Secretary of State for Work and Pensions v CN (JSA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2020] UKUT 26 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Jobseekers allowance,Tribunal procedure,practice,Jobseekers allowance - other,practice - tribunal jurisdiction,Wright,S |
| Date | 17 January 2020 |
| Published date | 03 March 2020 |
SSWP v CN (JSA)
[2020] UKUT 26 (AAC)
IN THE UPPER TRIBUNAL Appeal No: CJSA/1122/2016
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal allows the appeal of the Secretary of
State.
The decision of the First-tier Tribunal sitting at Birmingham
on 2 December 2015 under reference SC045/13/06176
involved an error on a material point of law and is set aside.
The Upper Tribunal gives the decision the First-tier Tribunal
ought to have given. The Upper Tribunal’s decision is to
dismiss the claimant’s appeal to the First-tier Tribunal from
the Secretary of State’s decision of 8 August 2013, with the
result that jobseeker’s allowance is not payable to the
claimant from 9 August 2013 to 22 August 2013.
This decision is made under section 12(1), 12 (2)(a) and
12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act
2007.
REASONS FOR DECISION
1. This appeal concerns a sanction decision made by the Secretary of State
on 8 August 2013 that jobseeker’s allowance was not payable to the
claimant (the respondent on this appeal) from the 9th to the 22nd of
August 2013 because she had failed, without good cause, to participate
in the Employment, Skills and Enterprise Scheme of the Work
Programme on 7 August 2012.
2. In giving the Secretary of State permission to appeal back in June 2016
I said the following:
“1. Consideration of this application for permission to appeal was
stayed (that is, held up) to await the Court of Appeal’s decision in what
SSWP v CN (JSA)
[2020] UKUT 26 (AAC)
I will call Reilly (No 2) and TJ and others. That appeal was decided by
the Court of Appeal on 29 April 2016 with the neutral citation number
[2016] EWCA Civ 413…….Even though there may still be a further
appeal, it appears desirable to deal with the issues in the present case
now and so I lift the stay on this case.
2. (The relevance of the Court of Appeal’s decision in Reilly (No
2) and TJ and others may, however, be limited as the sanction
decision of the Secretary of State appealed by [the claimant] was dated
8 August 2013 and so came after the date the Jobseekers (Back to
Work Schemes) Act 2013 came into effect on 29 March 2013.)
3. I give permission to appeal because I consider that the
Secretary of State’s grounds of appeal have a realistic prospect of
establishing that the First-tier Tribunal’s decision was erroneous in
law and should be set aside.
4. The sole basis upon which the First-tier Tribunal found in [the
claimant’s] favour was because the appeal bundle did not contain a
copy of the actual notice which was sent to [the claimant] referring her
to the Work Programme (such a notice is commonly referred to as a
“WP05”)
5. It is arguable, however, that this was not an issue raised by the
appeal and so did not fall to be decided on the appeal. The essence of
[the claimant’s] appeal was that she had never missed any
appointment that she had been allocated. It is arguable that [the
claimant] was not therefore raising any issue as to whether she had
been referred to the Work Programme in the first place. Indeed, her
reference to the work programme provider – Enable - in her appeal
and her assertion that she had not missed any appointments (with
them) arguably may be said to show an acceptance on [her] part that
she had been put on the Work Programme.
6. Section 12(8)(a) of the Social Security Act 1998 provides that in
a deciding an appeal the First-tier Tribunal “need not consider any
issue that is not raised by the appeal”. In other words, it need only
decide the substance of the issue or issues raised by t he appeal. It is
arguable that whether [the claimant] had been referred to the Work
Programme, or perhaps more accurately whether there was sufficient
evidence of this issue, was not an issue raised by the appeal and did
not need to be decided by the First-tier Tribunal. Section 12(8)(b) of
the Social Security Act 1998 does not, however, say that a First-tier
Tribunal should only decide the issues raised by the appeal. It gives a
discretion to the First-tier Tribunal to decide an issue not raised by the
appeal. But in so doing the tribunal needs to act fairly, both to the
appellant and the Secretary of State, so that the party affected by the
issue not raised by the appeal has an adequate opportunity to address
it.
7. Related to the provision in section 12(8)(b) of the Social
Security Act 1998, rule 24 of the Tribunal Procedure (First-tier
Tribunal) (Social Entitlement Chamber) Rules 2008 deals with the
Secretary of State’s response to an appeal, and by rule 24(4)(b)
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