UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CJSA_3139_2001 (05 July 2002)

 


CJSA/3139/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal is unsuccessful. I set aside the decision of the Bristol appeal tribunal dated 20 November 2000 but I substitute for the tribunal's decision my own decision which is to the same effect. The claimant's entitlement to jobseeker's allowance ceased from 3 August 2000.

REASONS

2. Regulations 23 to 30 of the Jobseeker's Allowance Regulations 1996 (which are made under section 8 of the Jobseekers Act 1995) make provision for claimants of jobseeker's allowance to attend Jobcentres and provide information and evidence in connection with their claims. Before 11 September 2000 and so far as is material to this appeal, regulations 23 to 27 provided –

"23. A claimant shall attend at such place and at such time as the Secretary of State may specify by a notice in writing given or sent to the claimant.

24. ….

(6) A claimant shall, if the Secretary of State requires him to do so, provide a signed declaration to the effect that –

(a) since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph he has either been available for employment or satisfied the circumstances to be treated as available for employment, save as he has otherwise notified the Secretary of State,

(b) since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph he has either been actively seeking employment to the extent necessary to give him his best prospects of securing employment or he has satisfied the circumstances to be treated as actively seeking employment, save as he has otherwise notified the Secretary of State, and

(c) since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph there has been no change to his circumstances which might affect his entitlement to a jobseeker's allowance or the amount of such an allowance, save as he has notified the Secretary of State.

….

(10) Where, pursuant to paragraph (6), a claimant is required to provide a signed declaration he shall provide it on the day on which he is required to attend in accordance with a notice under regulation 23, if so required by the Secretary of State, or on such other day as the Secretary of State may require.

25. (1) Subject to regulation 27, entitlement to a jobseeker's allowance shall cease in the following circumstances –

(a) if the claimant fails to attend on the day specified in a notice under regulation 23, other than a notice requiring attendance under an employment programme or a training scheme;

(b) if –

(i) the claimant attends on the day specified in a notice under regulation 23 but fails to attend at the time specified in that notice (other than a notice requiring attendance under an employment programme or a training scheme), and the Secretary of State has informed the claimant in writing that a failure to attend, on the next occasion on which he is required to attend, at the time specified in such a notice may result in his entitlement to a jobseeker's allowance ceasing, and

(ii) he fails to attend at the time specified in such a notice on the next occasion;

(c) if the claimant was required to provide a signed declaration as referred to in regulation 24(6) and he fails to provide it on the day on which he ought to do so in accordance with regulation 24(10).

….

26. Entitlement to a jobseeker's allowance shall cease in accordance with regulation 25 on whichever is the earlier of –

(a) the day after the last day in respect of which the claimant has provided information or evidence which shows that he continues to be entitled to a jobseeker's allowance,

(b) if regulation 25(1)(a) or (b) applies, the day on which he was required to attend, and

(c) if regulation 25(1)(c) applies, the day on which he ought to have provided the signed declaration,

provided that it shall not cease earlier than the day after he last attended in compliance with a notice under regulation 23.

27. (1) Entitlement to a jobseeker's allowance shall not cease if the claimant shows, before the end of the fifth working day after the day on which he failed to comply with a notice under regulation 23 or to provide a signed declaration in accordance with regulation 24, that he had good cause for the failure.

…."

Regulation 28 makes provision as to what is to be taken into account when considering "good cause" for failing to comply with a notice under regulation 23, regulation 29 makes provision as to what is to be taken into account when considering "good cause" for failing to sign a declaration under regulation 24(6) and regulation 30 deems there to be "good cause" in some circumstances. I need not set those provisions out.

3. The claimant in this case had been in receipt of jobseeker's allowance since 13 March 2000. He attended a Jobcentre at fortnightly intervals to make a signed declaration within the terms of regulation 24(6). He was due to attend on Thursday, 3 August 2000 at 3.20 pm. No declaration was signed on that day. On Tuesday, 8 August 2000, the claimant attended the Jobcentre. He "signed on" and also signed a "Late Attendance Stencil – Miscellaneous" in which it was recorded that his reasons for "failing to provide a signed declaration" on 3 August were:

"Attended Thur 3 Aug 2000. Waited to be called. Did not check with Enquiries. Came in Tues 8 Aug 2000 to sign on."

