This article was prompted by the case of Coventry City Council v Vassel [2011] EWHC 1542 Admin. It explores some of the technicalities that arise in connection with section 112 of the Social Security Administration Act 1992 as amended: ‘Failure to notify a change in circumstances.’ In particular, it looks at mens rea and the difficulties that arise when local authorities fail to give adequate information to benefit claimants on how to notify a change in circumstances. In essence, the local authority is required to state the place, person and manner to whom changes of circumstances should be notified on, or with, all claim forms. Failure to do so is likely to nullify a large number of benefit prosecutions concerning failure to notify changes in circumstances.

For ease of reference the statutory framework is set out below:

Section 112(1A) (inserted by section 16(3) of the Social Security Fraud Act 2001) provides as follows: ‘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 fails to give a prompt notification of that change in the prescribed manner to the prescribed person.’

Change of circumstances

The technicalities arise in connection with section 112(1A) (d) above and for that matter section 111 also. While the primary legislation describes what the claimant should do to notify a change of circumstances, it is the regulations which set out how a claimant is required to fulfil that ­obligation. Under the old 2001 regulations the designated office had to be set out on the claim form. This posed numerous problems for local authorities because the designated office was different for each local authority and many claimants now still apply using old forms or forms which have been generated from sources other than the local authority processing the claim such as the Department for Work and Pensions.

Manner of notification

For the purposes of notification the Housing Benefit regulations mirror the Council Tax Benefit regulations. Regulation 88 of the Social Security Housing Benefit regulations 2006 SI 2006 No 213 requires the notification of a change of circumstances to be made in writing to the designated office. Depending on the structure of each local authority there may be a number of offices to which the claimant may notify a change in ­circumstances. This regulation also makes provision for delivery of the change in circumstances to what is known as a ‘gateway office’ or an office bearing the ‘One’ logo. If the local authority uses a gateway office or number of gateway offices, that office or those offices should also appear on the claim form as additional places to send notifications of changes to. That is ‘the prescribed manner’ for the purposes of section 112(1A)(d). There is also a similar provision in regulation 74 of The Council Tax Benefit Regulations 2006 (SI 215).

Regulation 88 is set out below (duty to notify changes of circumstances):

(1)… if at any time between the making of a claim and a decision being made on it, or during the award of housing benefit, there is a change of circumstances which the claimant, or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, might reasonably be expected to know might affect the claimant’s right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice in writing to the designated office.

(2) In the case of a claimant who sent or delivered his claim to a gateway office in accordance with regulation 84 (date of claim where claim sent or delivered to a gateway office), a change of circumstances may be reported in writing to that office, or to any other gateway office of which he was notified on or with his claim form.

...(5) Where a person resides in a postcode district identified in part 1 or 2 of schedule 2 to the Social Security (Claims and Information) Regulations 1999, he may notify the change of circumstances by giving notice in writing to any office of a designated authority displaying the ONE logo.

Note that the form should say that notification should be in writing. That requirement is not always mentioned on all claim forms. It has become apparent that some local authorities do accept verbal notifications. The question as to whether a local authority accepts the latter is worth asking, particularly if the claimant insists that he has made a verbal notification. The prescribed person will be the local authority processing the claim.

Designated office

The 2006 regulations enable local authorities to state the designated office on forms additional to the claim form. In accordance with regulation 2 of the Social Security Housing Benefit Regulations 2006 no. 213, ‘designated office’ means ‘the office designated by the relevant authority for the receipt of claims to council tax benefit:

(a) by notice upon or with a form approved by it for the purpose of claiming council tax benefit; or (b) by reference upon or with such a form to some other document available from it and sent by electronic means or otherwise on application and without charge; or (c) by any combination of the provisions set out in sub-paragraphs (a) and (b) above’.

The 2006 regulations came into force on 6 March 2006. Any failure to notify in respect of claims made before that date will be dealt with under the 2001 regulations, which stipulate that the designated office must be on the claim form. Solicitors dealing with these earlier claims should therefore look at the claim form to see whether it contains the relevant information. As for claims made after March 2006, enquiries should be made as to whether the designated office has been stated in any other manner which still complies with the regulations.

The duty to include the prescribed information is paramount. If this information is not clearly set out on the claim form the prosecution may not be in a position to prove the ‘knowledge’ element of the offence. Mr Justice Hickinbotton made the following remarks in connection with this obligation: ‘The failure to notify a change of circumstances in section 112(1A)(d) must, in my judgement, be knowing in the sense that the benefit claimant must be aware of the person to whom and the manner in which the notification of the change of circumstances must be made; and must, in that knowledge, not give the notification, promptly, when there has been a change of circumstances requiring to be notified. It will usually be obvious that the notification must be made to the relevant local authority: but, in relation to 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’ (paragraph 66 of Coventry City Council).

The above echoes the basic principle that a person cannot be guilty of an offence except under clear law. If further authority is needed, see Ramage & Perrin v Northampton BC [2007] 1 All ER 929 involving a prosecution in connection with a tree preservation order: a case in which Judge Peter Coulson QC said: ‘As is made clear in part XVII, section 271, pages 705-709 of Statutory Interpretation, a person cannot be guilty of an offence except under clear law.’ See also R v Goldstein (Harry Chaim) [2005] UKHL 63 albeit, Goldstein may have been a misfeasance as opposed to a non-feasance matter.

In the same paragraph Mr Justice Hickinbottom warns that failure to comply with the notification requirements by the local authority can be fatal to the prosecution: ‘On any prosecution, whether the notification requirements have been expressed clearly enough will be a matter of fact for the justices to consider and decide. Where they are insufficiently clear, the justices will usually be able to make a ready finding that the defendant was unaware of the requirements, and therefore did not knowingly fail to notify the change.’

Jack Henriques is a solicitor and trainer for Henriques Training Ltd, and co-author of Local Authority Investigations and Prosecutions 2nd edition