England and Wales Court of Appeal (Civil Division) Decisions

Case No: A/1999/1204

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 15 December 2000

LORD JUSTICE SIMON BROWN:

1. In October 1996 unemployment benefit was replaced by jobseeker's allowance, and allowance which by s.1(3) of the Jobseekers Act 1995 (the Act) is payable in respect of a week.

2. On 26 February 1997 the respondent (Mr David) entered into a jobseeker's agreement in which he placed no restrictions on the days or hours during which he was available for work.

3. In the early hours of 4 August 1997 Mr David was taken into police custody and detained for 42 hours. So far as is known he was never charged.

4. The Adjudication Officer determined that he could not on that account be considered available for work during the week 31 July to 6 August 1997 and so was not entitled to jobseeker's allowance for that week.

5. Mr David appealed to the Social Security Appeal Tribunal which, by decision dated 6 November 1997, held partially in his favour that he was only disentitled to jobseeker's allowance for two days and so was entitled to five-sevenths of his weekly benefit.

6. The adjudication officer appealed to the Social Security Commissioner, pointing out that there was no power to award jobseeker's allowance for part of a week only and contending, therefore, that Mr David was disentitled to benefit for the whole week. The appeal was dealt with by written representations. On 19 March 1999 the Comissioner decided that Mr David was not to be treated as unavailable for work simply because he was in police custody for two days and accordingly held him entitled to the whole week's allowance.

7. Before us now is the Secretary of State's appeal against that determination. To understand the basis both of the Commissioner's decision and of the appeal it is necessary first to indicate something of the jobseeker's allowance scheme.

8. By s.1(2) of the Act the allowance is payable if the claimant amongst other things:

"(a) is available for employment;

(b) has entered into a jobseeker's agreement which remains in force;

(c) is actively seeking employment; ..."

9. S.6(1) of the Act provides that " ... a person is available for employment if he is willing and able to take up immediately any employed earner's employment", but that is subject to regulations made pursuant to s.6(2) which enable a person to restrict his availability for employment in any week in certain ways and circumstances, and regulations made pursuant to s.6(4) which prescribe circumstances in which a person is or is not to be treated as available for employment.

10. The Jobseeker's Allowance Regulations 1996 (the Regulations) provide by regulation 6(1) that in order to be regarded as available for employment, a person must be willing and able to take up employment for at least 40 hours per week, unless he has restricted his availability in accordance with, so far as presently material, regulation 13(3) or (4).

11. Regulation 13(3) provides:

"A person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition."

12. This, as will appear, is the regulation by which the Commissioner came to decide this case. Neither side had mentioned it.

13. Regulation 13(4) allows a person with caring responsibilities to restrict his availability to less than forty hours in any week in certain circumstances.

14. Regulation 7(2) provides:

"A person may restrict the total number of hours for which he is available for employment in any week to forty hours or more providing

(a) the times at which he is available to take up employment (his `pattern of availability') are such as to afford him reasonable prospects of securing employment;

(b) his pattern of availability is recorded in his jobseeker's agreement and any variations in that pattern are recorded in a varied agreement and

(c) his prospects of securing employment are not reduced considerably by the restriction imposed by his pattern of availability."

15. Regulation 14 specifies in considerable detail the circumstances in which a person is to be treated as available. They include (and I set these out to illustrate the particularity of this legislation):

"(c) if he is temporarily absent from Great Britain because he is taking a member of his family who is a child or young person abroad for treatment, for a maximum of 8 weeks;

(d) if he is engaged in the manning or launching of a lifeboat or in the performance of duty as a part-time member of a fire brigade or engaged during an emergency in duties for the benefit of others;

(e) if he is a member of a couple and is looking after a member of his family who is a child while the other member is temporarily absent from the United Kingdom, for a maximum of 8 weeks;

(f) if he is following an Open University course and is attending, as a requirement of that course, a residential course, for a maximum of one week per course;

(g) if he is temporarily looking after a child full-time because the person who normally looks after the child is ill or temporarily absent from home or the person is looking after a member of the family who is ill, for a maximum of 8 weeks"

16. A person is also to be treated as available for employment under regulation 14 (so long as he is not disentitled under regulation 15):

"(a) if there is a death or serious illness of a close relative or close friend of his;

(b) if there is a domestic emergency affecting him or a close relative or close friend of his;

(c) if there is a funeral of a close relative or close friend of his;

(d) if he has caring responsibilities and the person being cared for has died; for the time required to deal with the emergency or other circumstance and for a maximum of one week on the occurrence of any of the circumstances set out in sub-paragraphs (a) to (d), or a combination of those circumstances, and on no more than 4 such periods in any period of 12 months."

17. Regulation 15 provides for those circumstances in which a person is not to be regarded as available for employment. These, I note, include certain full time students and prisoners on temporary release.

