Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2000] NISSCSC C2/00-01(JSA) (3 November 2000)

 


Decision Nos: C2/00-01(JSA)

C1/00-01(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 JOBSEEKERS ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 3 December 1998 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is a decision covering two applications by the claimant against decisions of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. The decision were dated 3 December 1998. The Tribunal was dealing with appeals against the decisions of two Adjudication Officers as follows:-

1. This decision (the first decision) was dated 27 May 1998 and was that Jobseekers Allowance was not payable to the claimant from 19 May 1998 to 22 May 1998 (both dates inclusive) as he had failed to attend a client adviser interview on 19 May 1998 and had not shown good cause for this failure to attend.

2. This decision (the second decision) was dated 28 May 1998 and was that the claimant was not and could not be treated as actively seeking employment in the week 9-15 May 1998. (both dates inclusive) He was treated as actively seeking work in the period 16-18 May 1998 and his claim for Jobseekers Allowance was terminated from 19 May 1998.

2. He was treated as actively seeking work in the period 16-18 May 1998 under the provisions of regulation 19(1)(i) of the Jobseekers Allowance Regulations (Northern Ireland) 1996, a provision in force at the relevant time.
3. I held a hearing of the applications. Unfortunately the claimant did not attend the hearing. He had sought and been granted a postponement of a previous hearing on health grounds and he requested a postponement of the present hearing on the grounds that there was a funeral which he wished to attend. I refused the postponement request, which was received in the Commissioners office on the afternoon prior to the hearing. I directed, and understand, that telephone calls were made to inform the claimant that the postponement request had been refused but there was no reply from the telephone number given. Secondly, I directed and understand, that a letter was sent to the claimant by first class post the day before the hearing informing him that the postponement had been refused. The claimant did not, however, attend the hearing. Mrs McRory of the Decision Making and Appeals Unit attended to represent the Adjudication Officer (now known as the decision maker). I am obliged to Mrs McRory for her excellent and very thorough submission, which is a fine example of an impartial, comprehensive and practically helpful submission. Her assistance in this case has been considerable.
4. I grant leave to appeal and the respondent having no further observations to make I proceed to deal with the applications as appeals and determine all questions accordingly.
5. As the two decisions are linked and as my eventual decisions on the appeals (given at paragraphs 14 and 36 respectively also link the cases I have decided to issue a decision covering the two appeals. I refused the postponement request as I was satisfied that I could deal with this matter without the attendance of the claimant and as I was satisfied also that the interests of justice were best served by my proceeding to deal with the matter in his absence. I must, however comment that I find the claimant's conduct in not attending the hearing and in seeking a postponement on somewhat vague grounds and for the second time to be regrettable. It is to be hoped that he will attend any future hearings on any appeal he may have.
6. I propose to deal first with the first Tribunal decision. In advance of the hearing I had raised an issue as to whether or not the Tribunal had ignored a piece of evidence in its decision. The piece of evidence was that contained in a letter of 14 September 1998 and was the final sentence of that letter. The letter was from the claimant and was in fact the letter treated as the letter of appeal.
7. The final paragraph of the letter read as follows:-

"On 21/8/98 I asked for further details but again neither acknowledgment nor answer has been forthcoming. I consider that I was fully justified in not attending in that I was engaged in an essential pre-tribunal briefing throughout that morning for the pending PM Tribunal. The SS office was fully aware of this."

8. The background fact situation was that the claimant had signed the relevant declaration under regulation 24(6) of the Jobseekers (Northern Ireland) Regulations 1996 on 8 May 1998. He was due to sign again on 22 May 1998 but did not attend his local office till 26 May 1998. The office was closed on 23 (Sat) and 24 (Sun) and 25 (Mon) May 1998. The claim for Jobseekers Allowance made on 26 May 1998 was therefore treated as made on 23 May 1998.
9. The claimant had been sent a notice to attend a client adviser interview on 19 May 1998. This was in connection with his claim for Jobseekers Allowance. It was not in dispute that the claimant did not attend this interview but he purported to show good cause for failure to attend on that day. The Adjudication Officer did not accept that good cause had been shown and whether or not good cause had been shown was the central issue before the Tribunal.
10. At the hearing before the Tribunal the claimant contended that on 18 May 1998 he had telephoned his local office (Knockbreda Social Security Office) informing them that he had an appointment at 10.30am on 19 May 1998 with the Citizens Advice Bureau in connection with a Tribunal hearing scheduled for the 19 May 1998. The claimant stated to the Tribunal that he had sought a postponement of that hearing (i.e. 19 May 1998) which postponement was granted but the claimant stated that he had not been informed of the fact that the postponement was granted until he returned to his home after meeting with the Citizens Advice Bureau representative. His interview with his client adviser was fixed for 10.30am on 19 May 1998, as was the appointment with the Citizens Advice Bureau.
11. I should say at the outset that I would not necessarily consider that a meeting with an adviser in the Citizens Advice Bureau was good cause for failing to attend a client adviser interview. It would depend on the individual circumstances of the case. In this case, however, that was not the only matter which the Tribunal had to decide. The claimant was contending that he had telephoned Knockbreda Social Security Office on 18 May 1998 to advise that he would not be attending on the 19 May 1998. He was further contending that the person he spoke to had told him that a new appointment would be sent out to him. If that had been accepted it would probably have been enough to show good cause. In its reasons for decision the Tribunal stated that it did not believe that the claimant had rung or that the interview arranged for the 19 May 1998 was cancelled. It gave a variety of reasons for this and one of these reasons was that the letter referred to above and dated 14 September 1998 did not refer to the claimant telephoning the Social Security Office to cancel the interview. The Tribunal states:-

