UK Social Security and Child Support Commissioners' Decisions

THE SOCIAL SECURITY COMMISSIONER

Commissioner's Case No: CSJSA/261/98

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM THE SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW

DEPUTY COMMISSIONER: J N WRIGHT OC

Appellant: Respondent:

Tribunal: Tribunal Case No:

AMBjsa26198


 


Commissioner's Case No: CSJSA/261/98

DECISION OF SOCIAL SECURITY CONMISSIONER

1. This appeal succeeds. My decision is that the decision of the social security appeal tribunal given at Aberdeen on 17 September 1997 is erroneous upon a point of law. I set it aside. I refer the case to a differently constituted tribunal for determination afresh.
2. This appeal arises out of a decision of the adjudication officer to review the award of Jobseeker's Allowance to the claimant and to decide that the allowance was not payable for a period of 26 weeks because the claimant had been notified by an employment officer of a job vacancy and had failed to apply for that vacancy. The question which the appeal tribunal considered, and decided against the claimant, was whether she had good cause for that failure. The claimant appeals with leave of the Commissioner.
3. The basic facts are clear and were not in dispute. The claimant had been in receipt of the allowance since October 1996. She had described her usual work as "desktop publishing, office admin, secretarial." On 13 March 1997 she was sent notification of a full-time, temporary vacancy as an office worker with a company in Stornoway. She received that notification. She did not apply for the job. There was no permitted relevant restriction on her availability for employment. There was quite a lot of dispute about the course of communications between the service and the claimant in the weeks following 13 March, but there is no suggestion that she did not receive notification of the vacancy or that she in fact applied for the job. By the time of the tribunal, the claimant had indicated more than once that her reason for not applying was that the company in Stornoway was some 40 miles from her home and she had transport difficulties. There were differing versions of the availability of public transport. The applicant had, however, completed a Jobseeker's application form on 22 February 1997, indicating that she was looking for work in Uig and Stornoway, that she was licensed to drive a car, and that she had her own transport. In correspondence before the tribunal hearing, the claimant advised that her car was in fact over 11 years old, its exhaust system had failed on 22 February 1997 and she was not able to use it on a day to day basis to travel 80 miles per day. She made the point that it was unreasonable to expect her continually to keep that resource available during a period of unemployment when she was not in receipt of money to enable her to maintain the car.
4. The tribunal had to consider the appeal on the basis only of documents, neither any presenting officer nor the claimant being present. Having made a number of findings of fact, the tribunal gave reasons for deciding to refuse the appeal and uphold the decision of the adjudication officer. Put shortly, they clearly did not accept the applicant's statement that the exhaust system of the car had failed on the very day on which she had completed the form in relation to the allowance, and they referred to her willingness at that time to consider employment in Stornoway and her failure to contact the Job Centre to advise of difficulties which she was facing in relation to travel. The tribunal did not consider that she had established good cause for her failure. There was no evidence that she had taken steps, which the tribunal considered would have been reasonable, for example to inquire of the potential employers as to whether any other employees traveled from Aird (where the claimant lives) or whether any other arrangements could be made. They took the view that she had simply ignored the notification of the vacancy and subsequent correspondence. The tribunal referred to the law as follows:


 


Commissioner's Case No: CSJSA/261/98

"Having regard to the above findings in fact, the tribunal considered that the adjudication officer's decision is justified in law under the terms of section 19(9) of the Jobseekers Act 1995. Regulation 72(6)(a) of the Jobseekers Allowance Regulations provides that a person is not to be regarded as having good cause for any act or omission for the purposes of section 19(5) and 19(6) on the basis inter alia in relation to the time it took or would normally take for the person to travel from his home to place of employment."

5. The claimant submitted a number of grounds of appeal summarized as follows:

the tribunal failed to notice that the job was probably as an office junior and therefore the claimant was over-qualified for it;

(ii) the job was only temporary which was not what she was looking for;

(iii) there were on-going problems with the mail to and from her address, and the tribunal failed to give consideration to that;

(iv) her car is very unreliable; and

(v) the bus takes an average of 1% hours, which is unrealistic in this day and age for an office worker to travel, and the tribunal had failed to take that into account."

