Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
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Between |
Jeremy Patrick Michael Gosselin |
Representor |
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And |
Minister for Social Security |
First Respondent |
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And |
Her Majesty's Attorney General |
Second Respondent |
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IN THE MATTER OF THE REPRESENTATION OF JEREMY PATRICK MICHAEL GOSSELIN
Mr J. P. M. Gosselin appeared in person.
Advocate G. G. P. White for the First and Second Respondents.
CONTENTS OF THE JUDGMENT
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Paras |
1. |
Introduction |
1-2 |
2. |
The statutory framework |
3-18 |
3. |
Chronology of events |
19-60 |
4. |
Decision |
61-65 |
5. |
Other observations |
66-67 |
judgment
the master
1. This judgment represents my detailed written reasons in respect of whether the representation issued by the representor should be determined by way of an application for leave to appeal or whether the representation is an application for judicial review and therefore directions should be given to allow the respondents to contend that the representation should be struck out as being brought significantly out of time. Although the representation is lengthy, the representation ultimately sought the quashing of various decisions taken by the Social Security Department which had the effect of ruling that the representor was not entitled to income support payments from the Social Security Department. I set out later in this judgment a chronology of the decisions taken by the Social Security Department, the effect of these decisions, and what steps the representor took to appeal these decisions to the Social Security Tribunal. It is to challenge these decisions of the Social Security Tribunal that the representor presented his representation to the Royal Court.
2. The issue I had to determine was the appropriate procedural route in respect of the matters raised by the representation following the Royal Court referring the matter to me for directions.
3. I start by setting out the relevant statutory framework applicable to claims for income support. The legal basis for income support is found in the Income Support (Jersey) Law 2007 ("2007 Law"). Articles 2 and 3 provide as follows:-
"2 Eligibility for income support
(1) A person is eligible for income support if the person -
(a) is an adult;
(b) has been ordinarily resident in Jersey for such period as may be prescribed;
(c) is a member of a household of which all the adult members are engaged in full time remunerative work or exempted under Article 3; and
(d) is a member of a household whose calculated income entitles the household to receive income support under Article 6.
(2) Orders may prescribe particular circumstances in which a person is to be treated or not treated for the purposes of this Article as -
(a) ordinarily resident in Jersey; or
(b) a member of the same household as another person.
3 Persons eligible despite not being engaged in full time remunerative work
(1) The following persons are exempted from the requirement to be engaged in full time remunerative work under Article 2(1)(c) -
(a) persons who have attained their pensionable age, determined in accordance with Article 1A of and Schedule 1AA to the Social Security (Jersey) Law 1974[3];
(b) persons with the main responsibility for the physical care of any child under the age of 5 years who is a member of the same household;
(c) persons with the main responsibility for the physical care of any child aged 5 years or over who is a member of the same household;
(d) persons incapable of full time work due to any physical, sensory or mental impairment;
(e) persons undergoing education or training on any course approved by the Minister for the purposes of this Article;
(f) persons with the main responsibility for the physical care of any person with such degree of physical, sensory or mental impairment as would make the carer eligible to claim a special component under Article 5(3)(d);
(g) persons available for, and actively seeking, full time remunerative work;
(h) persons remanded in custody or detained by virtue of a sentence of imprisonment, youth detention or similar punishment (whether in Jersey or elsewhere."
4. The issue in the present matter is a challenge to the Social Security Department determining that the representor did not meet their requirements that he was available for and actively seeking full-time remunerative work.
5. Article 4 of the 2007 Law provides that claims for income support are to be made to the Minister for Social Security ("the Minister"). The manner in which such claims have to be made can be prescribed by Order (see Article 4(3)).
6. Article 5 of the 2007 Law sets out that income support is a weekly allowance made up of a basic and special payment.
7. Article 5(4) empowers the States to make regulations setting out the criteria to be used when determining to which components of income support a household is entitled.
