Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2006] NISSCSC C4_05_06(JSA) (31 May 2006)

Decision No: C4/05-06(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
JOBSEEKER'S ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 10 May 2005
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of the tribunal, terminating the claimant's jobseeker's allowance (JSA) from 9 June 2004 as he had failed to provide a signed declaration of unemployment on 10 June 2004 and had not shown good cause for so doing within five working days. Leave to appeal was granted by a Commissioner on 6 March 2006 for the following reasons:

"It is arguable that the decision was wrong in law, because it seems to be common case between the claimant and the Department that the claimant did not fail to show good cause (before the end of the fifth working day) for his failure to attend on 10 June 2004 to sign his fortnightly declaration of unemployment."

2. Having considered the circumstances of the case I am satisfied that the appeal can properly be determined without a hearing.
3. The claimant has represented himself while Ms Ursula Rush, of Decision Making Services, represents the Department.
4. The Department has supported the claimant's appeal but, in light of the circumstances of the case, I do not consider that it is appropriate to make a consent decision under Article 15(7) of the Social Security (Northern Ireland) Order 1998.
5. The primary issue in this case is whether or not the tribunal was correct in determining that the claimant was not entitled to JSA from 9 June 2004, as he had failed to provide a signed declaration of unemployment on 10 June 2004 and did not show good cause for not doing so within five working days.
6. The background of the case is as follows. On 10 June 2004 the claimant failed to attend Newtownabbey Jobs and Benefits Office to sign his fortnightly declaration of unemployment. As a result, a decision-maker, on 18 June 2004, disallowed JSA from 27 May 2004 and notification of this was issued on the same day. On his next signing day, namely, 24 June 2004, the claimant made a fresh claim for JSA and appealed the decision to disallow his JSA. In his grounds for appeal he stated that he had been notified of an interview with a client adviser on 10 June 2004 but had advised on the form that accompanied the interview letter that he would be unable to attend because he was working for the Electoral Office on 10 and 11 June 2004. He stated that he had returned the form on 1 June 2004. On receipt of his appeal and form JS40S, which had been completed by the claimant on 9 June 2004, the decision was changed. On 7 September 2004 the decision-maker decided that JSA should be disallowed from 10 June 2004, not 27 May 2004 as originally determined. In the Department's submission to the tribunal, the Department recorded in the facts of the case that the appeal lapsed because of the new decision. On 4 January 2005 the claimant appealed the decision made on 7 September 2004.
7. The tribunal disallowed the appeal and gave the following reasons for its decision:

"The Appellant was required to attend Newtownabbey Jobs and Benefits office on 10 June 2004 to sign his fortnightly declaration of unemployment. The relevant legislation regarding the requirement to provide a signed declaration is summarised in paragraphs 1-3 of section 5 of the Decision Maker's submission. Regulation 25(1)(c) of The Jobseeker's Allowance Regulations (NI) 1996 stipulates that subject to regulation 27, entitlement to a jobseeker's allowance (JSA) shall cease if the claimant fails to provide a signed declaration, as referred to in regulation 24(6), on the day on which he ought to do so; which in the Appellant's case was 10 June 2004. Regulation 26(c) stipulates that entitlement to a JSA shall cease on the day on which the claimant ought to have provided the signed declaration. Regulation 27 of The Jobseeker's Allowance Regulations (NI) 1996 states that entitlement to a JSA shall not cease if the claimant shows, before the end of the fifth working day after the day on which he failed to provide a signed declaration in accordance with regulation 24, that he had good cause for the failure. Regulation 29 sets out matters to be taken into account in determining whether a claimant has good cause for failing to comply with a requirement to provide a signed declaration on the day on which he ought to do so. The list in regulation 29 is not exhaustive.