6. The adjudication officer supports the appeal, although on limited grounds. Having pointed out (correctly, in my view) that much of the appeal correspondence related to the issues of communication, the Adjudication Officer submitted that the tribunal were entitled to reach the conclusions which they did in relation to the explanation about the exhaust system and also about the absence of efforts to find out about other travel arrangements. However, he submitted that the decision was fatally flawed on the matter of construction of regulation 72(6) of the Jobseeker's Allowance Regulations. I propose to examine the statutory rules and the relevant regulations. Put shortly, the Adjudication Officer submits that the tribunal materially misquoted the regulation as it relates to journey time. The tribunal was not precluded from considering journey time if that was not less than one hour either way. He also submitted that the tribunal had failed to specify the precise ground upon which the adjudication officer was entitled to review the original award.
7. In my view, the tribunal was clearly entitled on the information available to it to reach the factual views which it recorded in relation to the claimant's explanation for her failure to apply for the job. However, when the statute and the regulations, in particular regulation 72, are considered, it is clear that the tribunal has mis-directed itself on the traveling issue and has failed adequately to consider that issue.
8. Section 19 of the Jobseekers Act 1995 sets out a number of situations in which the allowance is not payable even although the basic conditions for entitlement have been satisfied. This corresponds, although it enlarges upon, the grounds for temporary disqualification under unemployment benefit. Certain new situations in which there can be disqualification - refusal or failure to carry out reasonable directions by the Employment


 


Commissioner's Case No: CSJSA/261/98

Service, and failings in relation to taking part in training schemes or employment programme - are set out in section 19(5), and attract mandatory disqualification for 2 weeks, or, if repeated within a 12 month period, 4 weeks. Section 19(6) broadly reintroduces the familiar grounds for disqualification under the former rules - loss of employment through misconduct, voluntarily leaving employment, etc. In such cases, the period of "disqualification" is to be determined by the adjudication officer, to be at least one week but not more than 26 weeks. The present cases arises under section 19(6)(c), which arises where the claimant:

"Has, without good cause, after a situation in any employment has been notified to him by an employment officer as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him."

9. "Good cause", in relation to sanctions under the Jobseeker's Allowance scheme, is the subject of extensive provision in regulation 72 of the Regulations of 1996. The structure of this regulation requires to be fully understood. It does not apply identically in relation to all the types of conduct referred to in section 19, but in relation to section 19(6)(c), the regulation first sets out a number of matters which are to be taken into account in determining whether a person has good cause (72(2), qualified slightly by (3)). It then sets out circumstances in which, and periods for which, a person is to be regarded as having good cause (72(4), and (5) and (5A)). It then sets out situations in which a person is not to be regarded as having good cause (72(6), slightly qualified by (7)).
10. The matter of traveling time is referred to at two different parts of this Regulation 72; 72(2)(e) prescribes as one of the matters which is to be taken into account:

"The time it took, or would normally take, for the person to travel from his home to the place of the employment ...... and back to his home by a route and means appropriate to his circumstances and to the employment....."

That, however, is qualified by the provision in 72(6)(b), that a person is not to be regarded as having good cause if, and to the extent that, the reason for the failure to apply for the job relates to:

"The time it took, or would normally take, for the person to travel from his home to the place of the employment ....... and back to his home where that time was or is normally less than one hour either way by a route and means appropriate to his circumstances and to the employment ...... unless, in view of the health of the person or any caring responsibilities of his, that time was or is unreasonable."

Thus, traveling time, and also the means of transport, are to be taken account unless the time is normally less than one hour, and even in the latter case it may be taken into account in two particular circumstances.

11. The tribunal was unfortunately not referred to the terms of section 72(2)(e), and can be seen to have missed the effect of section 72(6)(b) (which they wrongly referred to as 72(6)(a)). They have thus failed to consider, as they require to do, whether the normal journey time was one hour or more and, if it was, to take that into account in reaching their


 


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decision on "good cause". They have instead, erroneously, directed themselves that this was a matter which could not be taken into account.

