UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CJSA_1814_2007 (13 September 2007)

CJSA 1814 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. With the agreement of both parties, I substitute for that decision the decision that the tribunal should have taken. This is:

Appeal allowed. The decision of the Secretary of State of 9 11 2006, superseding the decision of 28 3 2006, is set aside. The appellant was actively seeking work in the period 31 10 2006 to 6 11 2006. That is therefore not a ground for superseding the decision awarding jobseeker's allowance to the appellant during that period.

For the avoidance of doubt, this means that there is no break in the appellant's entitlement to jobseeker's allowance for the period 31 10 2006 to 6 11 2006. He does not therefore need to make a new claim for that or the following period. He is also entitled to any relevant credited earnings for contribution purposes for the period.

2. The claimant and appellant (C) is appealing with my permission against the decision of the Worcester tribunal on 5 02 2007 under reference 055 06 00550.

REASONS FOR THE DECISION

C's jobseeker's agreement

3. This appeal arose from a dispute between C and an adviser at his local Jobcentre about whether he was actively seeking work during the week starting 31 10 2006. This was because of a difference between them about whether C had met his obligations jobsearching that week.
4. The dispute was stated to be about what C's jobseeker's agreement ("the Agreement" in this decision, but often abbreviated to "JSAg") required him to do. I set the relevant parts of the Agreement out in full. The Agreement stated that what C "will do to identify and apply for jobs" is:

Write to at least 1 employer a week

Phone at least 2 employers a week

Contact Jobcentre Plus Direct at least 2 times a week

Ask friends and people I have worked with before

Look at [a named local weekly paper] each week and [a trade journal] occasionally

Further down the page C is told:

"Take the following steps each week:

Read the reverse of this jobseeker's agreement and record three weekly jobsearch activities on it. Bring this to each signing day. Apply for any suitable vacancies at least one per week either advertised or on spec. Use all available resources including searching jobpoints before each signing day or adviser interview, jobcentre website at www.jobcentreplus.gov.uk, jobseekers direct on 0845 60 60 234 and www.directgov.uk."

5. During the week in question C read the papers, applied for two jobs, went to the Jobcentre once, and used the local internet facilities in the library to check the Jobcentre website. The adviser advised that this was a breach of the agreement both because the jobs for which he applied were unsuitable and because C had not visited the Jobcentre twice "as directed on his JSAg".

The tribunal decision

6. The tribunal agreed with both parts of that decision after an oral hearing. C appealed to the Commissioner on several grounds. I do not need to examine the full detail of either the tribunal's decision or all the grounds of appeal. The Secretary of State's representative now accepts that both the original decision and the decision of the tribunal were wrong both in law and in fact. I was invited to set aside the tribunal decision and replace it with the decision at the head of this decision. I do so with consent of both parties.

Actively seeking work

7. This appeal also illustrates a number of points of more general importance that deserve consideration. I comment partly because C felt so strongly about being accused of not looking for the right job. I also do so because both the Jobcentre adviser and the tribunal appear to have ignored or overlooked both the terms of the Jobseeker's Allowance Regulations 1996 ("the Regulations") and also what the standard wording in C's Agreement actually says. They both found that C had failed to comply with requirements that were not in the Agreement. They did not consider whether those requirements were consistent with the Regulations.
8. The Jobseekers Act imposes duties on claimants and also gives rights. The requirements imposed on C both in the Agreement and generally must be consistent with the law. I stress that because in this case both the adviser and the tribunal were requiring too much of the claimant.

What steps must be taken?

9. The first error made by both the adviser and the tribunal is that they applied a negative test, not a positive test. The law imposes a test that asks what the claimant did. They looked at what C did not do, not what he did do.
10. Section 1 of the Jobseekers Act 1995 ("the Act") imposes the requirement that a claimant actively seeks work. Sections 7 of the Act defines the test:

"a person is actively seeking work if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment".

In other words, if asked, a claimant must show what he or she did that week to get work.

11. More detail is set out in regulation 18 of the Regulations. Regulation 18(1) provides:

"… a person shall be expected to have to take more than two steps in any week

unless taking one or two steps is all that is reasonable for that person to do in that week."

This is the benchmark for judging the reasonableness of the claimant's actions.

Regulation 18(2) illustrates (but does not define) this by listing steps that are reasonable for a person to be expected to take.

