWP of this fact. The DWP only discovered that he had been in work in early November 2003. Mr Parry was interviewed under caution by a social security investigator on 19th November 2003.
5. It was argued on Mr Parry's behalf before the Magistrates that the charge laid against him was wrong in law because the date when section 111A(1A) came into effect was long after 8th January 2001 when Mr Parry had stopped working. The obligation was to give "prompt" notification which signified, so it was argued, that if a long time elapses after the change in circumstances there ceases to be an obligation to give notification of the change of circumstances, and there had ceased to be such an obligation by the time the provision came into effect.
6. Alternatively, it was submitted that it would be contrary to Article 7 ECHR, if the offence under section 111A(1A) could be committed in respect of the change of circumstance which occurred long before the subsection came into force.
7. The prosecution contended that the issue of promptness was not relevant since the appellant had given no notification at any time. It was further contended that the appellant was under a continuing obligation to give notification of the change until he ceased to claim benefit. Thus his failure to notify, when section 111A(1A) came into effect, was an offence under that provision.
8. The justices state that they were of the opinion that:

"(a) The wrong doing at which the offence was aimed was to prevent persons from dishonestly failing to notify a change in their circumstances that might affect their entitlement to benefit.

(b) The use of the word "prompt" was to prevent abuse by a person giving notification of a change in circumstances an unreasonable length of time after the change occurred.

(c) As a result, in a situation where no notification was ever given the issue of promptness was irrelevant.

(d) On 22nd August 2000 the appellant became subject to an obligation to notify the respondent Department of the fact that a change of circumstances had occurred, an obligation that did not cease purely due to passage of time but continued without a break until the appellant's claim for benefits was stopped in 2003.

(e) On 1st December 2001-section 111A of the Social Security and Administration Act came into force.

(f) Between 8th December 2001 and 5th November 2003 the appellant dishonestly failed to notify the respondent Department of the fact that a change of circumstances had occurred on 22nd August 2000, knowing that this fact would affect his entitlement to benefit, an omission which constituted an offence under section 111A."

9. The questions stated by the justices for the opinion of this court are:

"(a) Were we right to find that the use of the word 'prompt' in section 111A of the Social Security Administration Act 1992 was to prevent abuse by a person giving notification of a change in circumstances an unreasonable length of time after the change occurred with the result that, in a situation where no notification was ever given, the issue of promptness was irrelevant?

(b) Were we right to find that the appellant's obligation to notify the respondent Department, which began on 22nd August 2000, did not cease purely due to passage of time or his ceasing to work on 8th January 2001 but continued beyond the commencement date of section 111A and until his claim for benefits was stopped in 2003?

(c) Were we right to find that the period during which the appellant was working, namely 22nd August 2000 to 8th January 2001, was itself not relevant to the issue of whether the appellant had committed a criminal offence between 8th December 2001 and 5th November 2003 and that the relevant consideration was the appellant's behaviour between 8th December 2001 and 5th November 2003, namely his dishonest failure to notify the respondent Department of the fact he had worked?"

10. Mr Vollenweider concedes, on behalf of the appellant, that the justices were correct to conclude that the word "prompt" in the phrase "dishonestly fails to give a prompt notification of that change" does not mean that a person cannot be guilty of an offence under section 111A(1A) if he gives no notification at all or notifies after a notification ought to have been made for it to be prompt. In my judgment he is right to make this concession.
11. However, Mr Vollenweider goes on to submit that the justices erred in holding that the period during which the appellant was working, 22nd August to 8th January 2001, was itself not relevant to the issue of whether the appellant committed an offence between 8th December 2001 and 5th November 2003. In his submission the period that the appellant worked was relevant because notification after the commencement date would not have been "prompt" and would be tantamount to self-incrimination. In his view the second and third questions therefore ought to be answered "No".
12. In my opinion Mr Vollenweider's submission, which raises a very short point, is misconceived. It ignores the fact that when section 111A(1A) came into force the appellant came under a fresh obligation to give a "prompt" notice in conformity with that provision and could not be charged under the subsection's predecessor (section 111A(1C) of the 1992 Act) for that provision had been repealed. The appellant came under this fresh obligation because the period during which the appellant had worked was plainly a change in circumstance affecting his entitlement to benefit for he was continuing to claim benefit which was being paid on the basis that he had never worked since signing on.
13. On any view, the failure to give notification of the paid work in the period 8th December 2001 to 5th November 2003 was a failure to give prompt notification under section 111A(1A). The appellant was therefore plainly guilty of an offence under that provision as the justices found. Notification that was sufficiently soon after the commencement date, 18th October 2001, as to constitute prompt notification under section 111A(1A), would not have been self-incriminatory since such notice would not have provided evidence of an offence committed under section 111A(1A) and the predecessor provision had been repealed.
14. I would therefore answer "yes" to each of the questions posed by the justices and would dismiss this appeal.
15. LORD JUSTICE ROSE: I agree.