8. Article 9 of the 2007 Law provides that Orders may be made by the Minister for the determination of any claim for income support. Such orders can also provide for appeals to the Social Security Tribunal ("the Tribunal") established under schedule 4 of the Social Security (Jersey) Law 1974 and for appeals from the Tribunal on questions of law to be made or referred to the Royal Court. In fact regulations pursuant to the 2007 Law were first approved by the States in 2007 ("the 2007 Regulations"). These 2007 Regulations have been amended on a number of occasions, but it is not necessary to set out these amendments for the purposes of this decision. However, on 15th October, 2013, Regulation 133/2013 was passed by the States which introduced Articles 4, 5, 5A, 5B, 5C, 5E and 5F to the 2007 Regulations which are material to the representation and which are as follows:-
"4 Person treated as available for and actively seeking work[14]
(1) For the purposes of Article 3 of the Law, a person is to be treated as available for, and actively seeking, remunerative work if he or she -
(a) is -
(i) in Jersey, or
(ii) temporarily absent from Jersey and has a reasonable excuse for the absence;
(b) is willing and able to take up, as soon as reasonably practicable, any remunerative work that is suitable work;
(c) is taking all reasonable steps to obtain remunerative work that is suitable work;
(d) does not unreasonably turn down any offer of remunerative work that is suitable work; and
(e) attends every interview arranged by the Minister, unless the person has a reasonable excuse for not attending.
(2) For the purposes of paragraph (1)(c), the steps include -
(a) attending any training that may assist the person in obtaining remunerative work that is suitable work, unless the person has a reasonable excuse for not so doing and, when attending the training, participating in it to the best of the person's ability; and
(b) attending any work experience placement that may assist the person in obtaining remunerative work that is suitable work, unless the person has a reasonable excuse for not so doing and, when attending the work experience placement, undertaking it to the best of the person's ability.
(3) For the purposes of Article 3(1)(g) of the Law, the remunerative work referred to in paragraph (1) must be full time.
(4) For the purposes of Article 3(2)(b) of the Law, the remunerative work referred to in paragraph (1) must be for such number of hours as a determining officer considers appropriate in the person's particular circumstances.
5 Consequence of ceasing remunerative work without good cause[15]
(1) This Regulation applies to a person who ceases remunerative work without good cause.
(2) During the sanction period, the household of which he or she is a member is not entitled to a basic component under Article 5(2)(a) or (b) of the Law in respect of the person.
(3) Subject to Regulation 5C, the sanction period is 91 days.
(4) The sanction period commences -
(a) in a case where the household was, at the time the person ceased work without good cause, in receipt of income support - on the day the person ceased work;
(b) subject to paragraph (5), in any other case - on the first day that income support is paid to the household after the person ceased work without good cause or would have been paid had a basic component been payable to the household in respect of the person.
(5) In a case where -
(a) the household was not, at the time the person ceased work without good cause, in receipt of income support; and
(b) the person proves, to the satisfaction of the officer determining his or her claim for income support, that he or she has, before the day described in paragraph (4)(b), complied with the requirements of Regulation 4,
the sanction period commences with the day the person commenced such compliance.
(6) For the purposes of paragraph (4)(a), the day a person ceases work is the day following the last day on which that person is in that work.
5A Warning[16]
(1) A person required to seek work may be warned if -
(a) he or she does not comply with the requirements of Regulation 4; and
(b) there is not a warning currently in force in respect of him or her.
(2) Subject to paragraph (3) and Regulation 5C, a warning remains in force for the period of 365 days beginning with the day the person is given Notice of it.
(3) If, whilst a warning is in force in respect of a person, he or she commits a first, second, third or subsequent breach of the warning, the warning shall remain in force until the expiry of the period of 365 days following the date he or she was given Notice of the breach or, if he or she has committed more than one breach, the date he or she was given Notice of the most recent breach.
5B Breach of warning[17]
(1) A person in relation to whom a warning is in force is in breach of the warning if he or she -
(a) is a person required to seek work; and
(b) does not comply with the requirements of Regulation 4.
(2) A person who is in breach of a warning for a first time shall be treated as being in breach for 14 days.
(3) A person who is in breach of a warning for a second time shall be treated as being in breach for 28 days.
(4) A person who is in breach of a warning for a third or subsequent time shall be treated as being in breach for 42 days.
(5) A period of time in paragraph (2), (3) or (4) -
(a) begins with the day the person is given Notice of the breach; and
(b) is subject to Regulation 5C.
(6) A person cannot be given Notice of a breach less than 7 days after he or she has been given Notice of a warning or of a previous breach whilst the warning is in force.
(7) Paragraph (6) does not prevent any act or omission of the person during the 7 days referred to in that paragraph being taken into account in determining whether the person has complied with the requirements of Regulation 4.
5C Extension or termination of periods under Regulations 5, 5A and 5B[18]
(1) A sanction period applicable in a person's case under Regulation 5 shall be extended by 7 days if the person is warned.