"Instead his letter of 14^th September 1998 simply states the Appellant's contention that "I was fully justified in not attending in that I was engaged in an essential pre-tribunal briefing throughout that morning for the pending pm Tribunal". The Tribunal believe if the Appellant had indeed obtained the Office's prior agreement not to attend the Client Adviser's interview and their undertaking to arrange a new appointment, he would have referred to this in his grounds of appeal."

12. It will be seen from the above that the Tribunal placed considerable reliance on the fact that there was not a mention of the telephone call to his client adviser in the claimant's letter of 14 September 1998. In that respect the Tribunal was quite correct in that the letter contained no specific reference to a telephone call. However the Tribunal has gone further and stated:-

"Instead his letter of 14 September 1998 simply states the Appellant's contention that "I was fully justified in not attending in that I was engaged in an essential pre-Tribunal briefing through out that morning for the pending PM Tribunal.""

13. In fact what the claimant had actually said included the above extracted paragraph with its final sentence. "The SS office was fully aware of this."
14. As the Tribunal placed such reliance on the terms of this letter and as it does appear that the final sentence was ignored, I find that the Tribunal erred by ignoring a crucial piece of evidence. That sentence gives a different cast to the letter of 14 September 1998.
15. Mrs McRory supported the appeal in this respect and I consider that she was quite correct so to do.
16. I should mention that there were other reasons for the Tribunal not accepting the claimant's evidence and my having set this decision aside does not necessarily mean that any future Tribunal must necessarily accept it. However, any future Tribunal must take on board all the evidence put before it and assess that evidence and its probative value. It is because the terms of the reasoning of the instant Tribunal indicate to me that it ignored the relevant and important final sentence of the letter of 14 September 1998 that I am setting the decision aside.
17. I remit the matter and the appeal from the second decision to a differently constituted Tribunal. That Tribunal should take on board the views expressed in this decision and in particular should take account of the letter of 14 September 1998 in full. Its assessment of the evidence provided by that letter is a matter for the Tribunal. For reasons, which will be apparent later, the appeal from the Adjudication Officer's second decision (that of 28 May 1998) should be dealt with first and by the same Tribunal.
18. Before I finish with the appeal in relation to the first decision I should comment on a further issue raised by Mrs McRory. This is an issue raised by decision CJSA/4775/1997 (a decision of a Great Britain Commissioner). That decision considered a question of failure to comply with a notice to attend in accordance with regulation 23 of the Jobseekers Allowance Regulations 1996 as they stood in 1997 and stood at the time of the appealed Adjudication Officer's decisions in this case. The Commissioner was dealing with the meaning of regulation 25 of those regulations. Regulation 23 of the Great Britain legislation states:-

"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."

Regulation 25 states:-

"(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;

(b) if

(i) following a failure to attend at the time specified in a notice under regulation 23, 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."

