Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT BANFF

Judgement

Of

Sheriff Philip Mann

In causa

Procurator Fiscal, Banff

Against

Elizabeth Carol McLeod

Banff 18 July 2013

1. This case concerns the prosecution of Elizabeth Carol McLeod, brought under section 111A(1A) of the Social Security Administration Act 1992, in respect of an alleged failure to promptly notify a change of circumstances affecting her entitlement to Disability Living Allowance. The case went to trial before me over three separate days, occupying virtually two full days of court time. Following submissions I reserved judgement and now take this opportunity to intimate my decision. I have decided to find the charge not proven and, accordingly, I acquit the accused.

2. The charge, as amended during the trial, reads:

"Between 27th November 2009 and 2nd September 2010 at Meikle Ribrae, Forglen, Turriff AB53 4JE or elsewhere you Elizabeth Carol McLeod did knowingly fail to give prompt notification in the prescribed form to officials of the Department for Work and Pensions, Disability and Carers Service the prescribed person, of a change of circumstances which you knew affected your entitlement to benefit or other payment or advantage namely Disability Living Allowance, as defined in the aftermentioned Act, in that you failed to report that there had been improvements in your ability to manage your declared incapacities/disabilities resulting in a reduction in the care, supervision and assistance you required from others to perform everyday tasks, tasks which you regularly performed without care, supervision and assistance from another whilst employed by Co-operative Group Ltd, Robert Owen House, 87-97 Bath Street, Glasgow G2 2EE as a Customer Service Assistant at Scottish Co-operative, Balmelie Street, Turriff AB53 4DW and you did thereby obtain Disability Living Allowance of £2,800.85 to which you were not entitled;

Contrary to the Social Security Administration Act 1992, Section 111A(1A) as amended"

3. Section 111A(1A) of the Act , as it applies to Scotland, reads:

"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 knowingly fails to give a prompt notification of that change in the prescribed manner to the prescribed person."

4. There are four distinct elements in the charge as set out in section 111A(1A). In my view, the crown must prove each of those elements beyond reasonable doubt to secure a conviction. The defence, rightly in my view, took no issue with paragraph (b), so that I am now concerned only with paragraphs (a), (c) and (d).

5. What must be proved in relation to paragraph (a) is that there has been a change of circumstances affecting the accused's entitlement to the benefit. For the purpose of this provision a change in circumstances must affect the entitlement to benefit in the sense that the entitlement would be reduced as a result of the change.

6. In relation to paragraph (c) the accused must know that the change affects the entitlement in that way. That means that the accused must know that the change would, as opposed to could, affect the entitlement in that way.

7. In relation to paragraph (d) the accused must knowingly fail to give prompt notification in the prescribed manner to the prescribed person. This must involve the accused knowing what is the prescribed manner and who is the prescribed person.

8. I find it convenient to deal with paragraph (d) first. The evidence was that the accused had been in receipt of Disability Living Allowance since about 2002 and had last completed an application form upon a change of circumstances in 2006. In her application form in 2006 the accused had described various disabilities and difficulties, mainly resulting from a medical condition involving deterioration of her spine. The difficulties included being unable to bend or to lift objects such as heavy pots and pans. Between 27 November 2009 and 16 January 2010 the accused had worked at the Co-operative store mentioned in the charge. This much was not in dispute. What was in dispute was what the accused actually did during her work. I will come back to that but in relation to paragraph (d) the accused maintained that she had notified the fact that she had been working by, inter alia, telephoning her local job centre office.

9. During submissions I asked the procurator fiscal depute if he could address me on what had been prescribed as to the manner of and the person to whom notification of any changes required to be made. He was unable to do so immediately and requested an adjournment which I granted. After the adjournment he advised me that he had been unable to find in the legislation any definition of "prescribed manner" and "prescribed person". He advised me that he had consulted three senior colleagues and an expert within the Department of Work and Pensions and that he had been advised that the terms had not been defined. "Prescribed", he said, simply meant "prescribed in the leaflets and forms produced by the Department". On that basis, his assertion was to the effect that notification had to be made to the Disability Living Allowance office in Blackpool, that being the office which dealt with the particular benefit and no other office having been indicated on the form as being the office to which notification of any change in circumstances required to be made.

10. The evidence from George Blackwood, a fraud investigator with the Department for Work and Pensions, was that there was no record of the accused having made any notification of a change of circumstances to the Blackpool Office. This was accepted by the accused but she maintained that she had given notification of her attempt to work by way of her employment at the Co-operative store by telephoning and leaving a message at the local Job Centre for Billy Gardner, an official there, and also in a face to face meeting with Billy Gardner. She maintained that she had told Billy Gardner "everything". Billy Gardner's evidence was that he knew nothing about the accused advising him about going to work and that "I have no record of Mrs Macleod giving a message about not sticking with a job. I didn't get a message saying that she [had been] working".

