Ferguson v. Secretary of State for Work and Pensions  UKSSCSC CJSA_2652_2001 (12 March 2003)
(Ferguson v. Secretary of State for Work and Pensions  EWCA Civ 536)
CA ((May, Arden and Keene LJJ)) CJSA/2652/01
Failure to attend Jobcentre and provide signed declaration – time at which entitlement is to cease – meaning of "evidence which shows that he continues to be entitled to a jobseeker's allowance"
The claimant was awarded jobseeker's allowance in March 1999 and was required to sign the standard declaration when he attended the Jobcentre once a fortnight. He duly did so on 18 May but on the next "signing day", 1 June, he did not attend because he thought that he had a reasonable prospect of a job away from home. He did not contact the Jobcentre to explain his failure. On 14 June he attended the Jobcentre and was told that his entitlement had ceased. He made a new claim but the adjudication officer decided that this claim could not be backdated for the period 19 May to 13 June. The claimant appealed against this decision but it was confirmed by the appeal tribunal. The claimant appealed to a Commissioner.
The Commissioner assumed that there must have been a decision ending the previous award and held that the appeal should be treated as being against that decision as well as the backdating decision. The claimant accepted that he had no grounds for backdating, so the sole issue became the date from which the termination decision should take effect. The representative of the Secretary of State contended that this should be 19 May because the words in Regulation 26(a) of the Jobseeker's Allowance Regulations 1996 "evidence which shows that he continues to be entitled to a jobseeker's allowance" should be construed as referring to the signed declaration.
The Commissioner considered that the Secretary of State's interpretation could not be correct because it would have the result that the date determined under paragraph (a) of Regulation 26 would always be earlier than those determined under paragraphs (b) or (c), so rendering those provisions of no effect. The Commissioner held that the words in Regulation 26(a) should be construed as referring to the claimant's response to any specific requirement to furnish certificates, documents or other evidence made under Regulation 24(5). However he commented that on that basis Regulation 26(a) was probably of no effect to terminate benefit because the regulations provided the Secretary of State with no remedy for a claimant's failure to comply with Regulation 24(5).
Therefore the termination date in the present case fell to be determined under Regulations 26(b) or (c), both of which had the effect that benefit should have ceased on 1 June. The Commissioner set aside the tribunal decision and substituted a decision that the claimant was not entitled to jobseeker's allowance from and including 1 June to 13 June inclusive. The Secretary of State appealed to the Court of Appeal.
Held, allowing the appeal, that:
- The words in Regulation 26(a) "evidence which shows that he continues to be entitled to jobseeker's allowance" can reasonably be interpreted as referring to the signed declaration required by Regulation 24(6). The word "evidence" is capable of including a declaration, because a declaration is intrinsically evidence of its contents. A declaration is capable of showing that the claimant continues to be entitled to a jobseeker's allowance because the Secretary of State is entitled to accept it on its face (paragraphs 44-45);
- It is not correct that, if the above interpretation is applied, the date determined under paragraph (a) of Regulation 26 will always be earlier than that determined under paragraphs (b) or (c). This is because, in a case where a claimant fails to provide a declaration on the day specified under Regulation 24(10), although the failure to attend and/or provide the declaration is not itself excused, the claimant can still provide a declaration belatedly which can be accepted as showing continuing entitlement to jobseeker's allowance up to and including that day. Therefore the above interpretation does not have the effect of rendering paragraphs (b) and (c) of Regulation 26 inoperative or ineffective and so there is no reason why it should not be applied (paragraphs 40-42);
- Paragraphs (b) and (c) of Regulation 26 can never both apply to the same fact situation, because a failure to provide a declaration cannot be subsumed within a failure to attend. Paragraph (c) will only apply where the claimant is allowed to provide declarations by post or where the claimant attends on the appropriate day but refuses to provide a declaration. Therefore in any particular fact situation there will only be two dates to consider under Regulation 26, which is why the draftsman used the word "earlier" rather than "earliest" (paragraphs 48-49);
- Where Regulation 26 provides that entitlement shall cease on a particular day, this means that there is no entitlement for that day, because the law takes no account of part of a day. Therefore applying Regulation 26(a) in the present case has the effect that the claimant is not to receive benefit for 19 May 1999 (paragraph 52);
- It is not correct that the Secretary of State has no remedy if the claimant fails to furnish certificates, documents or other evidence required under Regulation 24(5). The appropriate action for the Secretary of State to take is to suspend payment of benefit under Regulation 16 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (paragraph 43);
The Court made a declaration that the claimant was not entitled to jobseeker's allowance from 19 May to 13 June 1999 inclusive.
