R(JSA) 3/01
(Secretary of State for Social Security v. David)

Mr. H. Levenson	CJSA/397/1998
19.3.99 
CA (Brown, Thorpe and Parker LJJ)
15.12.00
Availability for employment - claimant detained in police custody - whether a reasonable restriction “in the light of his physical or mental condition”
The claimant was receiving jobseeker’s allowance. On 4 August 1997 he was taken into police custody where he was detained for 42 hours. He was released without charge. The adjudication officer decided that, owing to the detention, the claimant was not available for employment in the week 
31 July 1997 to 6 August 1997, nor could he be treated as so available. Accordingly, the claimant was not entitled to jobseeker’s allowance for that week. The tribunal held partially in the claimant’s favour that he was only disentitled to jobseeker’s allowance for two days, and so was entitled to five sevenths of his weekly benefit.
The adjudication officer appealed to the Commissioner. The Commissioner decided the appeal in the claimant’s favour. Section 1(3) of the Jobseeker’s Allowance Act 1995 provides that jobseeker’s allowance is payable in respect of a week, and that there was no provision (other than by exceptions which were not relevant in this case) to award the benefit for parts of a week. The claimant’s detention in police custody fell within regulation 13(3) of the Jobseeker’s Allowance Regulations 1996 which provides that “A person may restrict his availability in any way providing that the restrictions are reasonable in the light of his physical or mental condition.” Here, the claimant’s physical condition was that he was in police custody and, as such, was not free either in practical or legal terms to leave, so that any restriction upon his availability was not only reasonable, but also inevitable. 
The Secretary of State appealed to the Court of Appeal.
Held, allowing the appeal, that:
1.	the reference in regulation 13(3) to the claimant’s “physical or mental condition” is confined to some personal disability;
2.	the provision applies prospectively only and specifically with regard to the completion of the jobseeker’s agreement;
3.	(obiter) it is not easy to see why a claimant should lose his weekly jobseeker’s allowance merely by being detained by the police when during such detention he must be presumed innocent. There is a lacuna in the legislation with regard to unforeseen circumstances. The matters are sufficiently troubling to suggest that the Secretary of State ought properly to consider amending the scheme to grant some measure of discretion to adjudication officers to deal with cases like this where the claimant is unavailable for work through unforeseen and excusable circumstances.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	This appeal is brought by the adjudication officer against the decision made by the social security appeal tribunal on 6 November 1997.  In accordance with the provisions of section 23(7)(b) of the Social Security Administration Act 1992 I set aside the decision made by the social security appeal tribunal. I substitute my own  decision.  This is to the effect that the claimant continues to be treated as available to be employed in the week from 31 July 1997 to 6 August 1997.  Although this appeal has been brought by the adjudication officer, I have resolved the issue entirely in the claimant’s favour.
2.	The claimant was born on 13 November 1976.  From 22 August 1996 he claimed and received unemployment benefit, which in due course became transformed into an award of jobseeker’s allowance.  On 26 February 1997 he entered into a jobseeker’s agreement.  He placed no restrictions on the days or hours for which he was available for work.  There was no problem about his entitlement to the allowance or about his conduct except for the matter with which this appeal is concerned.  The relevant benefit week ended on 6 August 1997.
3.	The claimant was taken into police custody in the early hours of 4 August 1997 and was released after about 42 hours.  Neither the adjudication officer nor the tribunal nor I have any further information or details.  However, for the purposes of my decision I assume that the claimant was not free to leave police custody until he was actually released.  The unfairness of what followed can best be understood by assuming that the claimant was in fact innocent of any wrongdoing and that he was not charged, although he might have been in custody following a lawful arrest.  The adjudication officer decided that because the claimant was in police custody for those two days, he was not available and cannot be treated as available to be employed in the week 31 July 1997 to 6 August 1997.  Accordingly, although this was not stated in the decision, he was not entitled to his jobseeker’s allowance for that week.  The adjudication officer’s decision adds the comment that “prior to going in he did not complete a varied jobseeker’s agreement”.  I observe that it is unlikely that police officers about to take a person into custody would agree to wait before so doing while the person about to be taken into custody arranged to agree a variation to his jobseeker’s agreement.  
