It is not inappropriate to have a confiscation order run alongside a repayment arrangement. Issues around the sale of a family home are primarily for the enforcement stage.
The Appellant was found to have received a benefit overpayment of £28,226.02 and a repayment agreement was reached with the Benefits Agency.
Nevertheless, the Appellant was charged with offences contrary to s.112 of the Social Security Administration Act 1992 and on 16 September 2015, she pleaded guilty before Magistrates to these offences. Confiscation proceedings were then brought under s.6 of the Proceeds of Crime Act 2002 ("POCA") and the Appellant was made subject to a confiscation order in the sum of £21,686.73.
During the confiscation proceedings, two principal submissions were made on behalf of the Appellant. Firstly, the imposition of a confiscation order in addition to the repayment agreement already in place would be disproportionate. Secondly, the only asset held by the Appellant was a jointly owned family home with her husband, who also suffered from disabilities. Therefore, the inevitable order for sale of this property to satisfy the confiscation order would be disproportionate and unfair in these circumstances.
In response, the Crown firstly submitted that the existing repayment agreement was not a relevant consideration because the prosecution would ensure there was no double-counting. Secondly, the confiscation order was a draconian measure and for that reason the court could not take into account personal circumstances of the Appellant or her spouse
The Judge held that when considering proportionality, the Court must not take into account the existence of a repayment agreement and that any issues with personal circumstances would be taken into consideration at the enforcement stage.
The Appellant appealed against the confiscation aspect of her sentence.
The jurisdiction to make a confiscation order is set out in s.6 POCA. The Court emphasised the decision of R v Waya  UKSC 51 which made clear that POCA had, like the 1995 Act, removed almost all judicial discretion. Following the decision in R v Waya, the following was added in section 6(5) POCA:
[Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount]
The Court has a duty to avoid making a confiscation order which infringes Article 1 of the First Protocol of the ECHR if the order would be disproportionate.
However, there is no general principle that where a confiscation order would require the sale of the family home, a confiscation order should not be made. The appropriate time for consideration of the sale of the family home is at the enforcement stage, should that stage be reached.
In respect of the repayment arrangement, the order is not disproportionate for two reasons. Firstly, it is not certain that the outstanding sum will be repaid, it is only the case that it might be repaid under the voluntary agreement. Secondly, the prosecution have provided an undertaking that there will be no double counting.
13 March 2017