DECISION OF THE COURT OF APPEAL
Mr. D. Forsdick (instructed by the Office of the Solicitor, Department for Work & Pensions) appeared on behalf of the Appellant.
The Respondent Mr. M. Ferguson appeared in person
LORD JUSTICE MAY:
LADY JUSTICE ARDEN:
"The decision to end the appellant's entitlement to jobseeker's allowance from and including 18 May 1999 is set aside. The entitlement of the appellant to jobseeker's allowance ceased on 1 June 1999. The appellant is not entitled to jobseeker's allowance from and including 1 June 1999 to 13 June 1999 inclusive."
"An allowance, to be known as a jobseeker's allowance, shall be payable in accordance with the provisions of this Act."
"Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he–
(a) is available for employment;
"A jobseeker's allowance is payable in respect of a week."
"For the purposes of this Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment."
"Regulations may make provision for requiring a claimant–
(a) to attend at such place and at such time as the Secretary of State may specify; and
(b) to provide information and such evidence as may be prescribed as to his circumstances, his availability for employment and the extent to which he is actively seeking employment."
"Regulations under subsection (1) may, in particular–
(a) prescribe circumstances in which entitlement to a jobseeker's allowance is to cease in the case of a claimant who fails to comply with any regulations made under that subsection;
(c) provide for entitlement to cease at such time (after he last attended in compliance with requirements of the kind mentioned in subsection 1(a)) as may be determined in accordance with any such regulations;
"23. A claimant shall attend at such place and at such time as the Secretary of State may specify by a notice in writing given or sent to the claimant.
Provision of information and evidence
24.–(1) A claimant shall provide such information as to his circumstances, his availability for employment and the extent to which he is actively seeking employment as may be required by the Secretary of State in order to determine the entitlement of the claimant to a jobseeker's allowance, whether that allowance is payable to him and, if so, in what amount.
(2) A claimant shall furnish such other information in connection with the claim, or any question arising out of it, as may be required by the Secretary of State.
(4) A claimant shall furnish such certificates, documents and other evidence as may be required by the Secretary of State for the determination of the claim.
(5) A claimant shall furnish such certificates, documents and other evidence affecting his continuing entitlement to a jobseeker's allowance, whether that allowance is payable to him and, if so, in what amount as the Secretary of State may require.
(6) A claimant shall, if the Secretary of State requires him to do so, provide a signed declaration to the effect that–
(a) since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph he has either been available for employment or satisfied the circumstances to be treated as available for employment, save as he has otherwise notified the Secretary of State.
(b) since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph he has either been actively seeking employment to the extent necessary to give him his best prospects of securing employment or he has satisfied the circumstances to be treated as actively seeking employment, save as he has otherwise notified the Secretary of State, and
(c) since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph there has been no change to his circumstances which might affect his entitlement to a jobseeker's allowance or the amount of such an allowance, save as he has notified the Secretary of State.
(10) Where, pursuant to paragraph (6), a claimant is required to provide a signed declaration he shall provide it on the day on which he is required to attend in accordance with a notice under regulation 23 or on such other day as the Secretary of State may require.