11. Defence productions 3 and 5 were pages 1 and 2 of an Action Plan completed over three interviews with the accused, the first being on 8 July 2009 conducted by Mr Gardner's colleague, K. Coull and the second and third interviews being on 28 January 2010 and 6 September 2010, respectively, conducted by Mr Gardner. In respect of the first interview it is noted that the accused was looking for a job in certain types of work but that she would find returning to work to be too difficult health wise. There is a brief description of her back problem and a further comment that the accused did not feel that she would be fit enough to consider work. In relation to the second interview it is noted "Back problem much the same. DLA still the same. Will ask for a review of DLA care." In relation to the third interview it is noted "Has been diagnosed with rheumatoid arthritis.......... Never bothered asking about review of dla"

12. On the basis of the defence productions and considering the proximity in date of the second interview with the termination of employment I considered it to be quite likely that the accused mentioned the situation to Mr Gardner and that she also telephoned the local Job Centre office and left a message for him about that. Although Mr Gardner was credible I could not find him to be entirely reliable because it transpired during his evidence that he had been retired from his position for nearly three years since his interviews with the accused and he seemed to me to be less than enthusiastic about casting his mind back to those interviews. At the very least, the evidence of the accused and the defence productions left me with a reasonable doubt about the evidence of Mr Gardner. I have to give the benefit of that doubt to the accused.

13. It turns out that the procurator fiscal depute's submission about prescribed manner and prescribed person is not correct. A quick check on Westlaw reveals the existence of the Social Security (Notification of Change of Circumstances) Regulations 2001/3252. Regulation 5(1) of those regulations in its version in force at the relevant time is in the following terms:

"Where the benefit or other payment or advantage affected by the change of circumstances is not a jobseeker's allowance, housing benefit or council tax benefit, notice must be given to the Secretary of State at the appropriate office-

(a) in writing or by telephone (unless the Secretary of State determines in any particular case that notice must be in writing or may be given otherwise than in writing or by telephone); or

(b) in writing if in any class of case he requires written notice (unless he determines in any particular case to accept notice given otherwise than in writing).

Regulation 5(2) of those regulations provides:

"In this regulation "the appropriate office" has the same meaning as in the Social Security (Claims and Payments) Regulations 1987"

Regulation 2 of the Social Security (Claims and Payments) Regulations 1987 defines "appropriate office" thus:

" 'appropriate office' means an office of the Department for Work and Pensions and, where any provision in these Regulations relates to a claim, notice or other information, evidence or document being received by or sent, delivered or otherwise furnished in writing to an appropriate office, includes a postal address specified by the Secretary of State for that purpose"

The words after "Pensions" in this definition seem to be particular to the 1987 regulations and, therefore, for the purpose of these proceedings "prescribed person" must mean an office of the Department for Work and Pensions. I do not understand that a Job Centre office is anything other than an office of the Department for Work and Pensions and therefore if the accused made a notification by telephone to the local job centre office she made a notification in the prescribed manner to the prescribed person.

14. Having given the benefit of the doubt to the accused in relation to her communications with Mr Gardner, including the phone call to the local job centre office, I also give her the benefit of the doubt as to what exactly was conveyed by that phone call. It seems to me that a notification that the accused has tried to work is sufficient notification of a possible change of circumstances such as to enable the Department for Work and Pensions to initiate a review of her entitlement to benefit. That being the case, the crown has failed to prove one of the essential elements of the charge and an acquittal must follow.

15. But if I am wrong to acquit the accused on the foregoing basis then she must be acquitted on the basis that the crown has failed to prove that there was a change of circumstances that would, as opposed to could, affect the accused's entitlement to benefit. They have also failed to prove that the accused knew that there was a change that would, as opposed to could, affect her entitlement to benefit.

16. Evidence was given by two of the accused's supervisors at the store where she worked between 27 November 2009 and 16 January 2010. They said that she was engaged, inter alia, in stacking shelves which involved bending, lifting heavy items, such as bags of potatoes, and pushing heavy trolleys. According to George Blackwood, the ability of the accused to perform these tasks was directly contradictory of the disabilities and difficulties claimed by the accused in her 2006 application.

17. The accused gave evidence that her activities during her work did not involve the bending, heavy lifting and pushing of heavy trolleys described by the two supervisors. Her evidence was that her work involved standing at a checkout counter, during which she would take a break by sitting on a window sill, and occasionally the rearrangement of light stock items, such as bags of crisps, on the display shelves. Her evidence was that she had tried the job but found that it was too much for her on account of her disabilities. She maintained that position in the interview after mentioned.