(2) A sanction period applicable in a person's case under Regulation 5 shall be extended by the number of days for which the person is in breach of a warning, as described in Regulation 5B.
(3) Any period applicable in a person's case under Regulation 5, 5A or 5B shall be extended, subject to paragraph (4)(b), by the number of days for which the person is remanded in custody or detained as described in Article 3(1)(h) of the Law.
(4) Any period applicable in a person's case under Regulation 5, 5A or 5B shall be terminated upon -
(a) the person being exempt from the requirement to be in full time remunerative work by virtue of Article 3(1)(a) of the Law; or
(b) the person having been remanded in custody or detained as described in Article 3(1)(h) of the Law for a continuous period of 365 days.
..................................................................................
5E Consequence of third or subsequent breach[20]
(1) This Regulation applies where a person is in breach of a warning for a third or subsequent time.
(2) During the breach period, the person in breach shall not be eligible for any payment under Article 8(1) of the Law.
(3) Any claim for income support by the original household of the person in breach shall be taken to be withdrawn upon the commencement of the breach period.
(4) During the breach period, whilst the person in breach is a member of his or her original household -
(a) no income support shall be paid to the household;
(b) no member of the household shall be eligible for any payment under Article 8(1) of the Law; and
(c) the household cannot make a fresh claim for income support.
(5) The fact that, under paragraph (4), no income support is paid to the original household does not affect -
(a) whether any member of the household is a person required to seek work and the consequences of the person not complying with the requirements of Regulation 4; or
(b) any determination that a member of the household has ceased remunerative work without good cause and the consequences of such a determination under Regulation 5.
(6) If, during the breach period, the original household makes a fresh claim for income support after the person in breach has ceased to be a member of it, but the person in breach subsequently rejoins the household, the fresh claim for income support shall be taken to be withdrawn upon the person in breach becoming a member of the original household again.
(7) Whilst the person in breach is a member of another household, that other household is not entitled to a basic component under Article 5(2)(a) or (b) of the Law in respect of the person in breach.
(8) In this Regulation, "original household" means the household of which the person in breach was a member at the time he or she received Notice of the breach.
(9) For the purposes of this Regulation the person in breach is a member of another household if, after he or she receives Notice of the breach, another person who was not a member of the original household becomes a member of the same household as the person in breach, by virtue of Article 5(1) of the Income Support (General Provisions) (Jersey) Order 2008[21], in the circumstances described in sub-paragraph (a) or (aa) of that provision.
5F Consequences and periods of successive breaches may run concurrently [22]
A breach of a warning by a person for a second or subsequent time does not affect the operation of Regulations 5B to 5E in relation to the previous breach or breaches of the warning by the person."
9. The Income Support (General Provisions) (Jersey) Order 2008, was approved by the Minister on 25th January, 2008, ("the 2008 Order"). Again this order has been amended on numerous occasions. In relation to the representation, the relevant provisions are those in force as at 1st January, 2015, save in respect of one subsequent amendment which I set out later in this judgment.
10. Paragraph 17 of the 2008 Order as at 1st January, 2008, provided that any appeal to the Social Security Tribunal should be in accordance with the procedure for appeals to the Tribunal set out in Part 2 of the Social Security (Determination of Claims and Questions) (Jersey) Order 1974 ("the 1974 Order").
11. Paragraph 18 of the 2007 Order allows for an appeal to the Royal Court on a question of law against a decision of the Tribunal.
12. Paragraph 9 of the 1974 Order provided that any appeal had to be made to the Tribunal within 14 days of receiving notification of any decision. If an appeal was made outside the 14 day period but within 28 days the appeal could still be made with the consent of the chairman of the Tribunal.
13. Paragraph 14(1) of the 1974 Order confirmed that any person aggrieved by a decision of the Tribunal could appeal to the Royal Court on a point of law. This appears to duplicate paragraph 18 of the 2008 Order. Paragraph 14(2) of the 1974 Order also gave the Tribunal or a determining officer power to refer any point of law to the Royal Court. Until March 2015, neither paragraph 14 of the 1974 Order and/or paragraph 18 of the 2008 Order contained any time limit by which a person aggrieved has to appeal to the Royal Court on a point of law.