In light of the available evidence the Tribunal finds that the Appellant failed to attend and sign his declaration of unemployment on 10 June 2004 and that he failed to show good cause for this failure before the end of the fifth working day after 10 June 2004. The evidence indicates that the Appellant did not attend the office until 24 June 2004, which is more than 5 working days after 10 June 2004. The Appellant stated in his letters of appeal dated 6 July 2004 and 4 January 2005 that he was also required to attend for an interview with a Client Advisor on 10 June 2004 but that he could not attend because he was working for the Electoral Office on that date. He stated that he detailed this on the form which came with his interview letter and posted it back on 1 June 2004. A copy of this form at tab 5 of the papers indicates that it was received by the Client Advisor on 8 June 2004. The Appellant stated in his submitted letter dated 16 March 2005 that he had addressed the envelope containing this reply form to JSA section and indicated that he considered it should have been passed by the Client Advisor to that section prior to 28 June 2004, which was the date on which it was received in JSA section. The Tribunal finds that this form was not notification from the Appellant to JSA section that he would not be attending to sign his declaration on the 10 June 2004 or of his reasons for this because it was a reply to the Client Advisor in relation to the interview appointment only. In this form the Appellant did not mention his claim for JSA; he did not ask the Client Advisor to contact JSA section on his behalf concerning his requirement to provide a signed declaration nor did he request advice about an alternate signing day. The Appellant also did not contact JSA section before the end of the fifth working day after 10 June 2004 to notify that section of his reason for failing to attend to provide his signed declaration of unemployment on 10 June 2004. The onus was on the Appellant to ensure that he notified JSA within the time limit of his reason for his failure to sign the declaration of unemployment. In relation to the matters to be taken into account listed in regulation 29 there is no evidence that the Appellant misunderstood the requirement on him to provide a signed declaration due to any learning, language or literacy difficulties or that he was given misleading information by an employment officer or that adverse postal conditions were applicable."

8. From the history of the case there is an obvious difficulty arising out of the purported treatment by the tribunal that the claimant's appeal had lapsed because of the new decision. However, the Department in its written submissions dated 23 September 2005 has made the following relevant observations:

"…

10. The original decision under appeal was given on 18.06.04, disallowing JSA from 27.05.04, ("the 1^st decision"). After [the claimant] appealed this decision and completed form JS40S, declaring that he was actively seeking and available for work up to and including 09.06.04, a further decision was made on 07.09.04, disallowing JSA from 10.06.04, ("the 2^nd decision"). The 2^nd decision is shown at tab 4 and is recorded as a supersession. The legislation quoted is Article 11 of the Order and regulation 6 of the Decisions and Appeals Regulations. It is the 2^nd decision that is the subject of the appeal in this case.

11. Article 13 of the Social Security (Northern Ireland) Order 1998 provides for a right of appeal against any decision of the Department under Article 9 or 11 (whether as originally made or as revised under Article 10). If the 2^nd decision is made under Article 11 then the appeal against the 1^st decision remains outstanding. However, it is my submission that the Decision Maker intended that the 2^nd decision was a revision of the 1^st decision made on 18.06.04. This is because the Department, in its submission to the tribunal, recorded that the appeal against the 1^st decision had lapsed. The only circumstance where that could have happened in this case was where the 1^st decision was revised by the later decision under Article 10, lapsing it in accordance with sub-paragraph (6).

…"

9. In my view the Departmental submission made by Ms Rush on this point is correct and that the appeal in this case is against the second decision.
10. Ms Rush has also pointed out that the tribunal had erred in purporting to terminate the JSA as from 9 June 2004 when the effective date of termination was in fact one day later, namely, 10 June 2004.
11. However, there are more fundamental difficulties in the present case. The claimant made the following submission:

"I believe the tribunals assessment is incorrect, due to the fact that I couldn't attend the interview and the signing on procedure because of work commitments.

When I posted the form back to the J.S.A department I clearly informed the client advisor I wouldn't be attending the interview. Previously, the client advisor who conducts the interview, also performs the signing on procedure – the same individual administers both tasks – nowhere in the JS40 booklet does it state that I had to notify two separate parties of my change in circumstances, nor does it say anything about coming down to the office within "5 working days", to sign a fortnightly declaration of unemployment."

12. Ms Rush submitted that the claimant had shown good cause before the end of the 5^th working day for his failure to attend on 10 June 2004, as he had notified the personal adviser on 8 June 2004 that he would be working on 10 June. She also submitted that the personal adviser was an employment officer for the purposes of Article 10(3) of the Jobseeker's (Northern Ireland) Order 1995 even though the adviser was an officer of the Department for Employment and Learning rather than the Department for Social Development.
13. In the circumstances I agree that the tribunal has erred in law although I wish to make it clear that the tribunal was not helped by the form of the Departmental submissions that were proffered to it for the paper hearing. Accordingly, I allow this appeal as the tribunal has erred in law in determining that the claimant had not shown good cause for his failure to attend on 10 June 2004. Therefore I set aside the tribunal's decision and refer the matter back to the Department to consider whether to award JSA for the period 10 June 2004 to 23 June 2004 in light of my decision, providing, of course, that all conditions of entitlement are satisfied for that period.

(signed): J A H Martin QC

Chief Commissioner

31 May 2006