Entitlement ceasing on a failure to comply
25.–(1) Subject to regulation 27, entitlement to a jobseeker's allowance shall cease in the following circumstances–
(a) if the claimant fails to attend on the day specified in a notice under regulation 23, other than a notice requiring attendance under an employment programme or a training scheme;
(i) the claimant attends on the day specified in a notice under regulation 23 but fails to attend at the time specified in that notice (other than a notice requiring attendance under an employment programme or a training scheme), and the Secretary of State has informed the claimant in writing that a failure to attend, on the next occasion on which he is required to attend, at the time specified in such a notice may result in his entitlement to a jobseeker's allowance ceasing, and
(ii) he fails to attend at the time specified in such a notice on the next occasion;
(c) if the claimant was required to provide a signed declaration as referred to in regulation 24(6) and he fails to provide it on the day on which he ought to do so in accordance with regulation 24(10).
Time at which entitlement is to cease
26. Entitlement to a jobseeker's allowance shall cease in accordance with regulation 25 on whichever is the earlier of–
(a) the day after the last day in respect of which the claimant has provided information or evidence which shows that he continues to be entitled to a jobseeker's allowance,
(b) if regulation 25(1)(a) or (b) applies, the day on which he was required to attend, and
(c) if regulation 25(1)(c) applies, the day on which he ought to have provided the signed declaration,
provided that it shall not cease earlier than the day after he last attended in compliance with a notice under regulation 23.
Where entitlement is not to cease
27.–(1) Entitlement to a jobseeker's allowance shall not cease if the claimant shows, before the end of the fifth working day after the day on which he failed to comply with a notice under regulation 23 or to provide a signed declaration in accordance with regulation 24, that he had good cause for the failure.
(2) In this regulation, 'working day' means any day on which the appropriate office is not closed.
Matters to be taken into account in determining whether a claimant has good cause for failing to comply with a notice under regulation 23
28.–(1) Subject to regulation 30, in determining, for the purposes of regulation 27, whether a claimant has good cause for failing to comply with a notice under regulation 23 the matters which are to be taken into account shall include the following–
(a) whether the claimant misunderstood the requirements on him due to any learning, language or literacy difficulties of the claimant or any misleading information given to the claimant by an employment officer;
(b) whether the claimant was attending a medical or dental appointment, or accompanying a person for whom the claimant has caring responsibilities to such an appointment, and whether it would have been unreasonable, in the circumstances, to rearrange the appointment;
(c) any difficulty with the claimant's normal mode of transport and whether there was any reasonable available alternative;
(d) the established customs and practices of the religion, if any, to which the claimant belongs;
(e) whether the claimant was attending an interview for employment.
(2) In this regulation, 'employment' means employed earner's employment except in relation to a claimant to whom regulation 20(2) applies and for the duration only of any permitted period determined in his case in accordance with regulation 16, in which case, for the duration of that period, it means employed earner's employment or self-employed earner's employment."
"Read as a whole, and with those points in mind, there is a clear intended pattern to regulation 26, though that pattern is, in my view, faulty. Paragraph (a) is intended to deal with a failure to meet any specific requirement under regulation 24(5) (though it may not achieve that aim). It does not deal with regulation 24(6). Paragraph (b) deals with a failure to turn up at the right day and time under regulation 23. Paragraph (c) deals with a failure to sign a declaration under regulation 24(6), including a failure to sign a declaration on a personal attendance as provided under regulation 24(10). The proviso to regulation 26 prevents the regulation being applied to override a previous compliance with regulation 23."
"16.–(1) Subject to paragraph (2), the Secretary of State [or the Board] may suspend payment of a relevant benefit, in whole or in part, in the circumstances prescribed in paragraph (3).
(2) The Secretary of State shall suspend payment of a jobseeker's allowance in the circumstances prescribed in paragraph 3(a)(i) or (ii) where the issue or one of the issues is whether a person, who has claimed a jobseeker's allowance, is or was available for employment or whether he is or was actively seeking employment.