14. On 5th March, 2015, the Minister for Social Security approved the Social Security Health Insurance and Income Support (Miscellaneous Provisions) (Jersey) Order 2015 ("the 2015 Order"). Paragraph 14 of the 1974 Order was replaced with the following:-
"14 Appeals and references to Royal Court
(1) A person aggrieved by a decision of the Tribunal may, on a point of law only, appeal to the Royal Court.
(2) An appeal under paragraph (1) may be made -
(a) in the first instance, only with leave of the Tribunal; or
(b) in the second instance, only with leave of the Royal Court where the Tribunal has in the first instance refused leave to appeal.
(3) The Tribunal shall, if it is unable to reach a decision as to whether or not to grant leave to appeal, refer the application for leave to appeal, to the Royal Court.
(4) Subject to paragraph (5), an application for leave to appeal under paragraph (2)(a) must be made before the end of the period of 4 weeks beginning with the date of the Tribunal's decision or order.
(5) The Tribunal may vary the period specified in paragraph (4) if, in the circumstances of the case, the Tribunal is satisfied it would be fair and just to do so.
(6) An application for leave to appeal under paragraph (2)(b) shall be made within such period as may be specified by Rules of Court (within the meaning of Article 13 of the Royal Court (Jersey) Law 1948[10]).
(7) An application for leave to appeal under paragraph (2) may include an application to stay a decision or order of the Tribunal pending the appeal.
(8) No appeal shall lie from a decision of the Tribunal refusing leave for the institution or continuance of, or for the making of an application in, proceedings by a person who is the subject of an order under Article 1 of the Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001[11].
(9) The Tribunal or a determining officer may refer any point of law to the Royal Court for the Royal Court to give a ruling on the point."
(3) In Article 17(1)(b) after the words "long term incapacity allowance" there shall be inserted the words "(other than a decision relating to the determination of any question for which provision is made by Articles 34A to 34D of the Law)".
(4) In Article 19 -
(a) the existing text shall be numbered paragraph (1);
(b) after paragraph (1) (as numbered by sub-paragraph (a)) there shall be added the following paragraph -
"(2) In this Article 'Tribunal' includes the Social Security Medical Appeals Tribunal."
15. Article 18 of the 2008 Order was replaced with the following:-
"18 Appeals to Royal Court
(1) A person aggrieved by a decision of the Medical Appeal Tribunal or the Social Security Tribunal under this Part may, on a point of law only, appeal to the Royal Court.
(2) An appeal under paragraph (1) may be made -
(a) in the first instance, only with leave of the Tribunal; or
(b) in the second instance, only with leave of the Royal Court where the Tribunal has in the first instance refused leave to appeal.
(3) The Tribunal shall, if it is unable to reach a decision as to whether or not to grant leave to appeal, refer the application for leave to appeal, to the Royal Court.
(4) Subject to paragraph (5), an application for leave to appeal under paragraph (2)(a) must be made before the end of the period of 4 weeks beginning with the date of the Tribunal's decision or order.
(5) The Tribunal may vary the period specified in paragraph (4) if, in the circumstances of the case, the Tribunal is satisfied it would be fair and just to do so.
(6) An application for leave to appeal under paragraph (2)(b) shall be made within such period as may be specified by Rules of Court (within the meaning of Article 13 of the Royal Court (Jersey) Law 1948[16]).
(7) An application for leave to appeal under paragraph (2) may include an application to stay a decision or order of the Tribunal pending the appeal.
(8) No appeal shall lie from a decision of the Tribunal refusing leave for the institution or continuance of, or for the making of an application in, proceedings by a person who is the subject of an order under Article 1 of the Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001.".""
16. In both provisions, an appeal to the Royal Court can now only be made with leave of the Tribunal or, if the Tribunal refuses leave, with leave of the Royal Court. Any application for leave to appeal to the Royal Court firstly has to be made to the Tribunal within 4 weeks of the date of the Tribunal's decision. Any application for leave to appeal to the Royal Court, the Tribunal having refused leave, has to be made within such a period as might be specified by Rules of the Royal Court. However, no such Rules have been approved. There is therefore at present no time limit by which an application for leave to the Royal Court has to be made, as long as an application was made in time to the Tribunal for leave to appeal to the Royal Court even if that application for leave to appeal was refused by the Tribunal.
17. Part of the grounds relied upon by the representor in his representation concerned breaches of his human rights. I therefore also refer to Article 5 of the Human Rights Law (Jersey) Law 2000 which provides as follows:-
"5 Declaration of incompatibility
(1) If in any proceedings in which a court determines whether a provision of principal legislation is compatible with a Convention right, the court is satisfied that the provision is not so compatible, it may make a declaration of incompatibility.
