CH CJSA 1408 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 01 July 2015 |
| Neutral Citation | 2015 UKUT 373 AAC |
| Subject Matter | Jobseekers allowance |
| Respondent | Secretary of State for Work and Pensions (JSA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CJSA 1408 2013 |
| Appellant | CH |
[2016] AACR 28
(CH v Secretary of State for Work and Pensions (JSA)
[2015] UKUT 373 (AAC))
Judge Ward CJSA/1408/2013
1 July 2015 CJSA/1409/2013
Jobseeker’s allowance – standard form of jobseeker’s agreement 2012 – non‑compliance with Jobseeker’s Allowance Regulations 1996 – effect must be given to the rights a claimant ought to have been advised about
When claiming jobseeker’s allowance (JSA) in 2012 the claimant refused to sign a jobseeker’s agreement on the basis that, among other things, it failed to address his disabilities. For this reason the Secretary of State decided that he was not entitled to either ordinary JSA payments or hardship payments and the First-tier Tribunal (F-tT) upheld both decisions on appeal. The claimant appealed to the Upper Tribunal (UT) and among the issues before it was whether the jobseeker’s agreement met the legal requirement under regulation 31 of the Jobseeker’s Allowance Regulations 1996 to notify a claimant of his rights, the consequences if it did not, and the mechanisms for dealing with disputes, particularly those occasioned by the claimant’s disability. The Secretary of State initially accepted that the F-tT had erred regarding the hardship appeal and eventually effectively conceded both appeals.
Held, allowing the appeal, that:
- the jobseeker’s agreement failed to comply with regulation 31(g) as it made no reference to the claimant’s right under section 9(6) and (7) of the Jobseekers Act 1995 to require a referral to be made to a decision-maker who (a) had the power to decide that compliance with the proposed agreement would be unreasonable and to direct that it be changed and (b) that the right of referral arose prior to the claimant signing the agreement (paragraph 28)
- the purpose of regulation 31(g) was to ensure that claimants had been informed of their right to have a proposed jobseeker’s agreement looked at by someone other than the employment officer and the claimant should have been given the chance to have his reservations about the proposed jobseeker’s agreement considered by the person envisaged by the legislation (paragraphs 31 to 33)
- there was no evidence of a distinct adjudication mechanism, via section 9(6), for the disputed content of the jobseeker’s agreement to be the subject of a decision by the decision-maker (paragraph 34);
- the F-tT erred in law insofar as it failed to find that the jobseeker’s agreement had wrongfully failed to refer to the correct procedure and that the claimant’s dispute did not receive the consideration provided for by law (paragraph 40);
- the Secretary of State conceded that even if the claimant were not to succeed on his reference under section 9(6) and application under section 9(7)(c), he would be entitled to the hardship allowance and that the F-tT erred in law by failing to rule on the hardship appeal (paragraph 45).
The judge set aside both decisions of the F-tT, referred the proposed jobseeker’s agreement to the Secretary of State for determination and allowed the appeal against the refusal of payments of the hardship allowance.
DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Decision:
I extend time so as to validate the claimant’s submission dated 15 June 2015. Further, I waive the claimant’s non-compliance with the directions of 9 April 2015.
The appeals are allowed.
The decision of the First-tier Tribunal sitting at Plymouth on 24 September 2012 under reference SC200/12/00528 involved the making of an error of law and is set aside.
Acting under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), I substitute a decision in the following terms:
The Department for Work and Pension’s (DWP) decision of 6 February 2012 is set aside. The proposed jobseeker’s agreement in respect of the claimant is to be referred to the Secretary of State under section 9(6) of the Jobseekers Act 1995 (the 1995 Act) for determination whether it is reasonable to expect the claimant to have to comply with the proposed agreement and for consideration of whether to make direction under section 9(7). This will carry fresh appeal rights to the First-tier Tribunal.
The decision of the First-tier Tribunal sitting at Plymouth on 24 September 2012 under reference SC200/12/00590 involved the making of an error of law and is set aside.
Acting under section 12(2) of the 2007 Act, I substitute a decision in the following terms:
The appeal is allowed to the extent that the claimant is entitled to payments of the hardship allowance between 26 January 2012 and 17 December 2012 (inclusive).
REASONS FOR DECISION
1. The case raises, in particular, significant issues about whether the form of jobseeker’s agreement in use in the period 2012 to 2014 was compliant with the law, the consequences if it was not, and the mechanisms for dealing with disputes in relation to it, particularly where those disputes are occasioned by matters said to relate to a claimant’s disability. Readers who are interested in those issues rather than the minutiae of the process of this case may wish to skip [5] to [16].
2. The claimant had appealed to the First-tier Tribunal (the tribunal) against two decisions:
(a) in appeal SC200/12/00528 (now CJSA/1409/2013) against a decision dated 6 February 2012 in the following terms:
“Jobseeker’s allowance is not payable from 04/01/2012. This is because [the claimant] has not, and cannot be treated as having, entered into a jobseeker’s agreement which remains in force from 04/01/2012.”
I refer this as the “main appeal”.
While the claimant argues that his claim should run from 29 December 2011, even if the scope of the original appeal against the decision did extend to the start date (as to which I make no finding), (i) the evidence at pages 82–84 of file 1409 does not show that a claim was made on the earlier date, merely that the claimant tried to do so and (ii) the circumstances do not fall within any of the backdating provisions of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968).
(b) in appeal SC200/12/00590 (now CJSA/1408/2013), against a decision dated 15 February 2012 in the following terms:
“[The claimant] is not entitled to jobseeker’s allowance hardship payments from 26/1/12. This is because he does not satisfy the conditions of entitlement to jobseeker’s allowance.”
I refer to this as the “hardship appeal”.
3. The claimant’s primary point in the main appeal was that he should not be expected to sign the form of jobseeker’s agreement which had been presented to him. Much of his argument revolved around the law of contract, the relevance of which the tribunal dismissed, rightly: see 1995 Act, section 9(2) (set out at [18] below). If one looks rather to the substantive issues, they are related to the claimant’s complaint that the proposed jobseeker’s agreement failed to address his asserted disabilities.
4. In the hardship appeal the arguments as put forward were essentially the same, albeit the legal consequences were potentially different.
5. It would be fair to say that the claimant sets considerable store by asserting what he regards as rights he possesses in respect of his disability. He has, or has had, a long-running civil action against the DWP. In relation to the present matter, in grounds of appeal extending to 183 pages plus appendices, he sought permission to appeal from the First-tier Tribunal. A District Tribunal Judge was persuaded to grant permission to appeal on the questions:
“(i) whether the Tribunal accurately identified the issues on which it was required to make a decision for the purposes of the appeals and (ii) whether the proceedings were conducted in a manner fair to the appellant.”
The claimant has, further, at various points disputed the treatment he received in the course of the Upper Tribunal proceedings.
6. The Secretary of State’s initial position was that:
(a) he supported the hardship appeal inasmuch as the tribunal failed to accurately identify the issue and decide upon it;
(b) the decision dismissing the appeal against the DWP’s decision in the main appeal was correct; and
(c) he did not support the appeal insofar as it was based on the tribunal proceedings having been conducted in a...
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