18. During an interview with George Blackwood the accused accepted that there had been an improvement in her health that had allowed her to try to go back to work and that that may well have conflicted with the description of her disabilities in her 2006 application. She accepted that she had signed a declaration on the application form acknowledging that she had an obligation to tell the Department for Work and Pensions about changes in her condition and that the form gave examples of such changes. She said that if she had been able to carry on with the job she would have informed the department and she would have expected her entitlement to Disability Living Allowance to be withdrawn.

19. George Blackwood gave evidence that Disability Living Allowance is a benefit awarded to assist people who have difficulty doing things in their day to day lives, such as walking, dressing, cooking, lifting, and bending and so on. He confirmed that recipients of this benefit have an obligation to inform the Department for Work and Pensions of any improvements in their ability to perform such day to day tasks so that their entitlement to benefit can be reassessed. He gave the opinion that the improvement in the accused's condition that must have occurred to enable her to perform her duties at the Co-operative store as described by the two supervisors would have resulted in her benefit being reduced. Mr Blackwood was, however, careful to say on more than one occasion that he was not an expert on Disability Living Allowance. In examination in chief he said; "I am not an expert on DLA but I will answer your questions as best I can" He also said; "So far as I am aware [a leaflet explaining that changes in circumstances must be notified] would have been sent to this applicant, but I am not a DLA expert." He also said; "According to the decision makers who made the decision on her claim, what she was doing in her work was inconsistent with her original reasons for claiming the benefit."

20. George Blackwood was a credible witness. He was also reliable in relation to the investigation that he carried out, including the interview of the accused. However, I did not regard Mr Blackwood as being reliable in relation to the assessment of Disability Living Allowance or in relation to the effect of changes in circumstances on entitlement to that benefit. This is because he candidly admitted that he was not an expert on that benefit and, effectively, that it was up to others to make such an assessment. The most that I could take from Mr Blackwood's evidence was that the apparent change in circumstances that allowed the accused to work for a period could have affected her benefit. But even then, I should say that in regard to what the accused actually did during her work at the Co-operative store I found her to be a credible and reliable witness and although the two supervisors had no axe to grind I thought their evidence to be somewhat hesitant and tinged with an element of speculation about what the accused must have done during her work. In these circumstances I have a reasonable doubt as to what exactly was done by the accused during her work and I must give the benefit of that doubt to her and proceed on the basis that her account is the more accurate.

21. I found it impossible to determine from the prosecution evidence the criteria for eligibility for Disability Living Allowance. There was no reliable evidence as to what changes in circumstances would, as opposed to could, affect the accused's entitlement to benefit in the sense that it would be reduced. There was no reliable evidence that what the accused was able to do during her work at the Co-operative store amounted to a change of circumstances that would have, as opposed to could have, affected her entitlement to benefit. That being the case there could not be any reliable evidence that the accused knew that any change of circumstances that had occurred would, as opposed to could, affect her entitlement to benefits.

22. The various forms produced during the trial gave examples of matters that required to be notified. It seems to me that these were given as examples of changes that could affect entitlement to benefit. That, no doubt, accurately reflects the civil obligation of the recipient of benefits so as to provide the basis upon which the entitlement to benefits can be reassessed and upon which any overpayment of benefits can be reclaimed. But the criminal sanction imposed by section 111A(1A) of the Act can only be applied if, in the first place, the claimant knows that there has been a change of circumstances - whether or not of the kind given as example - that would, as opposed to could, affect the entitlement to benefits.

23. For all of the foregoing reasons an acquittal is inevitable on the basis that the crown has failed to prove the matters referred to in paragraphs (a) and (c) of section 111A(1A) of the Act beyond reasonable doubt.

24. Parties cited no authorities in the course of their submissions and I have been unable to uncover any Scottish cases involving section 111A(1A) of the 1992 Act. However, I am fortified in all of the above by reference to two English cases. They deal with section 112(1A) of the Act, which creates an offence the elements of which are substantially the same as the elements of the offence created by section 111A(1A). The first of these cases is King v Kerrier District Council [2006] EWHC 500 (Admin), available on Westlaw. In that case it was held that each element of the offence required to be proved to the criminal standard of proof and specifically that proof of an offence under the section required more than the possibility that a change in circumstances had affected an entitlement to benefit. It was necessary to prove to the criminal standard that the change had affected entitlement. The second of these cases is Coventry City Council v Vassell [2011] EWHC 1542, also available on Westlaw. In that case, applying the case of King, it was held that a person was not guilty under section 112(1A) of the Act of failing to notify of a change of circumstances which would affect his entitlement to housing benefit and council tax benefit, where he was only aware that the change could, as opposed to would, affect his entitlement. That case also touched on the necessity of the accused having been made aware of the prescribed manner in which and the prescribed person to whom notification required to be made. Some of the comments made therein to the necessity for this information to be given clearly on the relevant forms are apposite to this case but on the basis that I have given the benefit of doubt to the accused in relation to the making of a notification I need say nothing more on that subject.

Sheriff Philip Mann