4.	Section 1(3) of the Jobseeker’s Allowance Act 1995 provides that a jobseeker’s allowance is payable in respect of a week.  This is subject to exceptions which do not apply in this case.  However, on 13 August 1997 the claimant appealed to the social security appeal tribunal and on 6 November 1997 the tribunal decided that the claimant was available for employment throughout the relevant week except on the two days during which he was in police custody.  On 9 February 1998 the adjudication officer applied for leave to appeal to the social security Commissioner against the decision of the tribunal.  On 19 March 1998 the chairman of the tribunal granted leave to appeal.  Although I do not accept the basis on which the adjudication officer’s case has been argued, either before the tribunal or before the Commissioner, it is clear that there is no provision (other than for the exceptions which do not apply in this case) to award jobseeker’s allowance for parts of the week or to find that a claimant was available for employment during part of a week but not during the rest of the week.  The claimant is either available for employment during a particular week or he is not so available.  Curiously, the tribunal decision notice records “the appeal is refused.  However the tribunal have reviewed the adjudication officer’s decision and substitute for it ...”.  I would have said that the tribunal allowed rather than refused the appeal, but in any event I set aside its decision as having been made in error of law.  Since the basic facts are not in dispute I deem it expedient to substitute my own decision.  
5.	Subject to other conditions, which are not in dispute in this case, by virtue of section 1(2)(a) of the Jobseeker’s Allowance Act 1995 the claimant is entitled to a jobseeker’s allowance if he is available for employment.  Relevant provisions of the Jobseeker’s Allowance Regulations 1996 are as follows:
“5. (4)	Where in accordance with regulation 7, 13 or 17 a person is only available for employment at certain times, he is not required to be able to take up employment at a time at which he is not available, but he must be willing and able to take up employment immediately he is available.
...
6.-(1)	In order to be regarded as available for employment, a person must be willing and able to take up employment of at least 40 hours per week, unless he has restricted his availability in accordance with paragraph (3) or (4) of regulation 13 or paragraph (2) of regulation 17 or two or more of those provisions.
(2)	In order to be regarded as available for employment, a person must be willing and able to take up employment of less than 40 hours per week but not for a greater number of hours per week than the number for which he is available in accordance with paragraph (3) or (4) of regulation 13 or paragraph (2) of regulation 17 or two or more of those provisions.
...
7.-(1)	Except as provided in regulation 13 and in regulation 17(2), a person may not restrict the total number of hours for which he is available for employment to less than 40 hours in any week.
(2)	A person may restrict the total number of hours for which he is available for employment in any week to 40 hours or more providing
(a)	the times at which he is available to take up employment (his “pattern of availability”) are such as to afford him reasonable prospects of securing employment;
(b)	his pattern of availability is recorded in his jobseeker’s agreement and any variation in that pattern are recorded in a varied agreement; and
(c)	his prospects of securing employment are not reduced considerably by the restriction imposed by his pattern of availability.
...
13.-(1)	In any week a person may restrict his availability for employment in the following ways, if the circumstances set out apply.
...
(3)	A person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition.”
6.	It does not seem to be disputed that, in accordance with regulation 5(4) if the claimant were not to be required to be able to take up employment during the two days when he was in police custody, he was willing and able to take up employment immediately he was available.  Regulation 6 is also subject to the provisions of parts of regulation 13.  The adjudication officer has relied on regulation 7 but, in fact, apart from the period when he was in custody, the claimant has not restricted the total number of hours for which he is available for employment to less than or to more than 40 hours in each week.  Regulation 13(3) provides that a person may restrict his availability in any way  providing the restrictions are reasonable in the light of his physical or mental condition.  Although the adjudication officer assumes that such restrictions must be specified in the jobseeker’s agreement it seems to me that in the very particular circumstances of this case, that is not necessary.  The claimant’s physical condition was such that he was in police custody, presumably was not free either in practical terms or in legal terms to leave, in the circumstances any restriction on his availability was not only reasonable but inevitable, and he is not to be treated as unavailable for work simply because he was in police custody for those two days.
7.	Of course, the claimant has not “restricted” his availability in any way at all, his availability has been restricted by others.  However, the wording of the legislation does not seem to distinguish between these two situations.  Nevertheless, for the above reasons this appeal by the claimant succeeds.