12. Having made the findings which they did, the tribunal would no doubt have been entitled to approach the question of travelling time on the basis of the claimant travelling in her own car. As the adjudication officer has pointed out, however, time is not the only issue. Consideration has to be given also to the appropriate means of transport. Moreover, section 72(2)(f) brings into the issue the question of travelling expenses. That paragraph provides another matter which is to be taken into account:

"The expenses which were, or would be, necessarily and exclusively incurred by the person for the purposes of the employment ..... together with any expenses of travelling to and from the place of the employment ...... by a route and means appropriate to his circumstances, if those expenses did, or would, represent an unreasonably high proportion of:

(i) in the case of employment, the remuneration which it is reasonable to expect that he would derive from that employment."

For completeness, there is a further qualification of that paragraph in regulation 72(3):

"For the purposes of paragraph 2(f), in considering whether expenses did, or would, represent an unreasonably high proportion of remuneration or income, the principal shall apply that the greater the 'level of remuneration or income the higher the proportion thereof which it is reasonable should be represented by expenses."

Here, the claimant did raise an issue in relation to the expense of maintaining her car and, although the tribunal has entirely appropriately raised the possibility of sharing with another car-user or something of that kind, there was an issue here which also needed to be considered.

13. In my opinion, therefore, agreeing with the adjudication officer, the decision of the tribunal is erroneous as a result of its mis-direction in relation to the provisions of regulation 72 relating to "good cause". The decision must therefore be set aside.
14. I can deal quite shortly with the claimant's grounds of appeal. I reject (i) and (ii) on the basis that there was no material before the tribunal on either of these issues: the claimant had never suggested that she may have been over-qualified for the job; and, although it is true that the vacancy was for a temporary job, the claimant had not suggested this as a reason for not applying. As regards (iii), as I have already mentioned, the dispute about whether communications - both ways - were actually received is not directly relevant once it is clear that the claimant did in fact receive notification of the vacancy. In any event, the tribunal clearly did give some consideration to this issue. As regards (iv) and (v), while the tribunal clearly considered one aspect of the position in relation to the claimant's own car, their overall consideration of means of transport, along with travelling time, was inadequate as a result of the mis-direction which I have already identified.


 


Commissioner's Case No: CSJSA/261/98

15. I should also deal with the adjudication officer's submission that the tribunal erred in failing to identify the grounds upon which the adjudication officer was entitled to review the award. I agree, and hold the tribunal to be in error in this respect, although I also agree with the adjudication officer that in this particular case the error is purely technical. It is clearly a part of the Jobseeker's Allowance scheme that claimants may be "disqualified" for a period, under the provisions of section 19, not just by having their initial claims refused on one of the section 19 grounds, but also by conduct indicating, to a greater or lesser degree, that the unemployment is voluntary, after an award has been made and they are in receipt of the allowance. Clearly, some of the conduct referred to in section 19(5) and 19(6) may arise while the claimant is in receipt of the allowance. In my opinion, the identification of such conduct clearly amounts to a "relevant change of circumstances" under section 25(1)(b) of the Social Security Administration Act 1992, the change being that as a result of the claimant's conduct the allowance is not payable for a period. The fact that section 25(1) has been amended so as now to include one specific reference at section 25(1)(e) to another provision - section 6(6) or 7(7) - of the Jobseeker's Act does not in my view call into question the application of section 25(1)(b). In the present case, at the time of making the original decision, the adjudication officer referred to regulation 56A of the Social Security (Adjudication) Regulations 1995. In my opinion, that regulation refers primarily to the situation where a claim cannot immediately be determined because (amongst other possible difficulties narrated) there is a question arising under section 19. An obvious example would be where a claim is made following the loss of employment and there is an issue as to whether the employment was lost through mis-conduct, which may take some time to resolve. The adjudication officer is then required to determine the claim on the assumption that section 19 does not apply, and of course provision then requires to be made for review if the final determination of the issue is different. There may be wider grounds for suggesting that regulation 56A does not in any event provide an independent ground of review. At all events, however, in my view it does not give any right of review in the present case. (For completeness, it may be mentioned that regulation 56A does make some provision as to when a determination on review arising under section 19 is to have effect, but that is a different question.)
16. In considering "good cause", and applying its mind to the provisions of regulation 72, the new tribunal will require to consider whether any circumstances exist in which any of the provisions of regulation 72 provides good cause is established. Assuming no such circumstances exist, the tribunal will have to consider what matters to take into account. It will have to put out of its mind, and leave out of account, the matters set out in regulation 72(6) (subject to 72(7)). If the travelling time by the route and means appropriate to the claimant's circumstances and to the employment would normally be less than one hour either way, that must be left out of account except in the particular circumstances set out in regulation 72(6)(b). The tribunal must then consider, to the extent which they arise, the matters set out in regulation 72(2), remembering, however, that that is not an exhaustive list. All factors relevant to the particular case must be taken into account. I agree with the adjudication officer that the mere fact that travelling time exceeds one hour does not automatically give the claimant good cause. It is merely a matter which is to be taken into account. Travelling time is the time taken to reach the place of employment and does not include time between the arrival of, say, public transport and the start of work or vice versa at the end of the day, but such further periods of time away from home may also be relevant in a particular case. The tribunal has also to take into account the question of whether travelling


