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 WC2A 2LL
		6 March 2014

1. MR JUSTICE FOSKETT: On 8 June 2010 at Epping Magistrates' Court the claimant was convicted of one offence under section 112(1A) of the Social Security Administration Act 1992 ("the 1992 Act") the particulars of which were as follows:

"... between 15 January 2008 and 13 May 2009 at Harlow in the County of Essex being a person in receipt of housing benefit and council tax benefit you failed promptly to notify in the prescribed manner to the prescribed person a change in circumstances affecting your entitlement to benefit which you knew affected your entitlement to benefit and which you were required to notify, namely that you were in receipt of earnings from paid employment."

2. As far as the substantive offence is concerned sub-section 1F of the Act provides that:

"[For] the purposes of [sub-section (1A)]... above a notification of a change is prompt if, and only if, it is given as soon as reasonably practicable after the change occurs."

3. The relevant "change" is one "affecting any entitlement of his to any benefit or other payment or advantage under any provision of the relevant social security legislation" which is not excluded by regulations made under the Act. Plainly, obtaining earnings from paid employment would constitute a change in circumstances of the sort contemplated by the Act and there is no issue in this case about that.
4. The "prescribed manner" was in writing or by telephone and the "prescribed person" was the housing/council tax benefit department of Harlow District Council ("the interested party"): see regulation 4(1) of the Social Security Notification of Change of Circumstances Regulations 2001.
5. The offence does not require proof of dishonesty and no such suggestion was made against the claimant in this case.
6. The claimant appealed to the Crown Court and the appeal was heard on 24 and 25 October 2012 at Chelmsford Crown Court by His Honour Judge Turner QC and two justices. The appeal was dismissed.
7. The claimant sought permission to apply for judicial review of that decision on the basis of very extensive grounds that she drafted in person. On 26 April 2013 Wilkie J granted permission to apply for judicial review limited to consideration of the issued issues that he identified in the following way:

"1. The prosecution case was that the offence was committed in that the local authority had not received, and so by inference the defendant had not sent, any letters notifying them of a change of circumstances between 15 January 2008 and 13 May 2009.

2. In particular the case revolved around the issue whether the defendant or her husband had sent letters dated 26 March, 12 May and 14 August, which enclosures, which were said to amount to notification.

3. The prosecution case was not put on the basis that, if such letters had been sent it would not have been prompt notification. The case was put on the basis that the letters had not been sent.

4. The court, in the judgment delivered by the judge, recorded its findings that the prosecution had not proved that the letters were not sent.

5. The court upheld the conviction on the basis of its conclusion that it was not sure that, if the letters were sent, they did not constitute prompt notification.

6. This did not reflect the prosecution case nor had it been subject of any questioning of the witness by the court. The issue appears to have been raised for the first time by the court at the end of the evidence in discussion of the law between the court and the parties' representatives.

7. In the circumstances it is arguable that the decision of the court was procedurally flawed and/or irrational and/or wrong in law."

8. The substantive judicial review hearing has indeed been confined to those matters.
9. The charge itself was expressed in somewhat compendious terms alleging in the 16-month period between the two specified dates the failure of the claimant "promptly to notify" the interested party that she was "in receipt of earnings from paid employment." No further particulars were given of when during that period it was said that she so failed and what constituted the lack of promptitude. The Act provides in effect that notification is prompt "if and only if it is given as soon as reasonably practicable after the change occurs" (see paragraph 2 above). It would therefore be a material averment in the particulars of an offence under section 112(1A) that either notification was never given after the change occurred or that it was given at a specified time which was not "as soon as reasonably practicable thereafter". Indeed it might be thought that a material averment would be the date at which or the period of time during which the change occurred. It would only be from that time or period that the promptness or otherwise of any notification could be measured. In the event no complaint has been made about the form of the charge, although it is plain it could have been more fully and fairly particularised even on the particular case advanced by the interested party.
10. The hearing before the Crown Court was of course the complete rehearing of the case against the claimant. It was common ground that the claimant commenced working on 15 January 2008 for a market research company called Kantar Operations. Her first shift was on 28 January 2008 for which she was paid £60.65. She wrote to the interested party informing them of this by letter dated 6 February 2008 (delivered by hand) in the following terms:

"I started training for work and worked one day (28th Jan) for which I had been paid £60.65 payslip enclosed... please tell me how I should record when and if I work. Do I require a form to fill in... at the moment it is not regular work."