Date: 19 March 1999	(signed) Mr. H. Levenson
	Commissioner

The Secretary of State appealed to the Court of Appeal. The decision of the Court of appeal follows.

DECISION OF THE COURT OF APPEAL

Miss N. Lieven (instructed by Legal Dept. of Department of Social Security, London WC2) for the Appellant (Mrs. K. Olley attended to receive Judgment).
The Respondent did not attend and was not represented.

Judgment (reserved)

LORD JUSTICE SIMON BROWN:
1.	In October 1996 unemployment benefit was replaced by jobseeker’s allowance, an allowance which by s. 1(3) of the Jobseekers Act 1995 (the Act) is payable in respect of a week.
2.	On 26 February 1997 the respondent (Mr. David) entered into a jobseeker’s agreement in which he placed no restrictions on the days or hours during which he was available for work.
3.	In the early hours of 4 August 1997 Mr. David was taken into police custody and detained for 42 hours.   So far as is known he was never charged.
4.	The adjudication officer determined that he could not on that account be considered available for work during the week 31 July to 6 August 1997 and so was not entitled to jobseeker’s allowance for that week.
5.	Mr. David appealed to the social security appeal tribunal which, by decision dated 6 November 1997, held partially in his favour that he was only disentitled to jobseeker’s allowance for two days and so was entitled to five-sevenths of his weekly benefit.
6.	The adjudication officer appealed to the social security Commissioner, pointing out that there was no power to award jobseeker’s allowance for part of a week only and contending, therefore, that Mr. David was disentitled to benefit for the whole week. The appeal was dealt with by written representations. On 19 March 1999 the Commissioner decided that Mr. David was not to be treated as unavailable for work simply because he was in police custody for two days and accordingly held him entitled to the whole week’s allowance.
7.	Before us now is the Secretary of State’s appeal against that determination.   To understand the basis both of the Commissioner’s decision and of the appeal it is necessary first to indicate something of the jobseeker’s allowance scheme.
8.	By s. 1(2) of the Act the allowance is payable if the claimant amongst other things:
“(a)	is available for employment;
 (b)	has entered into a jobseeker’s agreement which remains in force;
 (c)	is actively seeking employment;   ... ”

9.	S. 6(1) of the Act provides that “ ... a person is available for employment if he is willing and able to take up immediately any employed earner’s employment”, but that is subject to regulations made pursuant to s. 6(2) which enable a person to restrict his availability for employment in any week in certain ways and circumstances, and regulations made pursuant to s. 6(4) which prescribe circumstances in which a person is or is not to be treated as available for employment.
10.	The Jobseeker’s Allowance Regulations 1996 (the Regulations) provide by regulation 6(1) that in order to be regarded as available for employment, a person must be willing and able to take up employment for at least 40 hours per week, unless he has restricted his availability in accordance with, so far as presently material, regulation 13(3) or (4).   
11.	Regulation 13(3) provides:
“A person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition.”