 


Commissioner's Case No: CSJSA/261/98

expenses represent an unreasonably high proportion of the remuneration reasonably to be expected from the employment. The fact that a job is temporary does not of itself give good cause, but, again, may be taken into account if the tribunal considers it relevant in the particular case. -

17. The adjudication officer also submits that it is relevant to take into account the fact that a person who lives in a remote location will usually have a long journey to and from work. I agree that this may be relevant but would stress that it should be applied with care having regard to the particular circumstances of the case and should certainly not be used as a general consideration in effect calling into question the relevance of travelling time and indeed waiting time in cases where claimants live in remote locations. The underlying question is whether the failure to take employment is voluntary or genuinely based on a good reason. A city dweller may have reason, based upon confidence that he can obtain employment nearer to home, to turn down a job involving very substantial travelling time. Conversely, a country dweller, with little prospect of employment in the immediate locality, may be thought not to have good reason to turn down a job which involves travelling. These things, however, must be a matter of degree to be judged reasonably in the particular circumstances, and in either case the actual extent of travelling time and difficulty must be considered. (Subject, of course, to the provisions in regulation 72 considered above).
18. The final matter to which I should draw the new tribunal's attention is the question of the period of "disqualification" in the event of the claimant failing to establish good cause. The adjudication officer who took the original decision that the allowance was not payable for a period gave reasons for fixing that period at 26 weeks, which is the maximum under regulation 19(3). The appellant has not made anything of this matter; the tribunal did not consider it; and it was not referred to in either the grounds of appeal or the adjudication officer's original submission to the Commissioner. Because the question had not been considered in this appeal and also because the "disqualification" provisions in relation to Jobseeker's Allowance are not completely identical to and do not have exactly the same consequences as the provisions which formerly applied in relation to unemployment benefits I directed further submissions on this matter.
19. In her submission on this, the appellant reiterates her reasons for not applying for the job vacancy; and, as regards the approach to be taken, is content for the approach used in unemployment benefit cases to be used in hers. While continuing to maintain that she had `good cause', she suggests that if disqualification arises she would "go along with" disqualification for 2 or 4 weeks under section 19(5).
20. The adjudication officer has compared section 19(6)(c) of the 1995 Act with section 28(l)(b) of the Social Security Contributions and Benefits Act 1992, and finds them essentially similar. He considers the purpose of the provisions remains essentially the same. He acknowledges that the consequences of disqualification are not the same, and in particular a period of disqualification will "eat into" the maximum entitlement of 182 days. He submits that this is not directly relevant but makes it even more important that all the circumstances should be properly taken into account. He helpfully considers what circumstances in the present case, both in favour of and against the appellant, are relevant. He does not consider that the particular, and relatively short, periods of disqualification under section 19(5), provide any guidance to the determination of the period of sanction under section 19(6).