19. The Northern Ireland equivalent legislation, except that it substitutes "the Department" for "the Secretary of State", is identical.
20. The Commissioner in the above decision interpreted regulation 25 by finding regulation 25(1)(b) to be simply an example of the situation in regulation 25(1)(a). If that interpretation was correct in this particular case the claimant would have required two notices to be sent before his Jobseekers Allowance could cease for failure to comply with the notice.
21. Mrs McRory contended that the Commissioners interpretation was not correct and that some doubt had been cast on it in a later decision – CJSA/4234/1998 of Commissioner Mesher (another Great Britain Commissioner).
22. I do not consider that the reasoning in paragraph 11 of the decision CJSA/4775/1997 is correct. It seems to me that regulation 25(1)(a) is to deal with the situation where a claimant fails to attend at all on the day specified in a notice under regulation 23. Regulation 25(1)(b) deals with the situation were a claimant fails to attend at the time specified in the notice. If the claimant fails to attend on the day specified then he is immediately subject to a cessation of jobseekers allowance entitlement. If however he fails to attend at the time specified (but does attend on the day) he is not subject to such cessation until a second notice has been sent out and not complied with. It seems to me a somewhat bizarre reading of regulation 25(1) to read (b) as being an example of (a). The entire structure of the regulation is different to this. True there does not seem to be an immediately obvious reason why a notice requiring attendance under an employment program or training scheme should be excepted from the provisions of regulation 25(1)(b). That does not mean that the interpretation as contended by the Commissioner in the above case should be given. For future cases the matter appears to have been put beyond doubt by amendments to the regulation
23. The matter has, as mentioned above now been fully dealt with by amendments but I do consider that the law at the time in question in decision CJSA/4775/1997 and of this case was not correctly interpreted by that decision. The correct interpretation in my view is that given in the preceding paragraph and contended by Mrs McRory.
24. The new Tribunal to which the appeal on the first decision is remitted should also ensure that it deals only with whether good cause was established for the day of 19 May 1998. Good cause for any other day does not have to be considered.
25. The final issue as to the date from which any disallowance of jobseekers allowance should begin by reason of failure to comply with a notice under regulation 25 is to be determined under the provisions of regulation 26. I agree with Mrs McRory that where any of the circumstances of regulation 25(1)(a), (b) or (c) applies the day from which entitlement to jobseekers allowance should cease is which ever is the earliest of the three days set out in regulation 26.
26. It is therefore necessary to deal with the second decision at this stage as the determination of what was the earliest of the three days mentioned in regulation 26 and is related to it. The terms of regulation 26 are set out here under:-

"26. Entitlement to a jobseeker's allowance shall cease in accordance with regulation 25 (failure to comply) on whichever is the earlier of –

(a) the day after the last day in respect of which the claimant 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 (attendance).

27. The second decision which was appealed to the Tribunal was that the claimant was not and could not be treated as actively seeking employment in the benefit week from 9 May 1998 to 15 May 1998 (both dates inclusive) because he failed to attend the client adviser interview on 19 May 1998 and did not provide any evidence of job search.
28. The legislation referred to was article 9 of the Jobseekers Allowance (Northern Ireland) Order 1995 and regulation 18 of the above mentioned Regulations. Regulation 18 is made pursuant to article 9 and sets out the steps which a person shall be expected to have to take in any week. A list of steps is set out. These steps do not include the provision of evidence of job search but they do include taking numerous steps to search for a job. A person cannot be barred from entitlement to Jobseekers Allowance simply because he does not provide evidence of job search. However if he does not provide such evidence he is, of course, at grave risk of not being accepted as having carried out a job search by taking the steps in regulation 18. So while the Adjudication Officer's decision could perhaps be better phrased I think nothing hinges on this.
29. Article 9 provides that 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 (of which regulation 18 is one) make provision with respect to the steps which it is reasonable for a person to be expected to have to take in any week. It is therefore in a claimant's interest to keep a record and to have so far as possible further corroborative proof of the steps that he has taken to seek employment.
30. In its decision in this case the Tribunal stated, "The Appellant has not produced any evidence that he actually wrote to any of the 3 employers to apply for the job vacancies or that he telephoned them as required by his Jobseekers agreement." This was against an evidential background where the claimant stated at one stage that he had contacted these employers. The Tribunal was incorrect in its conclusion that there was no evidence that the claimant actually wrote to any of three employers or telephoned them. The claimant himself gave evidence that he had done so. That evidence could have been accepted though of course the Tribunal, if it found the claimant an unreliable witness, was entitled to reject his evidence in relation to this and indeed there was other possibly inconsistent evidence. However, it was not entitled to say that the evidence must be automatically rejected because there was no corroborative evidence. A claimant does not have to produce corroborative evidence though obviously his case will be strengthened if he can do so. A Tribunal is of course entitled to reject uncorroborated evidence (or indeed corroborated evidence) but it is not bound to do so. I consider that the tenor of the reasoning of the decision by the Tribunal in this case is indicative of a misunderstanding of the probative requirements. The tenor of the reasoning seems to me to indicate that the Tribunal thought that some further corroborative evidence is always necessary and that is not the case. The Tribunal has erred in that respect and I set the decision aside for that reason.
31. I come now to deal with the matter of the three printouts of job vacancies dated 8 May 1998.
32. The Tribunal was given, by the claimant, three computer printouts of job vacancies which the claimant stated he had obtained from the Training and Employment Advisory Service. The Tribunal has made no finding as to whether or not the claimant obtained these computer printouts from the Training and Employment Agency. It appears that the claimant was given an instruction to attend the Training and Employment Agency at Gloucester House with regard to a job vacancy. This instruction was given on the 8 May 1998 by his client adviser in his local Social Security Agency. The instruction was to attend the said Training and Employment Office on or before 11 May 1998 with relation to three job vacancies. The claimant stated to the Tribunal that he had attended and produced the three printouts as evidence of his so doing. The Tribunal has found:-

"The Tribunal do not accept that the fact that the Appellant obtained these 3 print-outs is proof that he took undertook steps to seek work in compliance with his Jobseekers agreement."

