UK Social Security and Child Support Commissioners' Decisions

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Cite as: [1998] UKSSCSC CSU_182_1997

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CSU/182/97

The Social Security and Child Support Commissioners

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This claimant's appeal succeeds. I hold the decision of the Falkirk social security appeal tribunal dated 25 October 1996 to be erroneous in point of law and accordingly set it aside. Because I consider it expedient so to do, I make the findings indicated below in addition to those made by the tribunal and in light of them give the decision which I consider appropriate to the case.

That decision is to allow the appeal from an adjudication officer's decision issued on 15 April 1996 holding the claimant not entitled to unemployment benefit from 9 April 1996 and in its place to substitute a decision holding the claimant entitled to unemployment benefit for 9 April 1996 and subsequent days. I reserve to the adjudication officer power to translate that decision into practical effect and, in addition, power to review, revise including terminate, that decision in light of subsequent events. For that purpose the case now stands remitted to the adjudication officer for further procedure in the light of my decision.

The case came before me for hearing as directed by a nominated office. At it the claimant appeared unrepresented. The adjudication officer was represented by Mr William Neilson of the Office of the Solicitor in Scotland to the Department of Social Security. I am indebted to the claimant for confirming, and to a minor extent elaborating, the evidence already in the papers and which had been before the tribunal. I am indebted to Mr Neilson for his assistance and submissions.

The basic facts were and are not in dispute. The claimant retired early from a senior position with the Inland Revenue. As a result he became bound by the "Rules on the Acceptance of Outside Appointments by Crown Servants". An extract thereof appears in the papers from documents 36 to 38 inclusive. The claimant was below grade 3 and so only the restrictions in paragraph 2.1 applied to him. In October 1995 he registered as unemployed and sought unemployment benefit. An adjudication officer granted the application. The papers are silent, and Mr Neilson was unable to enlighten me, as to whether that was an open or closed award. After six months the claimant attended an interview the results of which are recorded on documents 20 to 31 of the bundle. An adjudication officer then held that the claimant had imposed restrictions on his availability for employment and so issued the decision carried by the claimant to the tribunal, namely that he was not entitled to unemployment benefit for 9 April 1996. That was the date of the interview. I assume, in favour of the Department, that the decision in question was not on a review and revisal but on a fresh application following an award which had expired under the then in force regulation 17 of the Social Security (Claims and Payments) Regulations 1987. The original of the decision is not with the papers, nor has a proper copy been made available. That is an unfortunate departure from the normal and correct practice in the presentation of cases. However, in this case, in the event, nothing turns on the exact terms of the decision.

The restrictions imposed which the adjudication officer originally founded upon related to the type of employment and the wage which the claimant was willing to accept - document 30 of the bundle. That ground, however, was early departed from and the case has really proceeded upon the basis that the claimant could not satisfy section 25A(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992. That provision requires that:-

" ... a day shall not be treated in relation to any person as a day of unemployment unless on that day -

(ii) he is, or is deemed in accordance with the regulations to be, available to be employed in employed earners employment ... "

The essence of the case was that the claimant was found on the particular day, 9 April 1996, not to be available to be employed. That was based upon the claimant's response to a question about being able to start work immediately on the interview form at document 22 of the bundle. The reason therefore stated was that he would:-

"Require to obtain permission from Inland Revenue Head Office but [that] should be more or less a formality and given fairly quickly."

That reflected a similar answer on the original application form at document 11 of the bundle which appears not to have caused any problem in respect of the award of benefit. That declaration was, of course, a reflection of the Rules. On further questioning from the Department, after the appeal had been lodged, the claimant explained that to obtain permission:-

"In most circumstances a phone call would suffice but were I required to make written application on the prescribed form this could probably take, allowing for postal time, two to three weeks."

In a letter dated 10 September 1996, also before the tribunal, the claimant elaborated upon the Rules and explained that Rule 2.1 would apply to him thus:-

"In many circumstances therefore a phone call would have sufficed giving an assurance that none of the conditions applied, eg had I been offered the job with Boots or Falkirk College a formal written request would probably be unnecessary as I had had no previous dealings or connection with these firms."