(2) If in any proceedings in which a court determines whether a provision of subordinate legislation made in the exercise of a power conferred by principal legislation, is compatible with a Convention right, the court is satisfied -
(a) that the provision is not so compatible; and
(b) that (disregarding any possibility of revocation) the principal legislation concerned prevents removal of the incompatibility,
it may make a declaration of incompatibility.
(3) In this Article "court" means -
(a) the Royal Court (Superior or Inferior Number) sitting otherwise than as a court of trial in criminal proceedings;
(b) the Court of Appeal; or
(c) the Judicial Committee of the Privy Council.
(4) A declaration of incompatibility -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made."
18. Article 8(1) of the Human Rights (Jersey) Law 2000 provides as follows:-
"8 Proceedings
(1) A person who claims that -
(i) a public authority has acted, or proposes to act, in a way which is made unlawful by Article 7(1); or
(ii) the States Assembly has acted in a way which is made unlawful by paragraph (4) of that Article,
may-
(a) bring proceedings against the authority or, in the case of the Assembly, the States, under this Law in the Royal Court; or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if the person is (or, in the case of proposed action by a public authority, would be) a victim of the unlawful act."
19. I now set out a chronology of the events which have led to the representation.
20. On 29th January, 2014, the representor was notified by a letter from the Social Security Department that he had failed to attend an appointment with Ms Susan Wright of the Back to Work Team, the determining officer of the department on 28th January, 2014.
21. He therefore received a formal warning pursuant to Article 5A of the 2007 Regulations ("the Warning"). He was informed the Warning would remain in force for 365 days and any breach would result in the penalties set out in Regulation 5B(2) The letter stated:-
"Any breach of this order resulting in following penalties being imposed:-
Breach 1 - your adult component will be removed for 14 days
Breach 2 - your adult component will be removed for 28 days
Breach 3 - (and any Subsequent Breach) - all Income Support payments to your household will cease to be made.
The 365 days of the formal warning will also be extended from the date of each Breach."
Mr Gosselin contends this letter did not necessarily explain the effect of a breach 3.
22. To avoid a penalty being imposed the representor was also required to attend before Miss Wright on Friday, 7th February, 2014, at 12pm.
23. He was also notified of his rights to have the decision to issue the Warning reconsidered.
24. Within the 7 day period contemplated Mr Gosselin made a request for the decision of Miss Wright to be reconsidered. The decision was reconsidered by Mr Ben Jones who was described as the second determining officer and also part of the Back to Work Team. He upheld Ms Wright's decision, which was communicated to the representor by a letter, also dated 7th February, 2014.
25. The representor failed on 7th February, 2014, to attend before Ms Wright as required by her letter dated 30th January, 2014.
26. On 10th February, 2014, the representor was therefore written to and informed that he would be deprived of the basic component of income support for 14 days because a breach had occurred, namely a failure to attend an appointment on 7th February, 2014, ("Breach 1").
27. The letter also informed the representor of the consequence of any further breaches and the representor was required to attend for a further appointment on Monday, 17th February, 2014, at 10am.
28. The representor failed to attend the meeting with Ms Wright on 17th February, 2014.
29. On 19th February, 2014, the representor, due to his failure to attend on 17th February, 2014, was notified that the basic component of his income support claim would be removed for 28 days. In this judgment I refer to this notification as Breach 2. The effects of any subsequent breaches and the right for redetermination and to appeal were explained.
30. The representor was required to attend a further interview with Ms Wright on Monday, 24th February, 2014.
31. On 21st February, 2014, the representor was notified by Ms Julie Floyd of the Back to Work Team that she had carried out a reconsideration as second determining officer of the finding of Breach 1 dated 10th February, 2014. He was informed of his rights to appeal this decision. While the representor appealed this decision he only did so more than 28 days after being notified of the reconsideration and accordingly his appeal against Breach 1 was out of time by reference to paragraph 9 of the 1974 Order.
32. On 23rd February, 2014, the representor issued his appeal against the issue of the Warning. I refer to this appeal as Appeal 1.
33. On 6th March, 2014, Ms Cindy Stopher-Richford wrote to the representor informing him of her decision as second determining in respect of Breach 2. She concluded that the Breach 2 should stand and again informed the representor of his right to appeal.