12. That this is the benchmark is confirmed by the standard wording on the Agreement given to C. He was to record "three weekly jobsearch activities" each week on the back of the form. That is an indication on the form itself that the law does not require him to do everything on his Agreement where, as here, that requires him to undertake significantly more than three activities a week.
13. Further, there is nothing in the Act or the Regulations requiring that a claimant must comply with everything in the Agreement. The reverse is the case. The agreement must comply with the law. To be valid, a jobseeker's agreement must comply "with the prescribed regulations in force": section 9(1) of the Act. The pattern of the legislation is that a jobseeker's agreement must comply with the test of actively seeking work in sections 1(2)(c) and 7 of the Act and regulation 18 of the Regulations and not the other way round.
14. That is illustrated by this appeal. C was required by his Agreement to take 6 steps each week and several other steps from time to time. That is clearly more steps than the regulation requires of him to meet the test of "actively seeking work". And it is more steps than the Agreement asked him to record. On the facts, the secretary of state's representative now accepts that C took four steps in the week and that those four steps met the test in section 7(1).
15. The questions to be asked where it is alleged that someone is not actively seeking work are those following from section 7(1) and regulation 18(1), not from the agreement. They pose three questions, to be answered by the claimant's actions that week:

(a) Should the claimant be expected to take at least three jobsearch steps that week, or is it reasonable that only one or two be taken?

(b) What steps were taken?

(c) In the light of that reasonable expectation and those findings, were the steps taken by the claimant "such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment" (section 7(1))?

If the steps by the claimant taken meet that test, it is irrelevant that the claimant did not also take some other step, whether or not it is in the jobseeker's agreement.

16. The tribunal erred in law in not considering this but deciding instead that C had not visited the Jobcentre twice.

Visiting the Jobcentre

17. There was another reason why the tribunal was wrong in deciding that C was wrong in not visiting the Jobcentre twice in the week. That is not what C's Agreement actually states. As the text above shows, the Agreement required C to contact Jobcentre Direct, not the Jobcentre, twice a week. It did not require him to pay any weekly visits at all to the Jobcentre (though other provisions require him to visit to sign on or attend any interview). It was the adviser who replaced a requirement to telephone Jobcentre Direct with an alleged requirement to visit the Jobcentre. But this was not put in the Agreement. As a result, the test of reasonableness required by section 9(6) of the Act was not applied to it. This error was repeated in the submission to the tribunal. It appears that the tribunal looked at the submission and not at the Agreement itself. Had it looked at the Agreement it would have seen that there was no basis in fact for the contention that C failed to meet his Agreement in not attending the Jobcentre twice. C's visit to the Jobcentre once in the week meant that he took a positive step not required in his Agreement. Far from being criticised for that, he should have been given credit for doing it.

Using the official website

18. C stated that he had visited the Jobcentre physically once during the week. He had also visited www.jobcentreplus.gov.uk. He said in his grounds of appeal that he used:

"…the jobcentre facilities and website available in the local library which is exactly the same as used in the jobcentre. "

The adviser decided that this did not count as a visit to the Jobcentre or as a step in jobseeking. The tribunal agreed. They were wrong on that also.

19. The secretary of state's representative confirms as fact that C is correct about www.jobcentreplus.gov.uk. This is because "the Jobcentre website holds all the same job vacancies which can be found on the Jobcentre's computer system." The secretary of state's representative also accepted as fact that a visit to the website is therefore as effective a step in looking for employment as use of a jobpoint on a visit to a Jobcentre itself. Access to the official website is also one of the steps encouraged in the formal wording printed on C's jobseeker's agreement.
20. It follows that the adviser and tribunal were also both wrong not only in fact but in law in dismissing a visit to the website as not being a step taken by C as part of his jobsearch. Their error is difficult to understand. C was told to do this on the Agreement itself. Other facts in the appeal emphasise the point. Another issue in dispute was about C's accepted qualifications in information technology. If C was expected to apply for IT jobs, as he was, why was it not reasonable for him to jobsearch by internet?
21. This appeal illustrates the speed at which technology can go ahead of law and official instructions. In my view it must in 2007 be as reasonable – perhaps more reasonable in some cases - for claimants to conduct regular jobsearches and make job enquiries by internet and email rather than by actual visits to Jobcentres and libraries or by writing letters. I see no reason why someone should have to go to a Jobcentre to use a jobpoint when they can get exactly the same information from any computer connected to the internet. And most newspapers can now also be read as thoroughly over the internet as in print form. Indeed, some information is published only in electronic form, a practice the Department for Work and Pensions itself uses. It must be reasonable for applications for, and enquiries about, jobs to be made in the most appropriate way - and not by some having to be by letter and some by telephone as C was told in his Agreement. For example, in this appeal one of the job advertisements detailed in the papers asked for applications by email and expressly stated "No Phone Calls". By contrast, another asked for telephone calls only.
22. At the same time, the ease with which jobsearches, and direct contact with many employers can be made electronically is directly relevant in deciding what is reasonably to be expected of a jobseeker actively seeking work. While there may, as the secretary of state's representative noted, be issues about proof, it would now seem entirely possible for someone with the necessary facilities and skills to meet the weekly requirements of section 7

and regulation 18 for jobsearching by using a computer, internet, webphone and email alone and without leaving home. However, claimants would be wise to remember the advice of Commissioner Brown in the Northern Ireland decision C1/00-01 (JSA) and C2/00-01 (JSA) to keep a record and corroborative proof. Much computer software automatically does that.

David Williams

Commissioner

13 09 2007

[Signed on the original on the date stated]