11. No complaint is made by the interested party about that letter or its timing. The interested party replied by letter dated 20 February 2008, the material parts of that letter being as follows:

"Please be advised that every time you work you will need to inform us in writing and provide the payslips...

THE ONUS IS ON YOU, THE CLAIMANT, TO PROVIDE ALL THE RELEVANT INFORMATION. THIS MUST BE RECEIVED WITHIN ONE CALENDAR MONTH.

Failure to comply will mean that your claim will be incomplete and you will have no entitlement to benefit. If you have a current entitlement there will be terminated." (All emphasis as in original.)

12. It is, perhaps, to be noted that that letter made no reference to possible criminal consequences in the event of failure to notify times of working.
13. During the course of the brief opening by prosecution counsel the judge sought to identify the criminality alleged. Miss Elizabeth White, who appeared as counsel for the prosecution at the Crown Court, told the court that after that exchange of correspondence:

"[Nothing] further was heard from Mrs Taffs in relation to her working until the letter [dated 10 February 2009]."

Some pay slips that were enclosed. After identifying a full set of wage slips for the claimant from Kantar Operations for the period, Miss White drew attention to the number of wage slips actually sent to the interested party by the claimant. The following interchange took place:

"Miss White: ... there is a massive shortfall between the wage slips sent in and the wage slips she was actually sent.

Judge Turner: Yes... is that the criminality?

Miss White: Your Honour, yes, and of course the other point is that those wage slips were not sent until February 2009.

Judge Turner: Yes.

Miss White: Which is some significant time -- I think they were all, or dates around that date, I think, for the October onwards."

14. It is to be noted that in that exchange there was no particularisation on behalf of the prosecution of a lack of promptitude alleged other than that deriving from the suggestion that the wage slips were not sent until February 2009, thus some 12 months after the initial notification. The allegation that was being made was that nothing was heard from the claimant until her letter of 10 February 2009. Simply to complete the picture as at that date, that letter was a reply to a letter from the interested party dated 16 January 2009 which appears to have asked for the claimant's pay slips and certain information relating to her husband which is irrelevant for present purposes. The claimant ended her letter by asking the interested party to "amend the benefit account and credit the rent and council tax."
15. On 3 August 2009 the summons was issued.
16. So far as the prosecution opening at the appeal was concerned, Mr Matthew Sorel-Cameron, who has appeared for the interested party before us, accepts that the issue of promptness of notification was not specifically referred to. As already indicated, the interested party's case was that nothing was heard from the claimant for about a year. Her case was that in addition to the letter of 6 February 2008 she had sent in three letters during the relevant period on 26 March 2008, 12 May 2008 and 14 August 2008 notifying the interested party of her earned income and enclosing relevant payslips.
17. As I have indicated, it was the interested party's case that it had never received any of those letters. That is why its case was as I have indicated in paragraph 16. It also explains why it was difficult, albeit not impossible, for the interested party to put an alternative case, namely, that the three letters said by the claimant to have been sent were not communicated as soon as reasonably practicable after receipt of any relevant earnings.
18. I need not go into detail for present purposes, save simply to record that the factual conclusion arrived at by the Crown Court was, giving the claimant the benefit of the doubt, that the three letters were indeed sent or delivered to the interested party. This conclusion thus involved a rejection of the way the case had been presented by the prosecution.
19. However, notwithstanding that conclusion, the court went on to dismiss the claimant's appeal on the basis that the notifications that she did give were not prompt. The court's conclusion in this regard was expressed as follows:

"We have had to look at and arrive at some conclusions in relation to the timeliness of the steps that she took at different stages. We have had to apply the law strictly and we have had to look at whether necessary steps were indeed taken promptly. Promptness is defined by the statute and means that a step is taken promptly if, and only, if it is given as soon as reasonably practicable after a changes occurs. We are not satisfied in this case that steps were taken and indeed the prosecution has satisfied us that they weren't taken promptly or sufficiently or with sufficient clarity to communicate the overall picture. The initial payslip was not followed up by any details until 26 March, a period of some 6 or 7 weeks later. Another 6 weeks went by until 12 May 2008. We for present purposes accept the bone fides of Mr and Mrs Taffs that those letters were sent. There was then another gap in the communication of information until 14 August and that too in our judgment cannot be said by any reasonable construction to be as soon as reasonably practical for the communication of the changing pattern of payment and receipt of payslips. Five payslips were sent with that August letter. She left work on 25 October. Again, that important step or change appears not to have been notified, at least directly, though it is fair to say that it emerged indirectly in a Department of Work and Pensions document but that does not in our judgment constitute sufficient communication of any significant change. And then perhaps most significantly of all the next set of payslips are sent in February 2010 in response to her request from Harlow on 16 January. No payslips were sent between August 08 and February 09 and that is in our judgment a significant failure, albeit one that is not smacking of dishonesty but this is a fairly rigorous section and there needs to be rigorous compliance and the need for rigorous compliance has had been set out very clearly in the earlier correspondence and we were conscious that in the past Mrs Taffs told us and were we accept that there may have been easier arrangements whereby on a weekly sheet she was able to include earning figures but that system had ceased, there was now a new system and it was incumbent on her to send payslips in a timely way. She has failed to do so and that in our judgment amounts to a failure under this section. I very much regret to say the appeal is refused."

20. This is not the way case had been put against the claimant and the question was whether the Crown Court was justified in dismissing her appeal on this alternative basis. Mr Sorel-Cameron submits that it was entitled to do so on the basis that the issue was sufficiently deployed during the hearing for it not to be unfair to the claimant for the alternative basis to be considered and that the evidence justified the finding. Miss Emma Goodall, who has appeared before us on this appeal, submits that it was not a fair or appropriate course in the circumstances. They have both in their skeleton arguments helpfully drawn our attention to various authorities (including R v Falconer-Atlee (1974) 58 Cr App R 348, R v Cox, Brown [1984] Crim LR 179, R v Crawford [2001] EWCA Crim 543 and R v Wood [2000] WL 1026996), and Mr Sorel-Cameron in his oral argument has drawn our attention to a number of authorities specifically, where this kind of issue has arisen in the past.
21. For my part I do not think that a detailed analysis of those authorities is called for. In my judgment, notwithstanding Mr Sorel-Cameron's valiant efforts to submit to the contrary, a review of the full transcript in this case shows that the issue was not sufficiently fully deployed and articulated for the Crown Court to have dismissed the appeal on the basis that I have indicated.
22. The potential issue appears to have surfaced first during the following interchange during the cross-examination of the claimant by Miss White:

"Judge Turner: And we were going to have to take a view on the timeliness of the communications in the sequence, if we accept they were sent but went missing, if you see what I mean. What I want to know is whether you're... putting full square to Mrs Taffs that these are some sort of ex post facto forgeries or that she's, you know, this is a put-up job, to try to throw a smokescreen. I'm not sure whether that's part of your case.

Ms White: Your Honour, my case is as per Mrs Conlong explained yesterday, we did not receive those letters, we were not notified.

Judge Turner: Yes, I think it would help me to now whether you're challenging whether those were actually sent.

Ms White: Well, I think I'm bound to challenge whether or not they were actually sent. I'm bound to put it to Mrs Taffs at least. [Mrs Conlong was a counter fraud and corruption officer employed by the interested party and who gave evidence for the prosecution]."

It was during this passage that the judge first raised the potential of this alternative basis.