12.	This, as will appear, is the regulation by which the Commissioner came to decide this case. Neither side had mentioned it.
13.	Regulation 13(4) allows a person with caring responsibilities to restrict his availability to less than forty hours in any week in certain circumstances.
14.	Regulation 7(2) provides:
“A person may restrict the total number of hours for which he is available for employment in any week to forty hours or more providing
(a)	the times at which he is available to take up employment (his ‘pattern of availability’) are such as to afford him reasonable prospects of securing employment;
(b)	his pattern of availability is recorded in his jobseeker’s agreement and any variations in that pattern are recorded in a varied agreement and
(c)	his prospects of securing employment are not reduced considerably by the restriction imposed by his pattern of availability.”

15.	Regulation 14 specifies in considerable detail the circumstances in which a person is to be treated as available.   They include (and I set these out to illustrate the particularity of this legislation):
“(c)	if he is temporarily absent from Great Britain because he is taking a member of his family who is a child or young person abroad for treatment, for a maximum of 8 weeks;
(d)	if he is engaged in the manning or launching of a lifeboat or in the performance of duty as a part-time member of a fire brigade or engaged during an emergency in duties for the benefit of others;
(e)	if he is a member of a couple and is looking after a member of his family who is a child while the other member is temporarily absent from the United Kingdom, for a maximum of 8 weeks;
(f)	if he is following an Open University course and is attending, as a requirement of that course, a residential course, for a maximum of one week per course;
(g)	if he is temporarily looking after a child full-time because the person who normally looks after the child is ill or temporarily absent from home or the person is looking after a member of the family who is ill, for a maximum of 8 weeks”

16.	A person is also to be treated as available for employment under regulation 14 (so long as he is not disentitled under regulation 15):
“(a)	if there is a death or serious illness of a close relative or close friend of his;
(b)	if there is a domestic emergency affecting him or a close relative or close friend of his;
(c)	if there is a funeral of a close relative or close friend of his;
(d)	if he has caring responsibilities and the person being cared for has died;   for the time required to deal with the emergency or other circumstance and for a maximum of one week on the occurrence of any of the circumstances set out in sub-paragraphs (a) to (d), or a combination of those circumstances, and on no more than 4 such periods in any period of 12 months.”

17.	Regulation 15 provides for those circumstances in which a person is not to be regarded as available for employment. These, I note, include certain full-time students and prisoners on temporary release.
18.	Against that legislative background, let me return to the circumstances of the present case and set out the determinative part of the Commissioner’s decision by which he found for the claimant:
“Regulation 13(3) provides that a person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition. Although the adjudication officer assumes that such restrictions must be specified in the jobseeker’s agreement, it seems to me that in the very particular circumstances of this case, that is not necessary.   The claimant’s physical condition was such that he was in police custody, presumably was not free either in practical terms or in legal terms to leave, in the circumstances any restriction on his availability was not only reasonable but inevitable, and he is not to be treated as unavailable for work simply because he was in police custody for those two days.  Of course, the claimant has not “restricted” his availability in any way at all, his availability has been restricted by others. However, the wording of the legislation does not seem to distinguish between these two situations.”

19.	In short, the Commissioner took the view, first that the expression in regulation 13(3) “physical or mental condition” is apt to refer not only to some disability on the claimant’s part but also to any extraneous physical constraints that may be placed upon him;  and second that it is unnecessary under this regulation for the claimant himself to have invoked his “condition” so as to justify restricting his availability in advance of the week in question;  rather the claimant’s non-availability can retrospectively be overlooked under this provision.  
20.	I have to say that to my mind both limbs of this construction are impossible.    The reference to the claimant’s “physical or mental condition” seems to me clearly confined to some personal disability. And it seems to me no less clear that the provision applies prospectively only and specifically with regard to the completion of the jobseeker’s agreement.  That this is so is surely demonstrated also by regulation 55 which deals with short periods of sickness and provides:
“55(1)	...   A person who- 
(a)	has been awarded a jobseeker’s allowance ...  and
(b)	proves to the satisfaction of the Adjudication Officer that he is unable to work on account of some specific disease or disablement;  and
(c)	but for his disease or disablement would satisfy the requirements for entitlement to a jobseeker’s allowance other than those specified in s. 1(2)(a), (c) and (f) (available for and actively seeking employment, and capable of work), shall be treated for a period of not more than two weeks as capable of work ...”