That gives the essence of the application to the claimant of the only Rule relevant to this case. He then goes on to explain that written application would probably only have been required if a particular offer of employment had come from a chartered accountant firm with which he had formerly had dealings in his official capacity.

The tribunal in their findings and reasons failed to note, so far as I can make out, that the basic impediment to being available for employment was a requirement first to make a phone call. Only in the event of a particular offer falling within a specific type would a formal application have been required. The tribunal concentrated entirely upon the latter and proceeded upon the basis that the claimant would have required to send in an application form on every occasion. That would have put him in the position of someone, as Mr Neilson suggested, with a restrictive covenant, from which release would have been required on any particular occasion. Whether, of course, such a covenant or indeed the Rules, would have been enforceable, and should have been regarded by the adjudication authorities as enforceable, were they to be regarded as so extreme, was a matter touched on in submission to me but about which I need not come to a view. The tribunal clearly misinterpreted the evidence before them. Either that or they rejected, without explanation, part of the claimant's evidence. That seems unlikely. But either way they erred in law.

There is a second error in the tribunal decision, of a somewhat technical nature. The adjudication officer, whose direction was taken to the tribunal, had imposed a disqualification for benefit for some three months following the date of that decision. Contrary to R(U)1/78 no ground for that was stated. The tribunal should therefore have queried the extent at least of that disallowance. Instead they repeated the disqualification, again without explaining why they were making a forward disallowance for such a period. But the real problem is that the power to make a forward disallowance had, some two weeks before their decision, been deleted. Regulation 18(3) of the Claims and Payments Regulations disappeared on 7 October 1996. Whilst I appreciate they were only trying to repeat the adjudication officer's decision they had no power to appear themselves to impose the forward disallowance although by then its duration had elapsed. It would have been sufficient had they simply refused the appeal.

For the foregoing reasons the tribunal decision cannot stand. However, as all the relevant evidence is in the open, and as rehearsed in paragraph 6 above, I can most conveniently give the decision appropriate to the case myself without requiring further delay whilst the case returns to the tribunal. The adjudication officer suggested a rehearing in order that proper and sufficient findings could have been made about the situation given the basic requirement only for a phone call. Section 25A(1)(a)(ii) requires that an individual must be available for employment on any particular day in respect of which he is seeking to have it held as a day of unemployment and so giving entitlement to benefit. The general rule has always been that upon any particular day a claimant must be willing and able to accept, generally at once, any offer or suitable employment. Since, here, the only condition precedent was the requirement to be able to make a phone call I have no doubt that this claimant deserved, as the original adjudication officer had held, a finding that on the days in question starting with 9 April 1996 he was indeed so "available". I am reinforced in my conclusion by the decision of Mr Commissioner Howell QC in CU/28/94, as referred to by the adjudication officer now concerned. If a particular offer had required the lodging of a more formal application then questions might have arisen as to whether that was "suitable" employment or whether the claimant was "refusing" it and further refusing it with or without good reason. But these questions have nothing to do with that before me.

I am happy to have been able to come to the above decision given the claimant's ground of appeal, which raised no proper issue of law I have to say, namely that a Crown servant should not be prevent from receiving unemployment benefit in a situation in which any other citizen would have been entitled to it because of a rule imposed to avoid possible conflicts of interests or embarrassment to a Government Department.

Finally, I should note that Mr Neilson persuaded me not to consider regulation 7B(2) of the Social Security (Unemployment Etc.,) Regulations 1983. That regulation deals with restrictions on availability for employment, but after an adjournment Mr Neilson submitted that 7B(1) applied only where the individual claimant imposed the restrictions himself. Here, he suggested, there was not a restriction proper but something more in the nature of a condition precedent for all offers imposed by a former employer. Accordingly, the relieving provision in paragraph (2) could not apply. But, since the appeal is decided on other grounds, this notation is purely obiter.

For the reasons earlier given the appeal is allowed.

(Signed)

W. M. Walker QC
Commissioner

3 March 1998