Northern Ireland - Social Security and Child Support Commissioners' Decisions

Application No: A2/16-17(JSA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

THE SOCIAL SECURITY COMMISSIONERS (PROCEDURE) REGULATIONS (NORTHERN IRELAND) 1999

 

 

JOBSEEKER'S ALLOWANCE

 

 

Application by the claimant to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 8 March 2016

 

 

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1. This is a claimant's application for leave to appeal from the decision of an appeal tribunal sitting at Belfast.

 

2. The application for leave to appeal is withdrawn from 15 February 2017.

 

3. Below, I set out the circumstances which led to withdrawal of the application and make brief observations. These observations have no formal weight or precedent value as this is not a determination of the application, but they are advanced for guidance purposes.

 

REASONS

 

Background

 

4. The applicant claimed jobseekers allowance (JSA) from the Department for Social Development (the Department) from 11 November 2015. As a condition of entitlement to JSA, the applicant was required to attend Lisburn Jobs and Benefits Office every fortnight on a Tuesday to sign on. He failed to attend the Jobs and Benefits Office on Tuesday 1 December 2015. He did attend on 2 December 2015 and indicated that he had forgotten to sign on. On 8 December 2015 the Department decided that the applicant had not shown good cause for his failure to sign on and that a one week "sanction" should be applied - namely, that JSA should not be paid to him from 9 December 2015 to 15 December 2015 inclusive. The applicant appealed.

 

5. The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone on 8 March 2016. The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal's decision and this was issued on 28 June 2016. The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was refused by a determination issued on 3 August 2016. On 23 August 2016 the applicant applied for leave to appeal from a Social Security Commissioner.

 

Grounds

 

6. The applicant submits that the tribunal has erred in law on the basis that:

 

(i) the Department had accepted his excuse;

 

(ii) the tribunal did not give him enough time to put his case across and to put further evidence.

 

7. The Department was invited to make observations on the appellant's grounds. Mr Crilly of Decision Making Services (DMS) responded on behalf of the Department. He submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application.

 

The tribunal's decision

 

8. From its statement of reasons, I observe that the tribunal had documentary evidence consisting of the Departmental submission, a copy of a JSA733 letter, sent to the applicant by the Department on 1 December 2015, and a copy of the applicant's JSA appointment book, showing 1 December 2015 as a signing on date. It heard oral evidence from the applicant. He indicated that he had job-related interviews on either side of the signing day and completely forgot to sign on. He went to the office on 2 December 2015 and was told that it was "ok" and he was given a warning. He stated that he was told at the JSA office that the next time he missed signing he would lose benefit. However, he was later deducted one week's money.

 

9. The tribunal set out its understanding of the relevant legal test in its statement of reasons. It found that, as the applicant had failed to sign on, he was required to make contact with an employment officer and show that he had good cause for not signing. It decided that he had not shown good cause as that term is defined in the relevant legislation. It therefore disallowed the appeal.

 

Relevant legislation

 

10. The Jobseekers Allowance Regulations (NI) 1996 make provision relevant to this case. A requirement to attend at a particular place and time arises from regulation 23, which reads:

 

23. A claimant shall attend at such place and at such time as an employment officer may specify by a notification which is given or sent to the claimant and which may be in writing, by telephone or by electronic means.

 

11. A sanction may be applied by the Department if a claimant fails to comply with the instruction specified in a notification. The relevant provisions appear at regulation 27A(1), which reads:

 

27A.—(1) A jobseeker's allowance is not to be payable for the period prescribed in regulation 27B (prescribed period for the purposes of regulation 27A) if either the first or the second condition is satisfied.

 

(2) The first condition is satisfied if a claimant—

 

(a) fails to attend on the day specified in a relevant notification;

 

(b) makes contact with an employment officer in the manner set out in a relevant notification before the end of the period of 5 working days beginning with and including the first working day after the day on which he failed to attend on the day specified; and

 

(c) fails to show good cause for that failure to attend.