23. This demonstrates that the judge at least had in mind taking a view "on the timeliness of the communications in the sequence." He returned to the issue later in discussions with both counsel before they made their closing submissions. At the Crown Court the claimant was represented by a Mr Myers and again an interchange took place as follows:

"Judge Turner: But then we have got to think about what has happened in between, and even on your case, the first communication comes on 26 March.

Mr Myers: your Honour, yes.

Judge Turner: And we, I suppose, will have to think and it would be helpful to hear you on this... to think whether that gap alone between 6 February and 26 March is... prompt and whether... even 5 - 6 weeks, falls foul... assuming we are satisfied the 26 March happened. You have got a receipt, and that's obviously not been... suggested that's forgery, we are going to have to think about what we make of that.

Mr Myers: Your Honour, yes, may I say -

Judge Turner: And then we will have to think about what we make of the May letter, the August letter, and we know there is some December communication of course, and in the December communication, the customs document is sent, more wage slips are sent, et cetera, and then we have got the February.

Mr Myers: Your Honour... it is not the way the Crown has put the case. The Crown has not put the case on the basis that the letter of 26 March is untimely.

Judge Turner: No, we are going to have to - their case is... that it didn't happen.

Mr Myers: That's right, but they are not saying - well, again, my learned friend has never suggested that even if, never suggested to the witnesses, for example, that even if that letter was sent on 26 March and handed in, that they were still guilty of this offence, because it was untimely.

Judge Turner: Well, this is what I am trying to flush out.

Mr Myers: It has not been suggested at all in the course of the case.

Judge Turner: I want to hear - Miss White we need to know - how you are putting your case. That is why I was slightly pressing you this morning, to see whether you were saying these other documents were a put-up job by Mr and Mrs Taffs.

Mr Myers: Well, that has been suggested now, your Honour.

Judge Turner: Well, just about.

Mr Myers: Exactly.

Miss White: Well, your Honour, the council's case is and always has been they didn't receive those letters. I did say at the beginning when I opened the case..."

24. The judge returned to the whole issue later when Miss White was making her submissions:

"Judge Turner: I know it is the consequences of various findings we make. If we thought that they had been sent or may have been sent [and he was plainly there referring to these other three letters] I think that what I am wanting to know is whether you'd suggest, as a matter of law, we could still convict on, for example, the gap in time... between 6 February letter which you did get, saying I'm training, might be working, here's the first £65, et cetera, on the face of it perfectly sensible declaration, then nearly two months goes by before, on Mrs Taffs's case, there is another communication. Now it seems to me it might be open to the prosecution to say that that in itself is not a prompt notification within the meaning of law.

Miss White: your Honour, and of course there is an issue of promptness there and I did highlight that yesterday morning and I said even accepting that there is an issue of promptness. The issue of promptness is of course a matter of fact for yourself and your colleagues."

25. I will turn below to whether it is right to characterise the issue of promptness as simply a matter of fact for the court. Miss White did emphasise again to the judge that the interested party's case was that the three letters were never received. The judge indicated that he understood that. There was a further short interchange at this point:

"Mr Myers: Your Honour, what I would say about that is it was never put to the witness, it was never actually put to Mrs Taffs that even if those letters were served that they weren't prompt. It's never been, if my understanding is, part of the Crown's case, that that's what they are saying. They are simply saying --

Judge Turner: But we have to apply the law."

26. Mr Myers had made it very clear on a number of occasions that the prosecution case had never been put in a way which permitted court to assess the issue of whether the three letters were sent promptly within the meaning of the Act. He repeated that he was troubled that this issue had never been raised in the course of the trial and the judge responded as follows:

"Judge Turner: Well, Miss White is perfectly entitled, isn't she, to point to just the accepted facts of the chronology and invite us to be satisfied to the criminal standard that under 112.1.F prompt means prompt and if and only if it is done as soon as reasonably practicable after the change occurs and she might want to say to us the gap between the beginning of February and the end of March, 5 or 6 weeks, isn't prompt. She might want to say that.