Two days letter he was asked for some further information, as to the time he attended, as to the reason why he did not wait to be called and as to the reason why he did not check with Enquiries before leaving. He completed the form the next day, saying that he had attended the Jobcentre between 3.15 pm and 4.00 pm, that he had checked the job display boards and "maybe" had not heard his name called, that he had waited and then decided that he was not going to be called and that he then left. He also said that he was not aware that he had to check with Enquiries in order to sign on, that they closed at 4.00 pm and that they were too busy and he did not wish to wait any longer. That document was received by the Jobcentre on 14 August 2000. On 15 August 2000, the Secretary of State decided that the claimant's entitlement to jobseeker's allowance ceased on 3 August 2000 because he did not provide a signed declaration on that day and had not shown good cause for the failure to do so. Reference was made to regulations 24(6) and (10), 25(1)(c), 27 and 29. Benefit was duly paid up to 2 August 2000.

4. The claimant appealed, repeating that he had attended the Jobcentre on 3 August 2000 and stating that his reason for not "singing on" was that no-one had said "can I help you ?". The tribunal was provided with a copy of the decision but the Secretary of State's written submission to the tribunal misrepresented it, telling the tribunal that the decision was that the claimant was not entitled to jobseeker's allowance because he had failed to attend the Jobcentre. Reference was made to regulation 23 as well as regulations 24, 25, 26, 27 and 29. The tribunal was told that the claimant had been given written notice that he was to attend the Jobcentre on 3 August 2000 but no documentary evidence was provided in support of that assertion. Nor was the tribunal provided with a copy of either of the two documents in which the claimant had put his case to the Secretary of State. The submission summarised the legislation in some detail and then concluded –

"5.9 I submit, therefore, that the questions for determination by the tribunal are as follows:

(1) Did [the claimant] fail to attend at the time specified in a notice under regulation 23 ?

I submit that [the claimant] should have attended the Jobcentre to sign-on in 03 08 00. He failed to sign-on on that date.

(2) Has [the claimant] shown good cause for failing to comply with the requirement to provide a signed declaration ?

The Employment Service Jobcentre has decided that [the claimant] did not show good cause for his failure to provide a signed declaration on 03 08 00. Please see their decision dated 15 08 00 attached to this submission.

5.10 I submit, therefore, that in accordance with regulations 25(1)(c) and 26(c) to the Jobseeker's Allowance Regulations, [the claimant's] claim should cease from 03 08 00, the day he ought to have provided a signed declaration."

5. The appeal was considered at a "paper hearing" and was dismissed. In his statement of reasons, the tribunal found –

"….

3. The Appellant did not attend the Jobcentre on [3 August 2000] and did not sign a declaration.

….

9. The tribunal finds as a fact that the Appellant was given notice in accordance with regulation 23 that he was to attend at the Jobcentre on the 3^rd August 2000 and to sign the necessary declaration. The Tribunal further finds as a fact that the Appellant failed to sign such a declaration.

10. Even if the Tribunal accepted that the Appellant had physically entered on the Jobcentre premises on the date specified, that in itself is not sufficient. He must, in order to satisfy the regulations, identify himself and sign the necessary declaration.

11. If a person is not able to attend on the appointed day, then he must within 5 working days show that he had good cause for failing to attend on the appointed day. Therefore, the Appellant was required before 5^th [sic] August [to show] that he had good cause for not attending and signing the declaration on 3^rd August. The Appellant seemed to be saying that the reason for his not signing the declaration was that he was not approached by a member of the Jobcentre staff to say 'Can I help you ?' In the tribunal's view, this does not amount to good cause for failing to sign on. In the tribunal's view, it is incumbent on the Appellant to make the necessary inquiries of the Jobcentre staff to ensure that his presence is known and that he is there to sign the necessary declaration."

The claimant now appeals with my leave, which I granted only because it seemed to me that the provisions of regulations 23 and 24 had been confused in the submission to the tribunal and by the tribunal themselves.