 


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21. Since the tribunal has to consider the whole matter afresh, it is clear that the length of the "disqualification" should be considered by the tribunal even although it is not raised by the appellant. It should also be pointed out that following the original decision, but before the tribunal, the claimant gave more information in connection with her reason for failing to apply for the job. The tribunal should have considered the whole circumstances at the time of the hearing, fixed an appropriate period, and explained its reasons for fixing that period.
22. The new tribunal will, if it decides the case against the claimant, require to consider all the circumstances which are before them. By contrast with mis-conduct under section 19(5), ie refusals or failures to carry out "job-seekers' directions" or failures in respect of taking up training places, etc, in respect of which the period of disqualification is fixed at two weeks, or four weeks for a second offence within 12 months, in the case of conduct falling under section 19(6), the adjudication officer has a wide discretion to fix a period between one week and 26 weeks. The new tribunal is referred to regulation 70, which requires the adjudication officer to take into account all the circumstances of the case and, in particular, a number of particular circumstances which may arise. These include, under regulation 70(a), the situation where employment would have lasted less than 26 weeks, in which case the length of time which it was likely to have lasted has to be taken into account. In the present case, the job was said to be temporary, but without any specific indication of the length of time. That is a relevant circumstance which may be taken into account even although it is not established that the job would last for less than 26 weeks. I agree that the guidance from earlier decisions, in particular R(U) 8/74 and R(U) 4/87, to the effect that this is a completely unfettered discretion but that it must be exercised judicially, remains substantially the position. It is not right to approach this question from the point of view that the claimant has to justify any reduction from the maximum period. The correct approach is simply to consider what, in all the circumstances, is an appropriate period, on the basis that the claimant's conduct has contributed to his or her need to claim benefit and thus causes loss to public funds. It would not be right for me to lay down an exhaustive list of the circumstances relevant in this case. The temporary nature of the job, and the long and possibly arduous journey between the appellant's home and the workplace (and the waiting time involved), should be considered, as also should the difficulty and expense involved for the appellant in running her car. The fact that people who live in remote locations will tend to have long and difficult journeys to work, together with the appellant's original statement that she was available to work in Stornoway, should also be considered. The extent of the appellant's efforts to find out about the job vacancy and overcome travelling difficulties would also be relevant. There may be other relevant circumstances. Any reliable indication to the effect that the appellant would not have got the job even if she had applied for it, so that her conduct has not in fact caused loss to public funds, would also be relevant. At all events, the new tribunal should give proper consideration to whether or not the maximum period of 26 weeks fixed by the adjudication officer was appropriate and indeed what the appropriate period should have been.
23. Finally, there is the question of the relevance (if any) of the shorter, prescribed, periods of "disqualification" under section 19(5). These are clearly not directly relevant, since they refer to other specific situations. The much wider range, and discretion available in the application, of periods of "disqualification" under section 19(6) appears to reflect the wide range of situations to which section 19(6) applies. These situations range from


 


Commissioner's Case No: CSJSA/261/98

dismissal for misconduct to failure to apply for a job or failure to avail oneself of "a reasonable opportunity of employment", and there must be widely differing degrees of seriousness of such situations. Although the 2 or 4 week periods laid down in relation to section 19(5) indicate the response to the types of conduct set out in that sub-section and thus give some indication of the view taken of situations which might be seen as slightly analogous to a failure to apply for a job vacancy, the duty of the adjudication officer or the appeal tribunal is to weigh this "misconduct" up in the scale of one to 26 weeks.

24. I must stress that these matters related to the period of "disqualification" only arise if the tribunal decides that the appellant did not have good cause for her failure to apply for the job.
25. I hold that the decision of the appeal tribunal was erroneous in law. I set it aside and refer the case to a freshly constituted tribunal for determination afresh.

(signed)

J N WRIGHT QC Commissioner Date: 7 December 1998