Mr Myers: Well, she might want to say that but in my respectful submission if she says that she ought fairly to have put that to the appellant and said well, why was there the delay if that was the case. It seems to me that the Crown only ever put their case on the basis that it wasn't done, they never put it, not put to the witnesses, not put to Mrs Taffs, well even if you did it, look even if you did it why is it that you waited, why is it that it wasn't the day after."

27. There was discussion between the judge and Mr Myers about the "one month" period referred to in the letter from the interested party dated 20 February 2008 to which I have referred. The judge referred to it as "an administrative figure" though it constituted a "guideline" and "sent a signal". Mr Myers responded in this fashion:

"Mr Myers: Well, it might send a signal your Honour but the fact is that if the Crown are going to argue now that these were not prompt they perhaps should have dealt with it in the course of evidence as I have already said and perhaps in the information that they send out, they should actually say if this is not dealt with as soon as is practicable on each and every occasion.

Judge Turner: Well I know but people are presumed to know the law that is the rough old thing about the British system.

Mr Myers: I appreciate that your Honour and I accept that but what I am saying is the Crown have never put their case on the basis that the cross-examination was never on that basis."

28. Mr Myers could not have made his position clearer and he did so on a number of occasions. In my judgment the objections he took to approaching the case on this alternative basis were sound. Miss White left this approach on the very tentative basis of the issue being one of fact and can hardly be said to have been pressing the point forcefully. In paragraphs 2 and 9 of this judgment I have identified the issues that would need to be resolved if a question arose of whether a notification of change was "prompt". The onus is on the prosecution to allege and prove that a notification, if given, was not prompt in the sense defined in the Act. This does, it seems to me, mean that the date or time of the notification needs to be established and if the evidence is that it was some time after the material change of circumstances of the benefit claimant, the allegation must be made that the notification was not made "as soon as reasonably practicable thereafter". For my part I would have said that if a case is to be presented on this basis the relevant averment should be set out in the summons. However, if they are not the case should not be allowed to commence until the defendant knows precisely what delay in notification is said by the prosecution to have been longer than reasonably practicable. What is reasonably practicable in any particular case may depend in part on the individual circumstances of the benefit claimant but nonetheless the prosecution bears the burden of proof on the issue. In this case the prosecution have said nothing about the timing of the missing letters in relation to the relevant change of circumstances because, of course, from the interested party's point of view they had never been received. Whilst, as I have said, it might have been difficult in those circumstances for the prosecution to put its case on the alternative basis, had it done so it would have been necessary to make and establish the case along the lines I have indicated.
29. As it was, no questions were put to the claimant in cross-examination that reflected on this issue. Indeed, had they been put counsel might well have been justified in saying that she had not come to court prepared to explain (and perhaps produce evidence to support) precisely why so many days had elapsed between the change of circumstances and the notification question. But at all events those issue were never ventilated in this case. It is not enough to be said that it is "a matter of fact" for the court or for court to take a view. The allegation is one of a criminal offence and the appropriate burdens and standards of proof must be observed.
30. In my judgment the judge was, with respect, wrong to approach the appeal on the alternative basis and by doing so adopted an approach that was unfair to the claimant in the circumstances.
31. I would grant this application for judicial review and quash the decision of the Crown Court.
32. LORD JUSTICE LAWS: I entirely agree that the order of the Crown Court was unfairly arrived at and must be quashed.
