Upper Tribunal (Administrative Appeals Chamber)

HS v Secretary of State for Work and Pensions [2009] UKUT 177 (AAC) (15 September 2009)

IN THE UPPER TRIBUNAL Case No. CJSA/3705/2008

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier tribunal sitting at Swansea on 27 August 2008. For the reasons set out below I dismiss the appeal.

The facts

2. The Claimant is a woman now aged 29. She completed her studies in 1998, having obtained an NVQ2 in administration/office work and RSA typing skills. Her previous employment before claiming JSA had been as a clerical assistant.
3. She claimed and was awarded JSA from 27 November 2006. On 28 December 2007 she signed a JSA Agreement (which presumably replaced an earlier Agreement). Its precise terms are of some importance. It is on a printed form, with boxes for completion. I set out below the relevant parts of the first page of the printed form in italics, and in bold the answers which were inserted.

The types of job I

am looking for

Clerical Assistant

Data Input

Filing/Records Clerk

I am willing and

able to start work

["immediately" box ticked]

I want to limit the

days and hours I am

available for work

["Yes" box ticked]

I am available for

work these days

and these hours

[Boxes completed indicating available 9am to 9pm Monday to Friday, with a maximum of 8 hours a day, 40 hours a week]

Other agreed

restrictions on my

availability and/or agreed

restrictions on

types of work

Looking for work in Llanelli, Swansea and Carmarthen as relying on public transport.

What I will do to

identify and apply for jobs

[Boxes completed indicating steps to be taken]

The second page of the printed form of Agreement included the following statements:

"My responsibilities

I know I must

Look for work

Be available for work

And that my Jobseeker's Allowance

May be stopped if I

Do not do enough to find work

Am not available for work

Refuse a suitable job

Reduce my chances of getting work

Do not attend the Jobcentre Plus Office on the day and time requested

Permitted period

I know I can limit myself to accepting work in my usual job and at my usual wages from / / to / /

After this I will be interviewed about taking any suitable job."

4. On 10 April 2008 the Claimant was notified by the Jobcentre of a vacancy as a checkout operator with B & Q in Carmarthen, but she did not apply for the vacancy. She was asked for reasons why not, and replied on 8 May 2008 that she had no intention of applying for a job at a checkout at B & Q because she had spent over 3 years training in her profession and obtained good qualifications.
5. On 25 June 2008 a decision was made, by way of sanction under s.19(6)(c) of the Jobseekers Act 1995, that the Claimant was not entitled to JSA from 27 June 2008 to 30 October 2008 (a sanction period of 18 weeks) on the ground that she had failed without good cause to apply for a vacancy notified to her.
6. The Claimant appealed on 2 July 2008, contending that in her JSA Agreement she had agreed to look for positions as a clerical assistant, data input, and filing/records clerk, and that the Jobcentre were now "moving the goal post" without her Agreement having been changed. She set out details of the steps which she had taken to find employment in those areas. She concluded:

"….I am not going to be forced to apply for positions such as check-out staff knowing that I would be unhappy to do this work; I would not be able to fulfil this position with vibrancy, enthusiasm and enjoyment in going to work. In fact this would wear me down and stress me out and make me ill."

7. In the Secretary of State's submission to the Tribunal it was submitted as follows. First, that although reg. 72(2)(a) if he Jobseeker's Allowance Regulations 1996 includes, among the factors which must be taken into account in determining "good cause" for the purpose of s.19(6)(c) of the Jobseeker's Act 1995, any restrictions on availability for work which apply in the claimant's case, the Claimant had not, on a proper construction of the JSA Agreement, restricted the type of work for which she was available. It was submitted that the statement as to the "types of job I am looking for" was not a restriction as to availability, and that any such restriction would have been noted in the box "other agreed restrictions on my availability". Secondly, that in all the circumstances the Claimant did not have good cause for not having applied for the vacancy and that the sanction period of 18 weeks was appropriate. The submission relied, in particular, on the facts that the Claimant had been claiming JSA for some 18 months by the time of the vacancy, and had applied for some jobs outside her specified area, such as in telesales and as a sales assistant. It was submitted, in reliance on Commissioner's decision CU 3/48(KL), that "a person does not have good cause for refusing employment because he/she would prefer another type of work."
8. In response to that, the Claimant maintained her previous position. By the time of the Tribunal hearing on 27 August 2008 the Claimant had in fact obtained part-time employment with the NHS as a health records clerk.

