Social security fraud and cohabitation

Joseph Millington considers the thorny question of prosecuting a co-habiting partner in benefit fraud cases.

A perennial issue in benefit fraud cases is how, and if, to prosecute a co-habiting partner.

The primary obligation to give prompt notification of a material change in circumstances is on the person whose entitlement to benefit is liable to be reduced ('A'). (This is the basis of the offence under Section 111A(1A) of the Social Security Administration Act 1992 ('SSAA 1992')).

Typically A is a female partner. Where the material change in circumstances is one of recent cohabitation, both parties will enjoy the benefit of the continuing payments calculated with reference to a single person household. Nonetheless, it is A who will be liable to prosecution under section 111A(1A) SSAA 1992 for dishonest failure to notify.

The offence apparently designed to deal with the other, usually the male, partner ('B') is one of 'dishonestly causing or allowing' that failure to notify promptly, and is contained at s.111A(1B) SSAA 1992.

However, the decision of the Court of Appeal in R v Tilley [2009] EWCA Crim 1426 implicitly posed questions concerning this topic.

In cases involving cohabitation, the offence will only be made it out if there is evidence of action that B could have taken that would have resulted in A discharging her obligation to report (Tilley). Such a narrow interpretation of the offence is necessary to avoid not only the potential criminalisation of a stranger to the relationship, who discovers the material change of circumstances and does nothing, but also the imposition of a positive obligation on B to report the change of circumstances affecting the benefit entitlement of A; an obligation which is not imposed by the statute itself.

In order to address any practical imbalance in the proportion of female defendants in benefit fraud prosecutions, it may therefore be appropriate to consider charging the male partner as an aider and abettor. The inference, in such circumstances, is that B encouraged the commission of the substantive offence by his inaction, intending to benefit from the continuing receipt of benefit payments. The inference may be stronger in cases, such as I have dealt with recently, where the parties continue to deny and attempt to conceal that they were cohabiting at the material time.

Joseph Millington is a barrister at St Philips. He can be contacted on 0121 246 2025.