UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CIS_1010_2003 (05 December 2003)

 


CIS/1010/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant's appeal against the decision of the Lincoln appeal tribunal dated 13 November 2002.

REASONS

2. I held an oral hearing of this appeal. The claimant appeared in person and the Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.
3. The claimant was in receipt of jobseeker's allowance. In early December 2001, he notified the Jobcentre that he would be on jury service in January 2002. He was advised that he needed to claim income support for the period of his jury service and an officer at the Jobcentre went so far as to arrange for an income support claim form to be sent to the claimant. However, the claimant had been sent by Lincoln Crown Court a copy of "You and your Jury Service", which contained the following information.

"Loss of benefit

If you are receiving a benefit, you should show the Certificate of Loss of Benefit, which has been sent with this booklet, to the unemployment benefit office or social security office which pays your benefit. They will tell you how jury service affects your claim.

If you will lose benefit because you are doing jury service, they will fill in the Certificate and give it back to you. Bring the Certificate with you when you come to the court on your first day. You will need the Certificate to claim back from the court the benefit you have lost."

On the strength of that information, the claimant wrote on 14 December 2001 to the Jobcentre who administered his jobseeker's allowance, saying that he did not need to claim income support and asking them to fill in the certificate he had been sent. He also said that he would not be available for work from 14 January 2002.

4. The Jobcentre did not complete the certificate but in January the claimant discovered that jobseeker's allowance had not been paid into his bank account. He visited the Jobcentre and was told that jobseeker's allowance had been "suspended" while he was on jury service. He completed a new claim for jobseeker's allowance and was sent another income support claim form which he completed and returned so that it was received by the relevant office on 21 March 2002. He had in fact been on jury service only on five days in January, spread over two weeks. Jobseeker's allowance had been paid by girocheque in respect of the other days in the relevant weeks but was refused in respect of the days of jury service because the claimant had not been available for work. His claim for income support in respect of those days was rejected because it was late. He appealed to the tribunal against the decision refusing income support, although he still maintained that it was unreasonable to expect him to fill in the extremely lengthy claim form, in order to give information already disclosed for the purposes of his jobseeker's allowance claim, just to obtain payment for five days while he had been doing jury service. His appeal was dismissed.
5. The claimant now appeals against the tribunal's decision with the leave of Mr Commissioner Howell QC. When granting leave, Mr Howell referred to the absurdity of the requirement that a claimant on jury service should have to make a fresh claim for benefit. In his written submission, the Secretary of State's representative submits that the question of the claimant's entitlement to jobseeker's allowance is outside the scope of this appeal. So, indeed, it is, but I do not think Mr Howell was suggesting that jobseeker's allowance had been wrongly refused in respect of the days in question, given the statutory scheme that exists. His concern was that the statutory scheme appeared to him to be absurd and that the problem appeared to be compounded by the information provided in the leaflet issued by the court. Personally, I can see arguments in favour of disentitling claimants from jobseeker's allowance while they are doing jury service, but there may be scope for further thought as to how the loss should be made good. The lost benefit can be replaced either through a payment by the court or, where the claimant does not have adequate other means, through a claim for income support. Where there is a choice, it is not entirely clear that the Department for Work and Pensions and the Department for Constitutional Affairs have a common understanding as to what a claimant is expected to do.
6. In this case, the Jobcentre appears to have taken the view that the claimant should claim income support. If that is what is generally expected of jurors, it might be worth considering whether, given the short length of time for which the vast majority of people sit as jurors, those in receipt of income-based jobseeker's allowance should be enabled to claim income support on a very much simplified claim form for the period of their jury service. So far as the information issued by the Court Service is concerned, I accept Ms Haywood's submission that the leaflet issued by Lincoln Crown Court did not actually tell the claimant not to claim income support. On the other hand, it also did not say that the court would not refund lost jobseeker's allowance if the claimant could instead have recouped the loss through a claim for income support. Thus, it may be still be open to the claimant in this case to insist on the Jobcentre giving him a certificate that he has lost jobseeker's allowance so that he may seek payment from the court, notwithstanding his failure to claim income support within the prescribed time. If the Court Service is not prepared to refund the loss of jobseeker's allowance or any other benefit in a case where the juror could have recouped the loss through a claim for income support, I would suggest that their leaflet should be amended to make that clear, because the claimant's understanding that it was not necessary for him to claim income support and that he was entitled instead to claim a refund from the court in respect of his lost jobseeker's allowance was not unreasonable given the way the leaflet is currently worded. If the form is amended, the anachronistic reference to an "unemployment benefit office" could also be updated, unemployment benefit having been replaced by jobseeker's allowance as long ago as 1996. (I have seen a more recent version of the leaflet than the one issued to the claimant in this case but no material change has been made.) If the Court Service does not require claimants of jobseeker's allowance to claim income support while on jury service, Jobcentres should be given appropriate instructions.
7. I cannot award the claimant income support on this appeal because the tribunal could have reached no decision other than the one he did. The provisions of section 1 of the Social Security Administration Act 1992 and the Social Security (Claims and Payments) Regulations 1987 are very clear. There can be no entitlement to income support unless a claim has been made in an acceptable form within the prescribed time. Regulation 19(4) and (5) of the 1987 Regulations permits a claim to be backdated in some circumstances, including those where the Department for Work and Pensions has misled the claimant. However, insofar as entitlement to income support is concerned, the Department's information was accurate in this particular case. If any information was misleading, it was that given in the leaflet issued by the court but that leaflet did not tell the claimant not to claim income support or that any such claim would not succeed. The tribunal was therefore bound to find that the claimant was not entitled to income support because his claim was late.
8. The claimant complains that the tribunal had prejudged the case and was biased because, when the claimant objected of the lack of opportunity to question a Departmental representative about the case, as no presenting officer was present, the chairman said that he would answer questions for the Department. He also says that the chairman did not allow him to say all he wished to say. The first allegation shows the difficult position in which tribunals are placed by the failure of the Department to send presenting officers to hearings. I suspect that the chairman was merely making sure that the claimant had the opportunity of fully understanding the Department's case, which would have been clear to the chairman from the documents, so that the claimant could properly put his opposing case. It is clear that he did not manage to convey that impression to the claimant. However, because the tribunal's ultimate conclusion was the only one open to him, it is unnecessary for me to consider exactly what happened at the hearing. Whatever happened, this appeal must be dismissed.

(Signed) MARK ROWLAND

Commissioner

5 December 2003