The Tribunal's decision

9. The Tribunal allowed the Claimant's appeal to the extent of reducing the sanction period to one of 6 weeks (from 27 June 2008 to 7 August 2008). It concluded that the Claimant did not have good cause for not applying for the vacancy in view of the facts, in particular, that her efforts to obtain employment in her chosen area had not been successful over some 18 months, and that her chosen type of work was "not particularly specialist and she had not undergone a period of highly specialised and highly qualified training. Her qualfications are quite basic." In the Tribunal's view "the time had come when she could reasonably be expected to widen her horizons and to take work of another type even for the short term."
10. As regards the Claimant's contention based on the fact that her JSA Agreement had not been varied, the Tribunal said:

"In my view the provisions of section 19 of the [1995 Act] override sections 9 and 10 and when read with Regulation 16 give the Secretary of State the power to require a claimant to apply for a vacancy outside of the restrictions imposed in the Jobseeker's Agreement and to impose a sanction if the Claimant fails to so apply."

The submissions in this appeal

11. The Secretary of State's initial submission in this appeal was that the Tribunal's approach which I set out in para. 10 above was wrong. It was submitted that "the claimant ….. could not be expected to apply for this type of work when the employment officer had failed in accordance with Section 10 to vary the claimant's Jobseeker's Agreement to include other types of work." It was submitted that I should set aside the Tribunal's decision and substitute a decision that the claimant had good cause for failing to apply for the vacancy.
12. However, it seemed to me that that approach might well not be right, and further that it raised an issue which might well be of considerable wider importance. I therefore requested the Secretary of State to consider the position further, and make a further submission.
13. The Secretary of State has now, in a further submission, resiled from that position. It is now submitted that (1) "there is nothing in the legislation which stipulates that a claimant may only be referred for vacancies which have been recorded on their Jobseeker's Agreement" and (2) the mere fact that a notified vacancy is not within the types of work "the claimant has prescribed in the jobseeker's agreement" does not necessarily amount to good cause, but is a factor which can be taken into account in determining good cause. It is submitted that although the Tribunal erred in law in the approach which it adopted in the passage set out in para. 10 above, it reached the only decision which it could properly have reached, and this appeal should therefore be dismissed.

The legislation

14. By s.1(2) of the 1995 Act the conditions of entitlement to JSA include requirements that the claimant is "available for employment" and "actively seeking employment." By s.6(1) "a person is available for employment if he is willing and able to take up immediately any employed earner's employment." Regulations 5 to 17 of the 1996 Regulations contain provisions relating to availability for employment. In particular, by reg. 8:

"Subject to regulations, 6, 7 and 9, any person may restrict his availability for employment by placing restrictions on the nature of the employment for which he is available, the terms or conditions of employment for which he is available (including the rate of remuneration) and the locality or localities within which he is available, providing he can show that he has reasonable prospects of securing employment notwithstanding those restrictions."

15. By reg. 31 of the 1996 Regulations:

"The prescribed requirements for a jobseeker's agreement are that it shall contain the following information –

(a) the claimant's name

(b) where the hours for which the claimant is available for employment are restricted in accordance with regulation 7, the total number of hours for which he is available and any pattern of availability;

(c) any restrictions on the claimant's availability for employment, including restrictions on the location or type of employment, in accordance with regulations 5, 8, 13 and 17;

(d) a description of the type of employment which the claimant is seeking;

(e) the action which the claimant will take –

(i) to seek employment; and

(ii) to improve his prospects of finding employment;

(f) the dates of the start and of the finish of any permitted period in his case for the purposes of sections 6(5) and 7(5).

(g) ………………………………………"

16. By s.19 of the 1995 Act:

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

(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

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

(c) has, without good cause, after a situation in any employment has been notified to him as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him."

17. By reg. 72 of the 1996 Regulations:

(2) …….in determining whether a person has good cause for any action or omission for the purposes of section 19(6)(c) …. the matters which are to be taken into account shall include the following –

(a) any restrictions on availability which apply in the claimant's case in accordance with regulations 6, 7, 8, 13 and 17A, having regard to the extent of any disparity between those restrictions and the requirements of the vacancy in question;

(b) any condition of personal circumstance of that person which indicates that a particular employment or carrying out of the jobseeker's direction would be likely to or did –

(i) cause significant harm to his health; or

(ii) subject him to excessive physical or mental stress;

(5) A person is to be regarded as having good cause for any act or omission for the purposes of section 19(6)(c) …….. if, and to the extent that, the reason for that act or omission –

(a) results from restrictions on availability which apply in the claimant's case for the period permitted in accordance with regulations 16 and 17 …"

Analysis and conclusions

(1) Did the Claimant restrict her availability for employment to the types of work which she was stated in her JSA Agreement to be "looking for"?

