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[1990] UKSSCSC CIS_315_1989 (22 May 1990)

R(IS) 6/91

Mr. M. H. Johnson CIS/315/1989

22.5.90

Availability for employment - question not immediately determinable - whether decision made on an assumption must make that explicit

The claimant was unemployed with no entitlement to unemployment benefit. Following an interview in connection with his prospects of employment the Department of Social Security was informed that it was the opinion of the adjudication officer at the Department of Employment that the claimant was not available for employment. Payment of income support was suspended and the claimant was advised that he could not be paid full income support because the question of his availability and entitlement had still to be decided by an adjudication officer. On the same day the adjudication officer decided that income support should be disallowed. On appeal the tribunal upheld the adjudication officer's decision. The claimant appealed to the Commissioner.

Held that:

where an adjudication officer is proceeding under regulation 64(1) of the Adjudication Regulations he must say so. A claimant is entitled to know what rights of appeal he has and what case he has to meet (para. 8);

while a tribunal may accept the facts submitted by the adjudication officer when they are not in dispute and nothing turns upon them, where the issue is whether or not the claimant is to be treated as available for employment it is plainly incumbent on the tribunal to set out the facts on which they base their decision and to give adequate, albeit perhaps brief, reasons for that decision (para. 10);

a submission by an adjudication officer not directly concerned with the matter in issue cannot be evidence (R(SB) 10/86 affirmed) (para. 11).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the unanimous decision of the Bedford social security appeal tribunal given on 2 October 1989 is erroneous in point of law. Accordingly I set it aside and remit the matter for rehearing.

The claimant appeals with leave of the Commissioner against the decision of the tribunal confirming the decision of the adjudication officer, issued on 26 May 1989, that the claimant was not entitled to income support from 3 May 1989 because he was not to be treated as being available for employment.

At the material time the claimant was 28 years old, single and living at his parents' house. He had been in receipt of supplementary benefit and, latterly, income support since leaving school and had never had a full-time job. It is stated in the summary of facts on form AT2 that on 18 May 1989 the Department of Social Security was notified that the adjudication officer at the Department of Employment was of the opinion the claimant was not available for work as from 3 May 1989. The summary continues:

"5.6 On 26 May 1989 the income support adjudication officer decided, in the light of the opinion of the adjudication officer at the Department of Employment that income support should be disallowed. Accordingly benefit was last paid up to 3 May 1989."

The claimant appealed, saying that he had been "seeking work". The adjudication officer made a submission in justification of his decision of 26 May 1989, to which was attached a contribution from the unemployment benefit adjudication officer submitting that the claimant had failed to prove he was available for employment on 3 May 1989. On 2 October 1989 the tribunal confirmed the adjudication officer's decision. By way of findings of fact the tribunal "accepted the facts as set out in the adjudication officer's submission" and they gave as their reasons that:

"The tribunal was satisfied that the regulations had been correctly applied."

The claimant appealed and, in the submission dated 14 February 1990, the principal contention of the adjudication officer now concerned with the case is that "no substantive decision was made", therefore the tribunal "should not have determined the appeal" and consequently their decision was erroneous in law. That submission is based on the fact that on 26 May 1989 the claimant was "advised . . . that a doubt had arisen about his availability for work, and that a decision would be made as to whether he was available . . .". It is submitted that regulation 64 of the Social Security (Adjudication) Regulations 1986 (as amended) [SI 1986 No. 2218] provides for a question to be determined by the adjudication officer on the assumption that the outcome will be adverse to the claimant and that, in such a case, the tribunal shall not consider an appeal until the substantive question has been dealt with.

Regulation 64 of the Adjudication Regulations provides that:

"Income support and social fund questions not immediately determinable

- (1) Where on consideration of a claim or question relating to income support or to payment of maternity expenses from the Social Fund under Part III of the 1986 Act it appears to an adjudication officer that the claimant's entitlement to, or the rate or amount of, such benefit depends on the determination of any of the questions mentioned in paragraph (3), and he is satisfied that the question cannot be immediately determined, he shall proceed to determine the claim or question on the assumption that the determination of the question so mentioned will be adverse to the claimant.

(2) Without prejudice to the power of an adjudication officer to refer any claim or question to an appeal tribunal under section 99(2) of the 1975 Act, and notwithstanding the provisions of section 100 of that Act, on an appeal to an appeal tribunal in any case where the adjudication officer has applied the provisions of paragraph (1) in respect of any of the questions mentioned in para. (3), the tribunal shall not determine the last mentioned question until it has been determined by an adjudication officer."