(3) The prescribed circumstances are that–
(a) it appears to the Secretary of State [or the Board] that–
(i) an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled;
(ii) an issue arises whether a decision as to an award of a relevant benefit should be revised under section 9 or superseded under section 10;
17.–(1) This regulation applies where the Secretary of State requires information or evidence for a determination whether a decision awarding a relevant benefit should be–
(a)revised under section 9; or
(b)superseded under section 10.
(2) For the purposes of paragraph (1), the following persons must satisfy the requirements of paragraph (4)–
(a) a person in respect of whom payment of a benefit has been suspended in the circumstances prescribed in regulation 16(3)(a);
(4) A person to whom paragraph (2) refers must either–
(a) supply the information or evidence within–
(i) a period of one month beginning with the date on which the notification under paragraph (3) was sent to him; or
(ii) such longer period as he satisfies the Secretary of State is necessary in order to enable him to comply with the requirement; or
(b) satisfy the Secretary of State within the period of time specified in subparagraph (a)(i) that either–
(i) the information or evidence required of him does not exist; or
(ii) that it is not possible for him to obtain it.
18.–(1) Subject to paragraphs (2), (3) and (4), the Secretary of State shall decide that where a person–
(a) whose benefit has been suspended in accordance with regulation 16 and who subsequently fails to comply with an information requirement made in pursuance of regulation 17; or
(b) whose benefit has been suspended in accordance with regulation 17(5),
that person shall cease to be entitled to that benefit from the date on which payment was suspended except where entitlement to benefit ceases on an earlier date other than under this regulation.
"3. JSA claimants are normally required to attend the Jobcentre each fortnight. They lose entitlement if they fail to do so, unless they can show good cause for the failure within the next five working days. In the second quarter of 2002, about 180,000 JSA claims were terminated in these circumstances.
4. Most of those failing to attend make no contact with the Jobcentre during the five days. Consequently in terminating their entitlement, the Jobcentre has no information as to whether the JSA conditions were satisfied during the preceding fortnight. Entitlement is therefore terminated indefinitely with effect from the day after their last correct attendance.
5. Of those whose entitlement is terminated on a failure to attend, a minority make contact during the next five days but are found not to have good cause for their failure. They can, however, usually show that they satisfied the JSA conditions during the previous fortnight. Their entitlement is therefore terminated with effect from the date of failure only. They are also in a position to make an immediate new claim, so that their period of disentitlement lasts only from the date of failure to the date of renewal. About 30,000 people fell into this category in the second quarter of 2002."
"Paying JSA to them for that period therefore risks making an overpayment."
"7. The criteria for allowing JSA claimants to submit declarations by post instead of attending the Jobcentre every two weeks are an administrative matter within the Secretary of State's discretion. The criteria were changed in October 1996 to coincide with the introduction of Jobseeker's Allowance. Prior to that date unemployed claimants were `postal' if they lived more than 6 miles from the nearest Jobcentre. The current criteria are that JSA claimants can be postal if their total door-to-door journey from home to the nearest Jobcentre, using normal local public transport as appropriate, would:
-take more than an hour in either direction; or
-cause the claimant to be away from home for more than four hours.
8. Claimants can also be granted 'postal' status if they have a medical condition which affects their ability to attend the Jobcentre."
"The proviso to regulation 26 is unambiguous. [Mr Ferguson] should have been paid a JSA to 19 May 1999 not 18 May 1999 in any event. The decision of the Secretary of State stopped the JSA a day too early even if everything else about that decision was right. I emphasise this because, following CJSA/2327/2001, tribunals should consider it. It is a small but important safeguard. It does not stop a JSA until the day after an attendance, even if a claimant refused to sign a declaration. That would allow at least some claimants who had problems on the day they attended to turn up the following day and renew a JSA claim without a break in payment. And it makes it all the more important that there is a decision stopping JSA, as decided in CJSA/2327/2001, so that the correct date can be checked."
LORD JUSTICE KEENE
LORD JUSTICE MAY:
Order: appeal allowed; declaration made as set out above.