18. Against that legislative background, let me return to the circumstances of the present case and set out the determinative part of the Commissioner's decision by which he found for the claimant:

"Regulation 13(3) provides that a person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition. Although the Adjudication Officer assumes that such restrictions must be specified in the jobseeker's agreement, it seems to me that in the very particular circumstances of this case, that is not necessary. The claimant's physical condition was such that he was in police custody, presumably was not free either in practical terms or in legal terms to leave, in the circumstances any restriction on his availability was not only reasonable but inevitable, and he is not to be treated as unavailable for work simply because he was in police custody for those two days. Of course, the claimant has not `restricted' his availability in any way at all, his availability has been restricted by others. However, the wording of the legislation does not seem to distinguish between these two situations."

19. In short, the Commissioner took the view, first that the expression in regulation 13(3) "physical or mental condition" is apt to refer not only to some disability on the claimant's part but also to any extraneous physical constraints that may be placed upon him; and second that it is unnecessary under this regulation for the claimant himself to have invoked his "condition" so as to justify retricting his availability in advance of the week in question; rather the claimant's non-availability can retrospectively be overlooked under this provision.

20. I have to say that to my mind both limbs of this construction are impossible. The reference to the claimant's "physical or mental condition" seems to me clearly confined to some personal disability. And it seems to me no less clear that the provision applies prospectively only and specifically with regard to the completion of the jobseeker's agreement. That this is so is surely demonstrated also by regulation 55 which deals with short periods of sickness and provides:

"55(1) ... A person who -

(a) has been awarded a jobseeker's allowance ... and

(b) proves to the satisfaction of the Adjudication Officer that he is unable to work on account of some specific disease or disablement; and

(c) but for his disease or disablement would satisfy the requirements for entitlement to a jobseeker's allowance other than those specified in s.1(2)(a), (c) and (f) (available for and actively seeking employment, and capable of work), shall be treated for a period of not more than two weeks as capable of work ... "

21. On the Commissioner's approach there would be no need for regulation 55: such a person could instead invoke regulation 13(3) and, notwithstanding his jobseeker's agreement, assert that his availability was restricted by his temporary physical incapacity.

22. It follows that in my judgment the Commissioner was wrong in his decision and that, so far from resolving the appeal in favour of the claimant (who had not appealed), he should have decided it in favour of the adjudication officer (who had).

23. I cannot, however, simply leave the matter there. In the first place it is, I think, desirable to sound a note of caution to Commissioners: when dealing with appeals on written representations, they should not decide the case by reference to points of law raised solely by themselves without first giving the parties an opportunity to comment. Of course Commissioners are right to raise points of their own initiative, but equally obviously they should alert the parties to them. Ordinarily, I am told, they are assiduous in doing so but here, regrettably, that course was not taken.

24. Secondly, however, I think it right to touch on certain troubling features of the jobseeker's allowance scheme which this appeal has brought to light.

25. The first of these relates to the jobseeker's agreement itself. S.6 of the Act, as noted, requires the claimant to be willing and able to take up employment "immediately". That "immediately" means within a very short space of time indeed is clear not only from the word itself but also from regulation 5 which provides for exceptions to this requirement in the case of those with caring responsibilities or engaged in voluntary work (who need only be willing and able to take up employment on 48 hours notice) and certain others engaged in providing a service (who get 24 hours notice). No doubt the requirement for immediate availability allows the claimant time to wash, dress and have his breakfast, but strictly it would seem inconsistent with, say, a claimant's stay overnight with a friend or relative, or attendance at a weekend cricket match, or even an evening at the cinema (unless perhaps he had left a contact number and had not travelled far).

26. In these circumstances, claimants ought clearly to be wary of entering into an agreement which offers unrestricted availability throughout the entire week, day and night, weekdays and weekends.

27. The second concern arises even more directly from the circumstances of the present appeal. It is not altogether easy to see why a claimant should lose his weekly jobseeker's allowance merely through being detained by the police. During such detention he must surely be presumed innocent; indeed Mr David, it appears, was never even charged. The case might be one of mistaken identity. The detention here, of course, was for 42 hours. But say it had been for only 12 hours or 6 hours. It might have been during the day; it might have been during the night. Or the claimant might have been kidnapped and detained by a criminal gang. Or stuck in a train for 8 hours. These things happen. Yet under the scheme as it stands the allowance for the week would be forfeit. Miss Lieven for the Secretary of State accepts, indeed asserts, as much. There is, in short, a lacuna in the legislation with regard to unforeseen circumstances. No doubt adjudication officers and, on appeal, tribunals (now the Unified Appeal Tribunal) are generally sensible and realistic about such cases. But this is a field in which claimants are periodically required to make declarations of availability (attended by criminal sanctions) and where strictly no element of discretion is conferred upon those administering the scheme.

28. These matters seem to me sufficiently troubling to suggest that the Secretary of State ought properly to consider amending the scheme to grant some measure of discretion to adjudication officers to deal with cases like this where a claimant is unavailable for work through unforeseen and excusable circumstances. In the meantime one may hope perhaps for a solution by way of ex gratia payments. No doubt cases like this are few and far between but to my mind they ought not simply to be swept under the carpet.

29. For the reasons already given I would allow this appeal. I would express the hope, however, that the respondent will not suffer financially as a result.

LORD JUSTICE THORPE:

30. I agree with the result and with My Lord's further observations.

LORD JUSTICE JONATHAN PARKER:

31. I also agree.

Order: Appeal Allowed.