21.	On the Commissioner’s approach there would be no need for regulation 55:  such a person could instead invoke regulation 13(3) and, notwithstanding his jobseeker’s agreement, assert that his availability was restricted by his temporary physical incapacity. 
22.	It follows that in my judgment the Commissioner was wrong in his decision and that, so far from resolving the appeal in favour of the claimant (who had not appealed), he should have decided it in favour of the adjudication officer (who had).
23.	I cannot, however, simply leave the matter there.    In the first place it is, I think, desirable to sound a note of caution to Commissioners:  when dealing with appeals on written representations, they should not decide the case by reference to points of law raised solely by themselves without first giving the parties an opportunity to comment.   Of course Commissioners are right to raise points of their own initiative, but equally obviously they should alert the parties to them.    Ordinarily, I am told, they are assiduous in doing so but here, regrettably, that course was not taken.  
24.	Secondly, however, I think it right to touch on certain troubling features of the jobseeker’s allowance scheme which this appeal has brought to light.  
25.	The first of these relates to the jobseeker’s agreement itself. S. 6 of the Act, as noted, requires the claimant to be willing and able to take up employment “immediately”. That “immediately” means within a very short space of time indeed is clear not only from the word itself but also from regulation 5 which provides for exceptions to this requirement in the case of those with caring responsibilities or engaged in voluntary work (who need only be willing and able to take up employment on 48 hours notice) and certain others engaged in providing a service (who get 24 hours notice). No doubt the requirement for immediate availability allows the claimant time to wash, dress and have his breakfast, but strictly it would seem inconsistent with, say, a claimant’s stay overnight with a friend or relative, or attendance at a weekend cricket match, or even an evening at the cinema (unless perhaps he had left a contact number and had not travelled far).
26.	In these circumstances, claimants ought clearly to be wary of entering into an agreement which offers unrestricted availability throughout the entire week, day and night, weekdays and weekends.
27.	The second concern arises even more directly from the circumstances of the present appeal. It is not altogether easy to see why a claimant should lose his weekly jobseeker’s allowance merely through being detained by the police. During such detention he must surely be presumed innocent; indeed Mr. David, it appears, was never even charged. The case might be one of mistaken identity. The detention here, of course, was for 42 hours. But say it had been for only twelve hours or six hours. It might have been during the day; it might have been during the night. Or the claimant might have been kidnapped and detained by a criminal gang. Or stuck in a train for eight hours. These things happen. Yet under the scheme as it stands the allowance for the week would be forfeit. Miss Lieven for the Secretary of State accepts, indeed asserts, as much. There is, in short, a lacuna in the legislation with regard to unforeseen circumstances. No doubt adjudication officers and, on appeal, tribunals (now the unified appeal tribunal) are generally sensible and realistic about such cases. But this is a field in which claimants are periodically required to make declarations of availability (attended by criminal sanctions) and where strictly no element of discretion is conferred upon those administering the scheme.
28.	These matters seem to me sufficiently troubling to suggest that the Secretary of State ought properly to consider amending the scheme to grant some measure of discretion to adjudication officers to deal with cases like this where a claimant is unavailable for work through unforeseen and excusable circumstances. In the meantime one may hope perhaps for a solution by way of ex gratia payments. No doubt cases like this are few and far between but to my mind they ought not simply to be swept under the carpet.
29.	For the reasons already given I would allow this appeal. I would express the hope, however, that the respondent will not suffer financially as a result.

30.	Lord Justice Thorpe:
I agree with the result and with My Lord’s further observations.

31.	Lord Justice jonathan Parker:
I also agree.

Order: Appeal Allowed. (This order does not form part of approved judgment.)