UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CJSA_2082_2002 (20 June 2003)

 


CJSA/2082/2002

CJSA/5415/2002

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeals against the decision of the Cheltenham appeal tribunal dated 11 October 2001 (on file CJSA/2082/02) and "Decision 1" and "Decision 3" of the Southampton appeal tribunal dated 17 September 2001 (on file CJSA/5415/02). I set aside those decisions and substitute the following decisions:

(a). The sanction imposed in respect of the period from 21 November 2000 to 21 May 2001 is set aside.

(b) The claimant is entitled to jobseeker's allowance from 23 December 2000 to 8 January 2001.

(c) The claimant is entitled to jobseeker's allowance from 28 March 2001 to 26 April 2001, subject to the effect of any sanctions in force in respect of that period.

If there is any dispute over the implementation of these decisions, it should be referred to me or another Commissioner.

REASONS

2. Disputes between the claimant, who lives in Southampton, and those administering jobseeker's allowance led to eleven sanctions being imposed on the claimant within a period of three and a half months and to countless other decisions. The first relevant decision concerned the imposition of a sanction for the period from 21 November 2000 to 21 May 2001 on the ground that the claimant had failed to apply for a job vacancy. The other five decisions were in respect of various claims made by the claimant during that period. A decision-maker very sensibly made a single submission to the tribunal covering those five appeals, with the result that they were all heard together. Unfortunately the appeal against the imposition of the sanction was administered entirely separately and, the claimant not having sought an oral hearing, it was listed for a "paper hearing" in Cheltenham on 11 October 2001. The reason for the delay was that, although the decision was made in November 2000, the claimant was not formally notified of the decision until July 2001, after he had lodged the five other appeals. Meanwhile, those other five appeals were listed for hearing in Southampton on 17 September 2001. The claimant, who again did not seek an oral hearing, sent in a submission and asked for a postponement or adjournment so that, among other things, those five appeals could be heard with the case listed in Cheltenham. The Southampton appeal tribunal refused the application and dismissed the appeals. The Cheltenham appeal tribunal subsequently dismissed the other appeal. The claimant sought leave to appeal in all six cases. I refused leave to appeal against three of the decisions of the Southampton appeal tribunal but granted leave in the three appeals now before me.
3. The appeal against the "sanction" decision of the Cheltenham appeal tribunal raises two issues. Firstly, in making his submission to the Southampton appeal tribunal asking for the adjournment, the claimant sent a number of documents that were plainly relevant to the appeal before the Cheltenham appeal tribunal but were not forwarded to that tribunal by the clerk. It might be argued that the claimant should have ensured that they were sent separately to the Cheltenham appeal tribunal but the reality is that both tribunals were administered from the regional office in Cardiff from which correspondence emanated in the name of the "Clerk to the Tribunal", with no distinction being drawn between one tribunal and another, and, as the claimant had marked the documents with the reference number of the appeal pending in Cheltenham, he may reasonably have expected the documents to be passed on if his application for an adjournment was refused. Furthermore, for reasons I shall explain below, the Southampton appeal tribunal ought to have adjourned at least one of the appeals before them and such an adjournment would probably have ensured that the documents were before the Cheltenham appeal tribunal. However, it is unnecessary for me to decide whether or not there was really a breach of the rules of natural justice, because the Secretary of State supports the appeal on another ground.
4. There was no substantial dispute as to the basic facts of the case before the tribunal. The failure to apply for a job vacancy was really a refusal to provide a photograph to go with the application form. The Secretary of State submits that a failure properly to complete an application may amount to a failure to make the application at all and cites CJSA/2692/99. In this case, the employer's job application form had a space for a photograph. The employment officer took the view that a photograph was usually required but the claimant disputed that assertion and said that an application would be accepted without a photograph. As the Secretary of State now points out, the employment officer could have forwarded the application as it was to the employer to see whether it was rejected for lack of a photograph. Instead, the employment officer did not forward the application. The Secretary of State therefore submits that it was the act of the employment officer rather than the act of the claimant that caused the failure to make the application and that the claimant's appeal should therefore have been allowed by the tribunal. This submission really depends on the Secretary of State's concession that, notwithstanding the design of the claim form, the tribunal's finding that the employer required a photograph was not supported by the evidence before them. I am prepared to accept that concession, although the real issue may be whether any such a requirement was reasonable at a stage before the applicant had even been asked to attend for an interview. Accordingly, I allow the appeal against the sanction.