33. The Tribunal is correct in that obtaining these printouts on the 8 May 1998 would not have shown that the claimant sought employment in the benefit week beginning 9 May 1998. However, if it was correct that the claimant obtained these printouts from Gloucester House then he would have complied with his client adviser's direction of 8 May 1998. It appears that the Tribunal concluded that the claimant had failed to comply with his client adviser's direction of 8 May 1998 but in fact if he had obtained the printouts from the Training and Employment Agency at Gloucester House on 8 May 1998 then he would have complied with that direction. The Tribunal should have considered whether or not these three printouts indicated that the claimant did so attend.
34. In relation to whether or not he was actively seeking work in the weeks covering the period 9 to 16 May 1998 (both dates inclusive) attending the Training and Employment Agency on the 8 May would not per se be relevant. I do not, therefore, consider that this error itself violates the Tribunal's decision. However the Tribunal concluded that there was no evidence that the appellant was actively seeking work. The claimant himself had actually told the Tribunal that he did apply for the three jobs in question though there was other evidence (notably in his letter of 16 August 1999 where he says that any consideration of those applications was irrelevant and that he made numerous other job applications). As mentioned above the Tribunal was of course entitled to reject any evidence if it did not find it reliable. What it was not entitled to do however was to conclude that the claimant's evidence was not evidence. The claimant's evidence could have been accepted by the Tribunal and could, at its height, have, if accepted, established that he was actively seeking work. Instead, however, the Tribunal appeared to ignore this evidence and appeared to have the view that corroborative evidence must always be produced.
35. It may have taken this view because of the duty placed on a claimant by regulation 24 of the Jobseekers Allowance regulations. These placed the duty on the claimant of providing evidence in connection with his claim or any question arising out of it where required so to do by the Department. Regulation 24(6) also requires a claimant, where required so to do by the Department to provide a signed declaration covering the matters set out in that paragraph. If there is a failure to comply with regulation 24(6) the entitlement to a Jobseekers Allowance shall cease. There is no provision that it shall cease for the failure to supply other evidence required. Of course as stated above the failure to supply that other evidence may lead a decision maker or tribunal to conclude that in fact the claimant has not been searching for work so it is in the claimant's own interest to supply any evidence required. However, having read the totality of the Tribunal's reasoning it seems to me that the Tribunal had either formed the view that corroborative evidence was the only evidence which could be considered or that the mere non-furnishing of evidence under regulation 24 (excluding regulation 24(6)) was of itself sufficient grounds to disallow the claimant. Neither is of course correct.
36. I therefore set aside, as in error of law, the Tribunal's decision on the second Adjudication Officer's decision.
37. I direct the new Tribunal to consider first the decision of 28 May 1998 (the actively seeking work decision). It should bear in mind the provisions of regulation 18 and decide what steps the claimant actually did take in the benefit week in question 9 to 15 May 1998 and it also appears the days 19-22 May 1998. It should decide bearing in mind Article 9 of the Jobseekers (Northern Ireland) Order 1996 and regulation 18 of the said Regulations on whether or not the claimant was actively seeking work in the weeks 9-15 May 1998 and 16-22 May 1998 (all dates inclusive) and if not whether or not there are any periods during those weeks when he can be treated as actively seeking work. It does not appear to be in dispute that by virtue of regulation 19(1)(j) he can be so treated for the period 16-18 May 1998 inclusive.
38. It should also consider whether there was any failure to provide a signed declaration within the provisions of regulation 24(6).
39. It should then move on to consider the decision of 27 May 1998 (the decision relating to the 19 May 1998). It should determine whether the claimant has shown good cause for his failure to attend on the day specified in the notice under regulation 23 (regulation 25(1) is relevant). The onus of showing good cause will lie with the claimant. If he cannot show good cause then benefit will cease for that reason at least from that date.
40. The claimant will not be entitled to Jobseekers Allowance for any period during which he was not actively seeking work. If any of the circumstance in regulation 25(1) applies to the claimant then he will not be entitled to Jobseekers Allowance from the earliest of the three days set out in regulation 26 subject to the final provision to that regulation.
41. The submissions by the Adjudication Officer to the Tribunal in these cases were not in my view sufficiently comprehensive. It would be helpful to the Tribunal and possibly to the claimant if more comprehensive submissions possibly incorporating some of Mrs McRory's excellent presentation to me could be prepared and submitted in advance of the hearing.

(Signed): M F BROWN

COMMISSIONER

3 NOVEMBER 2000