 

12. The question of what amounts to "good cause" at regulation 27A(1)(c) is elaborated upon by regulation 28, which provides:

 

28.—(1) Subject to regulation 30 (circumstances in which a claimant is to be regarded as having good cause for failing to comply with a notice under regulation 23), in determining, for the purposes of regulation 27A (circumstances in which an allowance is not to be payable), whether a claimant has good cause for failing to comply with a relevant notification the matters which are to be taken into account shall include the following—

 

(a) whether the claimant misunderstood the requirement on him due to any learning, language or literacy difficulties of the claimant or any misleading information given to the claimant by an employment officer;

 

(b) whether the claimant was attending a medical or dental appointment, or accompanying a person for whom the claimant has caring responsibilities to such an appointment, and whether it would have been unreasonable, in the circumstances, to re-arrange the appointment;

 

(c) any difficulty with the claimant's normal mode of transport and whether there was any reasonable available alternative;

 

(d) the established customs and practices of the religion, if any, to which the claimant belongs;

 

(e) whether the claimant was attending an interview for employment.

 

13. Regulation 30 has no relevance to the present application.

 

Submissions

 

14. I directed further submissions from the Department. I observed that the language of regulation 28 of the JSA Regulations provided that, in determining whether a claimant has good cause for failing to comply with a relevant notification, the matters which are to be taken into account shall include those matters set out at regulation 28(1)(a) to (e). I directed the Department to make submissions on whether the correct approach to regulation 23 is:

 

(i) to confine consideration of good cause to only those matters itemised at 23(1)(a) to (e); or

 

(ii) to consider the matters itemised at 23(1)(a) to (e) but also to consider any other matter which might appear relevant to the question of whether the claimant can establish good cause.

 

15. Mr Crilly responded to submit that the use of the words "shall include the following" in the body of regulation 28 prescribes that a decision-making authority must include but not restrict itself to consideration of the conditions in paragraph (1). Therefore, if none of the conditions in heads (a) to (e) of regulation 28(1) are applicable, then the decision-making authority must go on to consider all of the circumstances of a particular case to confirm if there are any further mitigating factors that, if present, may lead to a determination that good cause is appropriate in that instance.

 

16. Mr Crilly submitted that the statement of reasons suggested that the tribunal took the view it was restricted to considering only the requirements in heads (a) to (e) of paragraph (1). As a result, it proceeded on the basis that, since none of these were met in the applicant's case, he could not show good cause for his failure to attend and provide a signed declaration on 1 December 2015. He submitted that such a restrictive approach was wrong. He further submitted that the tribunal's failure to take into account any other circumstances or possible mitigating factors that might have arisen from such considerations represented an error in law.

 

17. Mr Crilly referred to Great Britain Commissioner's Decision CJSA/473/2003, which was concerned with a claimant's failure to sign due to his forgetting to do so. In considering the matter, the Commissioner noted in paragraph 19 at the end of the decision:

 

"If the claimant simply forgot to sign on, then he will not have good cause. However, he has never been asked why he forgot. There may have been things happening in his life that caused him to forget. And they may amount to good cause for the purposes of regulation 27 of the Jobseeker's Allowance Regulations 1996".

 

18. Mr Crilly noted the circumstances of the applicant's case and submitted that, notwithstanding the tribunal's approach, the outcome arrived at by the tribunal was correct.

 

19. The applicant responded, indicating that he now had a better understanding of the relevant law. He explained the circumstances in which he had failed to sign on. He conceded that his case did not fit properly within the "good cause" criteria and asked to withdraw his application.

 

Observations

 

20. The submission of Mr Crilly concurs with my own understanding of the relevant law and appears to me to be correct. The effect of regulation 28(1) is to require the tribunal to consider whether any of the circumstances set out at (a) to (e) are relevant to the particular case. However, the use of the term "shall include" indicates that these are not the only grounds on which good cause may be established and a tribunal should also consider whether there are any other circumstances relevant to the particular failure to attend at the specified place and time which would be capable of amounting to good cause. A tribunal could err in law if it failed to do so.

 

21. Mr Crilly and the applicant have each engaged with this application in a candid and pragmatic manner, and I am grateful to them for that.

 

22. The application is withdrawn under regulation 26(1) of the Social Security Commissioners (Procedure) Regulations (NI) 1999.

 

 

 

(Signed): O Stockman

 

Commissioner

 

 

16 March 2017