5. The first of the appeals before the Southampton appeal tribunal was partly the result of a bureaucratic mix-up but it also reveals a lacuna in the legislation. Following the imposition of the sanction, there was a short period when the claimant had no potential entitlement to jobseeker's allowance. However, on 25 January 2001, he wrote to claim for the period from 23 December 2000 to 8 January 2001. He completed a form JSA5 but it was decided that a new claim should be made on form JSA1. The claimant returned the front page of JSA1, saying that he had already completed such a form in respect of another claim and it was unnecessary to do so again because his details were the same. The Secretary of State accepted that the conditions for making a late claim were satisfied but decided that no benefit was payable due to the sanction that had been imposed in November without the claimant being formally noticed. Unfortunately, and apparently because the claimant had not fully completed the form JSA1, the decision actually issued to the claimant said that the reason that the claimant was not entitled to jobseeker's allowance was that the conditions for making a late claim had not been satisfied. The claimant appealed and it appears that it was this appeal that revealed the need to issue a proper decision about the sanction against which the claimant could appeal. The Secretary of State naturally conceded that the conditions for a late claim were satisfied. It therefore followed that success on this appeal depended on success on the appeal against the sanction, which was pending before the Cheltenham appeal tribunal when this case came before the Southampton appeal tribunal.
6. The presenting officer informed the Southampton appeal tribunal that, if they dismissed the appeal before them and the sanction appeal was successful, the Southampton appeal tribunal's decision would be reversed so as to give effect to the successful appeal. On that understanding that the claimant would not be prejudiced, the tribunal dismissed the appeal before them. However, while the presenting officer's assurance may have reflected what would have happened in practice, it is now accepted by the Secretary of State that it did not accurately reflect the law.
7. In the absence of any appeal against it, the Secretary of State's decision in respect of the period from 23 December 2000 to 8 January 2001 could have been revised under regulation 3(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, once the Secretary of State's decision had been upheld by the Southampton appeal tribunal, no such revision was possible. That is because the effective decision was then the decision of the tribunal and the Secretary of State has no power under section 9 of the Social Security Act 1998 to revise a decision of a tribunal. The Secretary of State does have power under section 10 of that Act to supersede a decision of a tribunal but none of the grounds of supersession available under regulation 6(2) of the 1999 Regulations was applicable in the situation that would have arisen had the sanction appeal been successful. Accordingly, given that lacuna in the legislation, the only proper course open to the Southampton appeal tribunal was to adjourn the appeal before them, which is what the claimant had requested. In my view, they erred in law in failing to adjourn. As I have now allowed the claimant's appeal in respect of the sanction, and as it is conceded that I should find that the conditions for the making of a late claim were made out, I substitute for the tribunal's decision my own decision that the claimant was entitled to jobseeker's allowance from 23 December 2000 to 8 January 2001.
8. The other decision of the Southampton appeal tribunal in respect of which I have granted leave to appeal was a decision in respect of the period 28 March 2001 to 26 April 2001, made on the basis that a claim in respect of that period was late. However, the claimant had been in receipt of benefit before that period and it is conceded by the Secretary of State that the tribunal should also have considered whether that earlier award had been correctly terminated. It had been terminated on the ground that the claimant had failed to attend an interview, but the claimant had stated that he had been unable to attend that interview because he had been attending another interview. The tribunal did not consider that issue and thereby erred in law. The Secretary of State, while observing that there is no evidence corroborating the claimant, helpfully concedes that I should determine this issue in the claimant's favour. Accordingly, I substitute for the tribunal's decision, a decision that the claimant had good cause for failing to attend the interview. I note that sanctions 9 and 11 of those listed in paragraph 3 of the submission to the tribunal were in force in respect of the relevant period at the time that submission was made. Unless those sanctions have been revised, superseded or set aside on appeal, effect must be given to them in determining whether the claimant is entitled to benefit in consequence of my decision.

(Signed) MARK ROWLAND

Commissioner

20 June 2003