UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CJSA_1703_2006 (10 August 2006)

[ORAL HEARING]

CJSA/1703/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decision

1. I grant leave to appeal. In accordance with the provisions of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999 I treat this application as an appeal. The claimant and the Secretary of State have each agreed to this course of action. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Bexleyheath Tribunal made on 14^th October 2005 under reference U/45/168/2005/03017.
2. I substitute my own decision. This is to the effect that in respect of the claimant's claim to jobseekers allowance JSA made on or about 23^rd June 2005, JSA is not payable for a period of four weeks (including the period between leaving employment and making the claim). This is because the claimant voluntarily left his employment without just cause. I remit to the Secretary of State matters relating to the calculation and payment of any arrears.
3. I held an oral hearing of this application on 27^th July 2006. The claimant attended in person but was not represented. The Secretary of State was represented by Mr Lutterodt from the office of the Solicitor to the Department for Work and Pensions.

Background and Procedure

4. The claimant was born on 15^th June 1959. He has experience of working in the leisure, tourism and sports fields but has had various spells of unemployment and had been in receipt of (JSA) from 14^th October 2004 until 6^th March 2005. At all relevant times he lived on his own as a single person. On 13^th March 2005 he started work in telephone sales in the leisure "industry" for a company employing about eight people. His gross weekly wage was £200. There was an unrealised hope or expectation that further earnings would arise through commission on sales. It took him from 90 minutes to 2 hours each way each day to get to and from work, involving train, bus and a walk. The daily fares were £12.80. None of this took him by surprise and he was aware from the outset that this was what was involved.
5. The claimant states that he enjoyed this work and during this employment he made no attempt to find other employment, before reaching a mutual agreement with the managing director that he would leave the job, which he did on 15^th June 2005. The managing director has written that the claimant left "on good terms as he felt that he could not justify the travel expense … For the wage he was earning it made better financial sense to seek employment locally" (page 7 of the file).
6. The claimant claimed JSA as from 23^rd June 2005 and this was awarded on 5^th July 2005. The Secretary of State then investigated the circumstances in which the claimant had left his employment and on 20^th July 2005 superseded the original decision by imposing a sanction so as to refuse payment of JSA for a 20 week period from 27^th July 2005 to 6^th December 2005.
7. On 22^nd August 2005 the claimant appealed to the tribunal against this decision. The tribunal considered the matter on 10^th November 2005 and confirmed the decision of the Secretary of State. On 3^rd May 2006 the District Chairman of the tribunal refused the claimant's application for leave to appeal to the Commissioner against the decision of the tribunal. He renewed his application before the Commissioner and on 2^nd June 2005 I directed that there be an oral hearing.

Relevant Provisions

8. So far as is relevant, section 19 of the Jobseekers Act 1995 provides as follows:

19(1) Even though the conditions for entitlement to a jobseeker's are satisfied with respect to a person, the allowance shall not be payable in any of the circumstances mentioned in subsection (5) or (6).

19(3) If the circumstances are any of those mentioned in subsection (6), the period for which the allowance is not to be payable shall be such period (of at least one week but not more than 26 weeks) as may be determined by the Secretary of State.

19(6) The circumstances referred to in subsections (1) and (3) are that the claimant-

(a) …

(b) has voluntarily left [his] employment without just cause;

(c) …

(d) …

19(9) … in determining whether a person has, or does not have … just cause for any act or omission, any mater relating to the level of remuneration in the employment in question shall be disregarded.

9. Section 20(3) of the Act requires regulations to be made to allow persons of a prescribed description to leave employment during a trial period without falling within section 19(6)(b). The relevant regulations are to be found in regulation 74 of the Jobseeker's Allowance Regulations 1996. The claimant is a person of a prescribed description because he had neither worked nor been a student within the 13 week period prior to taking up employment (regulation 74(1). However, he did not leave the employment within the trial period, which is specified as the period of eight weeks following the first four weeks of the employment (so that he has to give it a chance for four weeks, and then has eight weeks in which he can leave without risking a sanction). In the present case the trial period ended on 4^th June 2005 but the claimant did not leave until 15^th June 2005. I return to this point below.
10. So far as concerns the present case regulation 70 of the 1996 regulations provides as follows:

70 In determining a period under section 19(3) … [the Secretary of State] shall take into account all the circumstances of the case and, in particular, the following circumstances-

(a) …

(b) …

(c) …

(d) where the claimant left his employment voluntarily … any mitigating circumstances of physical or mental stress connected with the employment.

It must be noted that all of the circumstances must be taken into account, not only those specified in regulation 70 or in other statutory provisions or regulations.

