Terms & Conditions

[Paul Mason]

I have a query regarding a possible prosecution case relating to time bars. I will list the relevant details of the case below (sorry for the length of this posting):-

1. CTB awarded from 23.6.03 based on JSA(IB).

2. JSA(IB) ends on 23.11.03 due to starting work – c/c’s not reported.

3. HBMS referral received on 16.10.04 and claim suspended on 19.10.04.

4. QB9 received on 7.12.04 from employer confirming FTW from 3.11.03.

5. Claimant fails to attend IUC’s on 14.1.05, 2.3.05, 15.3.05 and 24.3.05.

6. Decision made on 11.4.05 that his claim should be cancelled from 1.12.03.

7. Claim cancelled on 12.4.05 back to 1.12.03 and o/p letters sent (£570.58).

8. LA C PEN sent on 3.5.05.

9. LA C PEN returned on 18.5.05 and no other sanctions recorded.

10. Prosecution authorised on 3.6.05.

11. Case referred to Legal on 21.6.05 and recommended legislation to be used s.112(1A).

Our Legal section have stated that this case is time-barred under s.116 of the 1992 Act – the reason being is that they believe that we had sufficient evidence on 7.12.04 (date the QB9 was received) to prosecute, therefore, we are over the 3-month time-limit and as regards to the 12-month time limit the offence commenced more than 12 months ago.

My view for what it’s worth is that on c/c’s offences an offence is being committed each day the claimant fails to promptly notify us. Therefore, in this case we could charge/summons for the period from 1.8.04 to 18.10.04 and TIC the period 1.12.03 to 31.7.04.

Our Legal section does not agree and they believe that the offence can only be said to commence around the time the claimant started work and not 10 months later.

My PINS training notes state that the date of ‘sufficient evidence’ will normally be the date of the IUC, without an IUC where do we stand – should we use the date we received the information from HBMS, the date we received the QB9 or even the date the prosecution was authorised by our Chief Financial Officer.

Can anyone offer me any advice regarding this matter or point me in the right direction with regards to any appropriate case law so I can take this case back to our Legal section.

I have also asked PSU for the opinion as well.

Thanks in advance

Paul
(0115 9148527)

[aeverard]

We have recently had a prosecution case challenged by the defence and they relied on a recent case which I think is helpful to understanding the legal issues in your case. The case is called [u:99637e7b86]Eyeson – v- Milton Keynes Council[/u:99637e7b86].

Looking at the facts in your case summary I conclude that the Council had sufficient information to prosecute on 7.12.04 therefore the time limit has indeed expired. I think you will find it very difficult to justify a later date on a S.116 local authority certificate and to do so could be deemed to be an abuse of due process and the LA could face a judicial review.

The claimant is only under an obligation to notify changes in circumstances promptly and there is no indication under S.112 that it is a daily offence contrast this with the offences committed under S.111 delaying an inspector where daily fines can apply.

[Author]

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