Passmore, R. v

For the criminal notification offences in the Social Security Administration Act 1992, a change of circumstances affects entitlement only if it changes the calculation of the benefit to which the claimant is entitled. It is insufficient that the information might prompt a benefits officer to make further enquiries. A court should not enlarge that criminal duty into a duty to report every matter an officer might wish to investigate, particularly where related regulations impose a differently framed notification duty with civil, rather than penal, consequences. If genuine ambiguity remains in a penal statute, the construction favourable to the defendant applies.

The appellant received housing benefit and council tax benefit. He formed a company in September 2000 but did not notify the benefit authority. He contended that this did not affect his entitlement because he received no income from the company.

At Isleworth Crown Court on 13 October 2006, he was convicted of four offences of dishonestly failing to notify a change of circumstances and three false-statement offences. The judge directed the jury that forming the company affected entitlement because it triggered further questions and investigation, whether or not the amount payable changed.

The appeal concerned whether a change of circumstances affects entitlement for the purposes of section 111A(1A)(a) only where it changes the computation of benefit.

1. Appeal allowed. The judge's direction was wrong. Forming a company did not affect entitlement merely because it prompted a benefits officer to make further enquiries. The convictions were quashed. The prosecution accepted that, if the convictions for failure to notify were unsafe, the convictions for false-statement offences were also unsafe because of the way the case had been presented to the jury.
2. Meaning of “affecting entitlement”. The corresponding language in sections 111A(1A)(a) and 112(1A)(a) of the Social Security Administration Act 1992 must have the same meaning. A change affects entitlement only where it makes a difference to the calculation or amount of benefit to which the claimant is entitled. It is not enough that the change is information which an officer would properly wish to know in checking entitlement.
3. The court treated King v Kerrier District Council [2006] EWHC 500 Admin as persuasive and agreed with its construction. If there had been serious doubt, the penal character of the provision would have required a construction favourable to the defendant.
4. Statutory context. Regulation 75 of the Housing Benefit (General) Regulations 1987 imposed a distinct civil notification duty concerning circumstances which a person might reasonably be expected to know might affect the right to, amount of, or receipt of benefit. It would exceed ordinary statutory construction to read into the criminal offences a broader duty than that expressly imposed by the regulation. The prosecution's arguments on workability and public protection did not justify that expansion.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the convictions: [2007] EWCA Crim 2053.
• Isleworth Crown Court: On 13 October 2006, convicted the appellant of four failure-to-notify offences and three false-statement offences. No citation for that decision is stated in the judgment.