6. The claimant has expanded on the facts of his case. He says that he attended the Jobcentre on 3 August 2000 but, having failed to hear his name being called at the time for his appointment, he was kept waiting until 4 pm when the clerk left the desk and that he then tried to contact the enquiry desk but they "seemed to be closing for the day" and so he left the Jobcentre. His case is that he did attend the Jobcentre and that he had good cause for not signing the declaration he should have signed and that he showed the good cause within the five working days allowed. The Secretary of State has supplied copies of the declaration signed by the claimant each fortnight, of a duplicate booklet ES 40 which includes a request to the claimant to "attend to sign your declaration" every second week from Thursday 27 April 2000 and of the other documents that I have mentioned were not before the tribunal.
7. The Secretary of State's current representative submits that the tribunal did err in their approach but nonetheless reached the correct conclusion. She argues that the case should have been determined under regulation 25(1)(a), rather than regulation 25(1)(c), because, she submits, the claimant did not "attend" the Jobcentre, even on his own account. Regulation 25(1)(c), she submits, is for use when a person is a "postal signer" or has attended a Jobcentre but has stormed off after an argument. Regulation 25(1)(a) applies where a person should have attended, but has failed to attend, a Jobcentre and, she submits, "attend" in this context implies not just that the claimant should go to the building but also that he should identify himself to the staff. The last part of the submission she derives from a suggestion I made when I granted leave to appeal. At that time, I had not seen the booklet ES 40, which seems to me to amount both to a requirement to attend and a requirement to sign a declaration. I had in mind that the requirement to sign a declaration might not be made until the claimant had attended the office and, indeed, that may still be the case on some appointments. In those circumstances, physical attendance without identifying oneself to the staff would defeat the purpose of the requirement to attend. However, it is not necessary to determine this case on that basis because, if the booklet ES 40 amounted both to a requirement to attend and a requirement to sign a declaration, sub-paragraphs (a) and (c) of regulation 25(1) both produce the same result, having regard to regulation 26(b) and (c).
8. I accept that the submission to the tribunal and the tribunal's decision were both erroneous in point of law because they did not draw a distinction between a failure to attend and a failure to sign a declaration and proceeded on the basis that the question of good cause for failing to sign the declaration was relevant to the alleged failure to attend. I set aside the tribunal's decision on that ground. The facts of the case are clear and so I can substitute my own decision for that of the tribunal. Rather than considering this case as one of a failure to attend the Jobcentre, although it may well be such a case, I prefer to consider it in relation to the question of the claimant's failure to sign the declaration, which was the approach taken by the Secretary of State on 15 August 2000 and was the alternative approach of the tribunal.
9. Due to the way the case was put to the tribunal by the Secretary of State and due to a typing error in the tribunal's decision, it is not surprising that the claimant appears to consider that one of the issues, if not the only issue, in this case is whether his explanation as to why he had not signed the signed the declaration was given within the five working days allowed. However, I understand the Secretary of State to accept that the explanation was given within the five days but to argue that the explanation did not show "good cause". With that I agree, even though I accept the claimant's account of what happened. Regulation 25(1)(c) applies only if a claimant fails to sign a declaration at some time on the relevant day. That is because regulation 24(10) does not impose a duty to sign the declaration at any particular time of the day. Had this claimant spoken to staff at 4 pm and been told that it was too late for them to arrange for him to sign the declaration, I might have found him to have had good cause for not signing it on that day. He obviously intended to sign the declaration and not hearing his name called at the appropriate time may have been excusable. It would have been relevant to my approach that late attendance does not result in a claim ceasing unless there has been a previous warning (see regulation 25(1)(b). However, the claimant knew he had to attend for the purpose of signing the declaration and it was his leaving that prevented the signing, rather than any action on the part of the Jobcentre staff. Like the tribunal, I do not consider that the claimant was entitled to assume he could not sign the declaration on that day. Accordingly, I give the decision set out in paragraph 1 above.
10. I record that the submission to the tribunal very properly informed the tribunal that a new claim form had been issued to the claimant but that no decision had been made on any new claim. It is always open to a claimant to make a fresh claim when entitlement ceases under regulation 25. It was helpful of the Secretary of State's representative to make it clear to the tribunal and to the claimant that a new claim was possible but that entitlement under any new claim was not in issue before the tribunal, who was concerned only with the termination of the previous award.

(signed) MARK ROWLAND

Commissioner

5 July 2002