Voluntary Leaving

11. It is not disputed that the claimant left his employment, but did he do so voluntarily? The claimant takes the view that because he left after a discussion with the managing director, and left on good terms, he did not leave "voluntarily". This cannot be correct. There is no evidence that he was under any pressure by his employer to leave the job – indeed the evidence goes the other way – and there is no basis for saying that he did not leave the job voluntarily.

Just Cause

12. This is not defined in the Act or the regulations. The use of this phrase has generally been taken by the courts and the Commissioners to mean that in order to avoid exclusion from benefit the claimant must have acted reasonably in circumstances that make it just that the cost of his unemployment should be borne by public funds. His reasons for leaving, prior attempts to find or find out about other employment, his prospects of finding other employment (although not his claims record) must all be taken into account (R(U) 20/65 (ToC)).
13. Although the tribunal considered the question of whether the claimant had left voluntarily, it does not appear to have directed its mind to the issues involved in deciding whether there was just cause. This is a separate question from that of the voluntary nature of leaving, and the tribunal was in error of law in not addressing it specifically. However, on the facts of this case, and in the context of the considerations set out in the previous paragraph, I find that he did not have just cause for leaving his employment.

The Period of Exclusion from Benefit

14. The Secretary of State fixed a period of 20 weeks without giving any real reason why that particular period had been fixed. The tribunal recorded that the 20 week period was considered reasonable in al of the circumstances. In approaching the question in this way the tribunal made a further error of law. The tribunal was required to consider the matter afresh and fix a period determined by it and to give reasons for fixing that length period (see eg R(U) 3/79).
15. On appeal to it, a tribunal considers a matter by way of a rehearing. It is not simply considering whether the decision of the Secretary of State was reasonable (see eg R(I) 2/05 (ToC)). It may make any decision that the Secretary of State could have made but it is important to appreciate that, unlike the Secretary of State, the tribunal is making a judicial decision. It may take account of evidence or information or matters that were not before the Secretary of State. It may hold a proper oral hearing at which witnesses may attend and be questioned. For all of these reasons it must make its own decisions on matters under appeal. On application within the appropriate time, or at its own initiative, the tribunal issues a statement of reasons (commonly referred to as a "full statement") such that an intelligent reader can understand why and how each conclusion has been reached. It is well established that failure to do this adequately amounts to an error of law (see eg R(U) 4/87). In the present case the tribunal failed to give any explanation as to why the 20 week period had been fixed.
16. It is possible that the Secretary of State and the tribunal both started with the 26 week maximum period and allowed some deduction by way of mitigation. If so, that was the wrong approach. The 26 week period is not a starting point. It is the maximum. It seems to me that wording of the statute requires that one week be taken as the starting point and then that it be adjusted by reference to any aggravating and mitigating factors. I am not suggesting that a rigid or formulaic or mathematical approach be taken, but that relevant considerations must be taken into account in fixing the appropriate period. It must also be remembered that, unlike the previous provisions that were replaced by the introduction of JSA, what is provided here is a total and permanent loss of JSA for the relevant number of weeks, rather than a deferral or postponement (CJSA/3304/1999). This is a real (and in some circumstances harsh) penalty.
17. In addition to the matters specified by statute or regulations, and without prejudice to any other considerations, the tribunal must take account of the reasons given for leaving the employment, any attempts to find other employment, the prospects of so doing, whether leaving the employment created any particular problems for the employer, the claimant's fellow workers, or the employer's customers and, in the light of the working conditions (including travel to and from work) the length of time the claimant had been in the employment.
18. It is also well established that the public interest may be taken into account. Thus, it seems to me that proximity to the end of the trial period is relevant. In the present case, if the claimant had left the job 2 weeks earlier than the date on which he did leave it, there would have been no exclusion from benefit. The public interest was better served by the claimant working for those two weeks than by him leaving at the earlier date and claiming JSA.
19. In the present case, the aggravating features are that the claimant appears not to have looked for another job before he decided to leave the job he had, that there was no pressure from the employer, fellow workers or customers for him to leave, and that he could not or would not explain why he left at that particular time. The mitigating features are that he had some experience in the relevant job field and might have hoped to obtain some employment, that in light of the time spent travelling to and from work and working, his net income from working was modest and less than he had hoped or expected (although his earnings were not relevant to the question of just cause), that his leaving the employment clearly did not create any particular problems for the employer, the claimant's fellow workers, or the employer's customers, and that he left his job a very short while after the end of the trial period.
20. This all points to a period towards the bottom end of the range, and four weeks seems to me to be the appropriate period in this case.

H. Levenson

Commissioner

10^th August 2006