33. LORD JUSTICE LAWS: So far as the formalities are concerned, my Lord referred to an appeal but actually this is a judicial review, is it not, and the relief sought, I am looking at page 16 in tab 5 of the bundle, is simply a quashing order of the decision of the Chelmsford Crown Court. Where would that leave your client's conviction in the Magistrates' Court, Miss Goodall? Presumably you also need a mandamus to the Crown Court to direct the appeal to be allowed. That would be the effect of what my Lord was saying.
34. MISS GOODALL: Or alternatively a substitution pursuant to section 31, perhaps, as your Lordships indicated during the course of the judgment. I suspect both would arrive at the same position.
35. LORD JUSTICE LAWS: Substitute? Say that again?
36. MISS GOODALL: Your Lordships, I would submit, have the power, as I understood your Lordships' judgment to indicate, pursuant to section 31 of the Supreme Court Act to substitute this court's decision for the lower court.
37. LORD JUSTICE LAWS: We can do that in a judicial review, can we? That will do, yes. Presumably you don't resist that, Mr Sorel-Cameron?
38. MR SOREL-CAMERON: My Lord, no, I don't think I can. It is a matter for the court as a discretionary matter. I can set the test out if the court so desires.
39. LORD JUSTICE LAWS: No, I don't think that is necessary.
40. MISS GOODALL: It seems that if the decision is that the way in which Judge Turner dealt with it was wrong then the only conclusion must be that the appeal is allowed.
41. LORD JUSTICE LAWS: Quite so. We quash the order of the Chelmsford Crown Court and substitute an order that the appeal from the magistrates be allowed. Anything else?
42. MISS GOODALL: My Lord, yes. The only remaining matter is that of costs.
43. LORD JUSTICE LAWS: Mmm-hmm.
44. MISS GOODALL: The claimant is currently publicly funded.
45. LORD JUSTICE LAWS: Yes.
46. MISS GOODALL: But I understand that that still does not prevent any issue in respect of a claim of costs against the interested party for having contested the matter. So I do make such a claim.
47. LORD JUSTICE LAWS: Against the interested party? I don't know if we have power to make an order out of central funds in a judicial review, although of course it relates to a criminal court or matter. Your application is as against the interested party.
48. MISS GOODALL: Indeed. Costs following cause in the usual way.
49. LORD JUSTICE LAWS: Mr Sorel-Cameron?
50. MR SOREL-CAMERON: Well, my Lords, I would say firstly that this is an appeal against the decision of Chelmsford Crown Court. I appreciate the interested party has taken part.
51. LORD JUSTICE LAWS: You have defended it.
52. MR SOREL-CAMERON: Indeed. I have not seen a schedule of costs from the other side.
53. LORD JUSTICE LAWS: I think there is one.
54. MR SOREL-CAMERON: There is a schedule of costs from the interested party. They were served.
55. LORD JUSTICE LAWS: I see, right. It is a legal aid case so there won't be a schedule, is that right?
56. MR SOREL-CAMERON: I don't know if legal aid costs are being sought. As I understood it it was costs outside of legal aid being sought. I don't know if my learned friend can assist.
57. MISS GOODALL: As I understand the position -- and I must admit I am not as familiar as most who appear before your Lordship on civil matters -- there is a mechanism whereby those who are publicly funded make a costs application under inter partes rates against the other side.
58. LORD JUSTICE LAWS: In relation to her own expenses, you mean in relation to the legal aid costs?
59. MISS GOODALL: Indeed.
60. LORD JUSTICE LAWS: Sure, you can make such an application.
61. MISS GOODALL: The Legal Services Commission should not have to bear the costs.
62. LORD JUSTICE LAWS: We deal with it on the same footing as we would an application by a privately funded party.
63. MISS GOODALL: Indeed.
64. LORD JUSTICE LAWS: In some circumstances there are differences, but not here. Would you resist such an order, Mr Sorel-Cameron?
65. MR SOREL-CAMERON: I don't think I can resist the order in the terms made; we are the unsuccessful party. I cannot submit on quantum, because I have no --
66. LORD JUSTICE LAWS: They will have to be assessed.
67. MISS GOODALL: As I understand it your Lordships unfortunately do not have the power to make a summary assessment of costs because we are publicly funded.
68. LORD JUSTICE LAWS: That's right. We will order that the respondent pay the applicant's costs. There will be -- I think what we have to do is to order a detailed assessment for the purposes of the Legal Services Commission.
69. MISS GOODALL: Indeed, thank you.
70. LORD JUSTICE LAWS: If that is right, that is what we will do. I think that is right.
71. MISS GOODALL: That is my understanding of the provisions.
72. LORD JUSTICE LAWS: We would be obliged if counsel would cooperate and produce an agreed draft order and hand it into the associate. Thank you very much for your assistance.