34. On 10th March, 2014, the representor failed to attend an interview with Ms Wright.
35. On 14th March, 2014, the representor was informed that a Breach 3 Notice would be imposed depriving him of his entire claim for income support due to his failure to attend on 10th March, 2014. In respect of Breach 3 the letter of 14th March, 2014 stated:-
"Breach 3 - the entire Income Support claim which you are part of will close and NO benefit will be paid. For the avoidance of doubt, this will result in all components of your claim being stopped in respect of every member of your household."
36. The letter also explained that the warning period of 365 days would run from the date of the letter of 14th March, 2014, and then went on to say:-
"To have your claim reinstated you must immediately contact your Personal Adviser, Mentor or Job Coach to discuss what actions you need to take for this to happen. As a minimum you will be required to fully engage with the Department for 6 consecutive weeks."
37. I observe that while paragraph 5B(4) of the 2007 Regulations provides that where a Breach 3 has occurred, a person is deprived of benefit for 42 days, the letter of 14th March, 2014, appears to say something different. Accordingly, there is an issue as to whether benefit is restored on the expiry of a 42 day breach period, as long as an applicant is available for and seeking work on the expiry of the 42 day period, or whether an applicant has to satisfy the Social Security Department that he was available and actively seeking work during the 42 day period notwithstanding the withdrawal of income support. The latter approach could lead to income support being withdrawn for a much longer period than 42 days. This is what happened and Mr Gosselin challenges how long he was deprived of income support. He also relies on the fact that the latter approach was only authorised by an amendment to Regulation 5B (4) that came into force on 30th June, 2015.
38. On 23rd March, 2014, the representor requested a redetermination of the Breach 3 Notice issued on 14th March, 2014.
39. On 28th March, 2014, the representor was notified by Mr Peter Fosse of the Long Term Unemployment Unit, as second determining officer that he had concluded that the Breach 3 notification should stand and the representor was again notified of his rights of appeal.
40. Also 28th March, 2014, the representor appealed in respect of the Breach 1 Notice, but as I have recorded above this appeal was out of time.
41. On 2nd April, 2014, the representor completed an appeal in respect of Breach 2 which I shall refer to as Appeal 2.
42. On 13th April, 2014, the representor issued an appeal against Breach 3 which I refer to as Appeal 3.
43. On 28th May, 2014, the Tribunal dismissed the Appeal 1. Detailed written reasons were given by the Tribunal on 3rd July, 2014.
44. On 29th September, 2014, the Tribunal heard Appeal 2. Although the heading refers to Breach 2 and 3 it is clear from the contents of the Tribunal's reasons that the appeal was in respect of Breach 2.
45. On 3rd November, 2014, the Tribunal gave its detailed written reasons for dismissing Appeal 2. The Tribunal's written reasons recorded the representor's contentions that he wished the panel to refer issues of law in relation to the validity of the Warning to the Royal Court. He contended that the Tribunal could not reach a decision in relation to Breach 2 until after the issues of law had been dealt with. It is not clear from the Tribunal's reasons what these issues of were law but the Tribunal did reach the conclusion at paragraph 4 on page 7 of its decision that there were no issues of law which it felt had to be referred to the Royal Court.
46. On 5th November, 2014, the Social Security Department, through Mary Brooks as determining officer, wrote to the representor informing him that he had breached the warning initially issued on 29th January, 2014, by failing to attend a job club at 3pm on 31st October, 2014. Accordingly, his income support claim was withdrawn and the warning period was extended for a further 365 days, from the date of the letter of 5th November, 2014, was received. This is referred to as Subsequent Breach 3. The letter further stated as follows:-
"If you wish to have your claim reopened, please contact me immediately. You will be required to actively seek work for 42 consecutive days. Once your claim is reopened, further failures to actively seek work will result in another Breach 3 Notice being issued."
47. On 24th November, 2014, Mr Thomas Cairns as determining officer wrote to the representor informing him that he had carried out a reconsideration of Subsequent Breach 3 and upheld the decision reached on 5th November, 2014.
48. On 6th December, 2014, the representor issued an appeal against Subsequent Breach 3, which I refer to as Appeal 4.
49. On 6th March, 2015, the 2015 Regulations came into force altering the provisions in respect of rights to appeal to the Royal Court as set out at paragraph 14-16 above.
