CH v Secretary of State for Work and Pensions (JSA) (No.2)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2018] UKUT 320 (AAC),[2018] UKUT 320 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Jobseekers allowance,Jobseekers allowance - availability for employment,Jobseekers allowance - other,Tribunal procedure,practice - fair hearing,Wikeley,N |
| Date | 25 September 2018 |
| Published date | 09 October 2018 |
CH v SSWP (JSA) (No.2) [2018] UKUT 320 (AAC)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the Appellant, although
not to his material advantage. The decision of the Plymouth First-tier Tribunal dated 23
March 2017 under file reference SC200/15/00725 involves an error of law. The decision
of the First-tier Tribunal is set aside.
The Upper Tribunal is able to re-make the First-tier Tribunal’s decision. The decision
the First-tier Tribunal should have made (which is to all intents and purposes to the
same effect) is as follows:
“The Appellant’s appeal is dismissed.
The Respondent’s decision of 17 July 2015 is confirmed.
The Appellant is not entitled to JSA at the main rate from 26 January 2012 to 16
December 2012 because he has not entered into a valid jobseeker’s agreement and nor
can he be treated as having entered into one. For the reasons given in this decision, if
the Appellant were to comply with the proposed agreement of 17 July 2015 he would
satisfy the JSA entitlement conditions of availability for work and actively seeking work
(i.e. the conditions mentioned in section 1(2)(a) and (c) of the 1995 Act). Furthermore, it
was reasonable to expect the Appellant to have to comply with the proposed
agreement.”
This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and
Enforcement Act 2007.
REASONS FOR DECISION
Introductory: the fundamental issue in this case
1. This fundamental issue in this appeal concerns the reasonableness (or otherwise) of the
terms of the claimant’s revised jobseeker’s agreement.
2. This appeal is a “second time around” case, as the claimant’s appeal has already been to
the Upper Tribunal once before under another guise. Upper Tribunal Judge Ward decided that
earlier appeal, and his decision has been reported as CH v Secretary of State for Work and
Pensions (JSA) [2015] UKUT 373 (AAC); [2016] AACR 28. I refer to that decision as and
where necessary below (and as CH v SSWP (JSA)). Given the intimate connection between
the two cases, this appeal will be allocated a neutral case number under the rubric of CH v
SSWP (JSA) (No.2).
.
Introductory: an outline of the background and the Upper Tribunal’s decision
3. In summary, the claimant applied for jobseeker’s allowance (JSA) back in 2012 but
refused to sign a jobseeker’s agreement because, he said, it failed to address his disabilities
(and for various other reasons). The Secretary of State’s decision-maker decided at the time
that the claimant was not entitled to either (i) ordinary JSA payments or (ii) JSA hardship
payments. The basis for those decisions was the claimant’s refusal to sign the jobseeker’s
agreement. On 24 September 2012 the Plymouth First-tier Tribunal (FTT) dismissed the
claimant’s appeal. The claimant then appealed to the Upper Tribunal. The proceedings were
protracted. For reasons that will become evident, Judge Ward allowed that appeal in CH v
SSWP (JSA) and remitted the case to the Secretary of State for a fresh determination on the
reasonableness (or otherwise) of the jobseeker’s agreement. Shortly afterwards, on 17 July
2015, the Secretary of State notified the claimant of the revised terms of the jobseeker’s
CH v SSWP (JSA) (No.2) [2018] UKUT 320 (AAC)
agreement. The claimant again declined to sign the agreement and lodged a further appeal
against that new determination. Following a mandatory reconsideration, on 23 March 2017 a
second FTT in Plymouth eventually considered that appeal ‘on the papers’. The second
appeal to the FTT was also dismissed by the District Tribunal Judge (DTJ) who dealt with the
case. Following my grant of limited permission to appeal, the claimant now appeals to the
Upper Tribunal against that second FTT decision.
4. For present purposes I can summarise my conclusions as follows. The second FTT’s
decision involves an error of law. This is because it failed to provide adequate reasons for its
decision. In the light of that omission and given the terms of the limited grant of permission to
appeal, I do not need to address any other criticisms that may be made of the second FTT’s
decision. I allow the claimant’s appeal to the Upper Tribunal and set aside the second FTT’s
decision. I consider it is fair and just to re-determine the underlying appeal myself. I decide
that in the terms as set out above at the head of this decision and at paragraph 46 below. The
result is that the claimant is not entitled to the ordinary rate of JSA for the period from 26
January 2012 to16 December 2012.
5. In CH v SSWP (JSA) Judge Ward observed that “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” (at paragraph 5). Judge Ward also remarked that the claimant’s lengthy written
submissions contain “at least some potentially apposite points but also passages that are
irrelevant or repetitious or which rely on unreasoned criticism” (at paragraph 15). In the
present proceedings, the claimant, in both his written and oral submissions, has in the same
way sought to raise a host of other matters about his treatment by the Department for Work
and Pensions (DWP) and in the tribunal process. I regret to say that for the most part those
other submissions are wholly misguided and/or irrelevant to the fundamental issue identified
in paragraph 1 above. Bearing in mind the need for proportionality, I endeavour to deal with
those other submissions in this decision in relatively short order.
The relevant legislation
6. A good starting point is the relevant legislation. The core conditions for entitlement to
JSA are contained in section 1 of the Jobseekers Act 1995 (“the 1995 Act”). They include the
three “labour market conditions”, namely that the claimant (1) is available for employment;
(2) has entered into a current valid jobseeker’s agreement; and (3) is actively seeking
employment (3) (see the 1995 Act, section 1(2)(a)-(c)). Unless treated as having met the
relevant condition in question, a claimant must satisfy each of those three conditions to
qualify for JSA. At the material time in 2012 (and as amended), section 9 of the 1995 Act
read as follows (subsection (6) is italicised as that was the crux of the present appeal):
9.— The jobseeker's agreement
(1) An agreement which is e ntered into by a claimant and an employment officer and which
complies with the prescribed requirements in force at the time when the agreeme nt is made is
referred to in this Act as “a jobseeker's agreement”.
(2) A jobseeker's agreement shall have effect only for the purposes of sectio n 1.
(3) A jobseeker's agreement shall be in writing and be signed by both parties.
(3A) The agreement may be in electronic form and signed b y means of an electronic signature
(within the meaning given in section 7(2) of the Electronic Communications Act 200 0).
(4) A copy of the agreement shall be given to the claimant.
(5) An employment o fficer shall not enter into a jobseeker's agreement with a claimant unless, in
the officer's opinion, the conditions mentioned in section 1(2)(a) and (c) would be satisfied with
respect to the claimant if he were to comply with, or be treated as complying with, the p roposed
agreement.
(6) The employment officer may, and if asked to do so by the claimant shall forthwith, refer a
proposed jobseeker's agreement to the Secretary of State for him to determine —
(a) whether, if the claimant concern ed were to comply with the proposed agreement, he would
satisfy—
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