The seven questions referred to in paragraph (1) and (2) are set out in paragraph (3), including, at sub-paragraph (c), "whether . . . a person is to be treated as available for employment and whether . . . he is not to be so treated". And the advice of 26 May 1989 referred to by the adjudication officer is plainly the letter of that date to the claimant from the manager of the local office which, in so far as it is relevant, reads:

"I am writing to let you know that we cannot pay you full income support from 4 May 1989.

Before you qualify for income support you have to be available for work. We cannot pay you full income support as a question has arisen about your availability for work.

This question will be decided by an adjudication officer. The adjudication officer will look at the law and decide whether or not you are available for work.

If the adjudication officer decides that you are available for work we can review the decision not to pay you income support.

If this happens we will pay you any arrears that you are due."

On the same day as that letter the adjudication officer issued the decision against which the claimant appealed to the tribunal. On the face of it, it seems a final, or at any rate, a substantive decision, and indeed, paragraph 5.6 of the adjudication officer's summary of facts, which I quote in paragraph 3 above, would appear to confirm that view. Certainly neither the decision nor the submission contain any hint that the decision was one made pursuant to regulation 64, and that point was not taken before the tribunal, whose note of evidence records the non-attendance of the claimant and that the adjudication officer "had no further evidence". The first time regulation 64 of the Adjudication Regulations is mentioned is in the submission of the adjudication officer now concerned with the case, where it is baldly asserted that no substantive decision was made and therefore the provisions of that regulation apply.

Regulation 64(1) of the Adjudication Regulations provides that, where it appears to an adjudication officer that a claimant's entitlement depends upon the determination of a question (or questions) which he is satisfied cannot be immediately determined, he shall assume that the answer to such question or questions is adverse to the claimant. In those circumstances regulation 64(2) will preclude the tribunal from dealing with any appeal. It seems to me axiomatic that where an adjudication officer is proceeding under regulation 64(l) he must say so, otherwise in many cases it will be impossible for a claimant (and, on appeal, a tribunal) to know whether or not the decision is a substantive one. At the very least the point that the decision is not a substantive one and accordingly not susceptible to appeal must be made clear by as soon as an appeal is launched. A claimant is entitled to know what rights of appeal he has and what case, if any, he has to meet.

In the instant appeal it is true that the letter of 26 May 1989 says that the question of the claimant's availability for work "will be decided by an adjudication officer"; but that does not mean that the decision cannot be made the same day, and that that is what in fact occurred is, in my view, a perfectly reasonable inference to be drawn from paragraph 5.6 of the summary of facts, particularly when paragraph 5.5 states that the Department of Social Security had been notified on 18 May 1989 eight days before the letter and decision of the opinion of the adjudication officer of the Department of Employment. In my judgment the decision of 26 May 1989 is a substantive one and the claimant's appeal to the tribunal was accordingly valid.

It follows that the tribunal had power to determine the appeal and I can deal with it. In those circumstances the adjudication officer now concerned with the case makes an alternative submission that the tribunal erred in law in failing to make sufficient findings of fact or give adequate reasons for their decision, as required by regulation 25(2)(b) of the Adjudication Regulations. That submission is in my view well founded. I have set out in full in paragraph 4 the tribunal's findings of fact and reasons, and they are clearly inadequate to enable the claimant to discern why his appeal failed. While there may be no objection to a tribunal accepting the facts submitted by the adjudication officer when they are not in dispute and nothing turns upon them, where, as here, the only issue is whether or not the claimant is to be treated as available for employment, there it is plainly incumbent on the tribunal to set out the facts on which they base their decision and to give adequate, albeit perhaps brief, reasons for that decision.

I find that the tribunal's decision is erroneous in point of law. I set it aside and remit the matter for rehearing when, I have no doubt, it would be in the claimant's interests to attend. The new tribunal will hear the appeal afresh; they will evaluate the evidence before them and, in that connection, as particulars of the matters relied on by the adjudication officer are contained solely in paragraph 2 of the Department of Employment's adjudication officer's submission, the new tribunal will wish to bear in mind that an adjudication officer's submission is not evidence (see R(SB) 10/86). A fortiori a submission by an adjudication officer not directly concerned with the matter in issue (in the present case, the adjudication officer of the Department of Employment), but whose submission is prayed in aid by the adjudication officer whose decision is challenged, cannot be evidence. Strict rules of evidence do not apply in this jurisdiction but nevertheless the principles of natural justice require that a claimant should have the opportunity, as the Commissioner put it in para. 14 of R(A) 7/89, "to controvert . . . adverse material" which, moreover, in that case as in the present one, consisted of hearsay.

The claimant's appeal is allowed.

Date: 22 May 1990 (signed) Mr. M. H. Johnson

Commissioner