50. On 13th May, 2015, the Tribunal dismissed Appeal 3. Detailed written reasons were given on 9th June, 2015.
51. In its reasons the Tribunal noted that the representor's submissions that the 2007 Law did not refer to any power to sanction individuals and the representor's uncertainty whether the 2007 Law permitted the imposition of sanctions by regulation. At page 4 of the Tribunal judgment the Tribunal stated in response to this challenge that the Tribunal:-
".. is empowered under the statute which is appointed to deal with submissions of law, but that is that is in relation to the determination under appeal, and it is not for the Tribunal to decide on the validity or otherwise of subordinate legislation, as it was invited to do by the Appellant. That is a matter for the Royal Court. The Tribunal takes the legislation as being valid on the face of it."
52. The appeal was dismissed. No referral of any question of law to the Royal Court occurred.
53. On 3rd July, 2015, Appeal 4 against the issue of the subsequent second Breach 3 Notice was heard and was dismissed. Detailed written reasons were given on 7th August, 2015.
54. On 6th July, 2015, the representor wrote to the Tribunal setting out that in respect of Appeals 1 and 2, he did not need leave to appeal to the Royal Court, but as an alternative asked for leave, if it was necessary to do so, and also asked for leave to appeal in respect of Appeal 3.
55. On 28th August, 2015, the representor applied to the Tribunal for leave to appeal in respect of the Appeal 4 to the Royal Court.
56. On 22nd September, 2015, in respect of Appeal 1 the Tribunal agreed that no leave to appeal was required.
57. On 6th October, 2015, the Tribunal for the same reasons for Appeal 1 agreed that no leave to appeal was needed in respect of Appeal 2.
58. On 28th October, 2015, in respect of Appeal 3 the Tribunal refused leave to appeal.
59. On 5th November, 2015, the Tribunal refused leave to appeal in respect of Appeal 4.
60. On 6th November, 2015, Mr Gosselin's representation was presented to the Royal Court and subsequently referred to me for directions.
61. The fundamental issue raised by Advocate White was whether the representor was in reality making an application for judicial review. If he was, Advocate White wished to contend that such an application was significantly out of time and ought to be struck out. Alternatively if the application was an application for leave to appeal Advocate White wished directions to be given for any application for leave and any appeal to be determined promptly.
62. The conclusion I reached was that the remedy of judicial review, was a remedy of last resort and as a matter of discretion the Royal Court should not hear a matter by way of judicial review where there was an effective alternative remedy. In Planning Committee v Le Lesquende [1998] JLR 1 at page 13 line 6 to 19 the Court of Appeal stated as follows:-
"We are not persuaded by the Royal Court's observation (1997 JLR at 65) that the Board may decline to state a case, thereby nullifying the utility of the remedy. If the Board were to refuse to state a case in circumstances in which it could only reasonably do so, e.g. if there were a clear and significant error of law on the face of its award, it would certainly be amenable to judicial review in relation to that mis-exercise of discretion. It seems to us that under art. 12 of the 1961 Law, the court is not being asked for a mere academic opinion, but would upon the special case be entitled to give directions such as would nullify the effect of the award. For this reason in particular, we are not persuaded by the argument that the provisions for registration of the award make it impossible for the case stated procedure to be used after the award is handed down. Article 13 of the 1961 Law, as substituted by art. 4 of the Compulsory Purchase of Land (Procedure) (Amendment No. 3) (Jersey) Law 1981, provides:-
"(1) The award of the Board shall specify the amount awarded in respect of each matter the subject of the award and, insofar as the award relates to the acquisition of land on which there are charges which the States are bound under Article 6 of this Law to discharge, the amount specified shall be the balance after deduction of the charges.
(2) The Inferior Number of the Royal Court shall, on the application of the Greffier of the States, order the registration of the award of the Board in the Rolls of the Royal Court." Any award, even if registered, would be vulnerable to deregistration if the opinion of the court were adverse to it. Moreover, if it appeared on the face of the award that a party wished to challenge it, an application could be made to the Greffier not to apply for the award to be registered, which he could not, in the proper exercise of his discretion, refuse. Finally, in as much as the significance of the registration appears to be for the parties, not the world at large, objections grounded on a (defeasible) registration appear to us particularly insubstantial. However, we are faced in the instant case with this difficult problem. The forensic procedure in Jersey is adversarial and neither party has appealed against the exercise of the Royal Court's discretion. Moreover, even if, had such an appeal been made, we were minded to say that the discretion was flawed by reason of an imperfect analysis of the reach of art. 12 of the 1961 Law, in this instance, where the parties have engaged an available procedure, and a court with jurisdiction has not declined to exercise it, we consider that we would be trespassing beyond the boundaries of what is permissible to decline to order that the matter be heard merely because we for our part might have declined to do so. This is not a question of public policy on which this court can act of its own motion. Although we would be surprised to find any future challenge to a decision of the Board reaching this level of the hierarchy of the courts, it is our view that the Court of Appeal should continue to hear the substantive issues in the appeal."
63. In Syvret v Attorney General and the Constable of Grouville [2011] JCA 146, Beloff J. A. in setting out the history of judicial review in Jersey, at paragraph 25.(iii) stated:-
"It is a remedy of last resort, only to be deployed when other available remedies have been exhausted."
64. In this case I was not satisfied that other available remedies had been exhausted. In respect of Appeals 1 and 2 there is a right of appeal without any time limit to raise points of law with the Royal Court. In respect of Appeals 3 and 4, until rules of court are produced, there is an unlimited right of to seek leave to appeal on points of law from the Royal Court. Other available remedies to the representor have not therefore been exhausted and are available. Accordingly, I concluded it was not appropriate to give directions for a strike out hearing to take place on the basis that the representor should have applied for a judicial review because the representor has other options available to him.
65. I therefore gave directions for the representation to proceed to appeal in respect of Appeals 1 and 2 and the representation to be treated as an application for leave to appeal in respect of Appeals 3 and 4. However, I also directed that the appeals and the application for leave to appeal be heard together. Although this step is unusual, in the view of the chronology set out above I do not consider it possible to separate out the representor's criticisms of Appeals 1 and 2 from his applications for leave to appeal in respect of Appeals 3 and 4. Each of the appeals is part of an overall story where the representor has expressed his dissatisfaction about withdrawal of income support. I therefore directed that both the appeals and the applications for leave to appeal should be heard together. Finally, I record that I indicated to the parties at the outset of the hearing that this was my view and neither party objected to the matter being dealt with in this manner.
66. In view of the papers filed before me it is right that I make the following additional observations for the parties and for the assistance of the Royal Court:-
(i) As noted at paragraph 37 above, there is an issue about whether a breach 3 prior to 30th June, 2015, simply means that an applicant is deprived of income support for 42 days or whether an applicant has to show, during the 42 day period, even though the applicant is not entitled to income support, that he is actively seeking work.
(ii) To the extent that the representation raises human rights arguments, I considered that such arguments can be raised in the context of an appeal and human rights concerns did not have to be raised in an application for judicial review. I reached this view by reference to Article 8(1)(b) of the Human Rights (Jersey) Law 2000, which sets out that a person who claims that the States Assembly has passed subordinate legislation which is incompatible with a convention right, may rely on the Convention Rights in any legal proceedings. This means the Royal Court has power under Article 5 of the Human Rights law, if satisfied it is appropriate to do so, to make a declaration of incompatibility in any appeal under the 2007 Law as well as on an application for judicial review.
(iii) Thirdly, I felt it was arguable that the Royal Court had power to set aside subordinate legislation which the States was not authorised to pass by a law. This is whether or not such legislation is Human Rights compliant. Advocate White expressly reserved the right to argue the contrary.
(iv) Should the Tribunal have referred a challenge to the 2007 Regulations to the Royal Court.
67. In light of my conclusion that there is an alternative remedy to judicial review available and having directed that the appeals and the applications for leave to appeal should be heard together, I directed the representor to file any evidence by affidavit he would wish to file within 28 days, together with his skeleton argument and authorities. The respondents were to file their affidavits, if any, and their skeleton arguments and authorities within a further 28 days.
Authorities
Income Support (Jersey) Law 2007.
Social Security (Jersey) Law 1974.
Income Support (General Provisions) (Jersey) Order 2008
Social Security (Determination of Claims and Questions) (Jersey) Order 1974.
Social Security Health Insurance and Income Support (Miscellaneous Provisions) (Jersey) Order 2015.
Income Support (Miscellaneous Provisions) (Jersey) Order 2015.
Human Rights Law (Jersey) Law 2000.
Planning Committee v Le Lesquende [1998] JLR 1.
Syvret v Attorney General and the Constable of Grouville [2011] JCA 146.