18. It is in my view helpful to consider this issue first. If the Claimant did restrict her availability, it is well arguable that, when determining the issue of good cause, the Tribunal ought expressly to have recognised that. (If she did not restrict her availability, it appears that, in view of the stance which she adopted in response to notification of the vacancy and to the sanction decision, she did not at any material time satisfy the requirement in s. 6(1) of being willing and able to take up any employed earner's employment. She was therefore at no material time "available for employment", and, regardless of the sanction issue, she therefore had no entitlement to JSA. That is not, however, a basis on which the Tribunal could properly have decided the appeal, which was concerned with the correctness of the sanction decision).
19. The issue whether the Claimant had restricted her availability for employment is one of construction of the JSA Agreement, against the background of the relevant statutory provisions.
20. It is apparent from reg. 31 that a distinction is there drawn between restrictions on the location or type of employment for which the claimant is available (reg. 31(c)) and the type of employment which he is seeking (reg. 31(d)). Reg. 31(d) comes after the mention of restrictions on availability for employment, and before the reference in reg. 31(e) to action which the claimant will take to seek employment (which relates of course to the requirement to be actively seeking employment). The requirement that the JSA Agreement should specify the type of employment "which the claimant is seeking" seems to be material to the requirement to be actively seeking employment, rather than to the requirement to be available for work.
21. That being so, it is perhaps strange, and arguably somewhat misleading, that the standard form JSA Agreement begins with a statement of the types of job which the claimant is "looking for", then moves on to deal with restrictions on availability for work (dealing first specifically with how soon the claimant will be available, then with hours and days of the week for which the claimant is available, and then with "other restrictions on my availability and/or agreed restrictions on types of work"), and then goes on to deal with the steps which the claimant must take in order to find work (i.e. with the actively seeking work requirement). The arguably misleading aspect is that the statement of the type of work which the claimant is "looking for" does not come in the part of the agreement dealing with the steps which the claimant will take in order to find work (actively seeking work), but before (and arguably as part of) the part dealing with restrictions on availability.
22. Nevertheless, had the box "other agreed restrictions on my availability" been filled in with words such as "availability restricted to work in Llanelli, Swansea and Carmarthen", I would have been of the view that it was reasonably clear that the Claimant had not restricted her availability to work of the type which she said she was "looking for".
23. However, the position is rendered much less clear by the fact that the "other agreed restrictions" box was in fact completed with the words "looking for work in Llanelli, Swansea and Carmarthen as relying on public transport" (my emphasis). In other words, what were undoubtedly intended to be agreed restrictions on availability were stated by reference to the places in which the Claimant was "looking for" work – precisely the language used opposite the first box in the Agreement. It seems to me well arguable that the Claimant was reasonably entitled to read the Agreement as meaning that she was restricting her availability to work of the types set out in the first box.
24. However, I have concluded, on balance, that the meaning of the Agreement, read as a whole, was not that she was restricting her availability to the types of job stated in the first box, but rather that those were the types of job which she agreed to look for in pursuance of her obligation actively to seek work. A factor in support of that conclusion is the reference on the second page of the Agreement to the "permitted period" during which "I can limit myself to accepting work in my usual job and at my usual wages". That is a reference to reg. 16, under which a person who is available for employment only in his usual occupation and/or only at a level of remuneration not lower than that which he is accustomed to receive may be treated for a permitted period (not longer than 13 weeks) as available for employment in that period. That period of 13 weeks had of course already expired by the time that this JSA Agreement was signed, which is no doubt why no dates were specified: the provision was inapplicable. That part of the Agreement goes on to say that "after this I will be interviewed about taking any suitable job". The types of job set out in the first box on the first page seem to have been the same as or very similar to the job last job which the Claimant had been doing before becoming unemployed. I would not read the word "suitable" as necessarily limited to employment of that nature.

(2) Did the Tribunal err in law when deciding that the Claimant did not have good cause for not applying for the vacancy?

25. Taking the matter in stages, it is clear that even the fact that a claimant has restricted his availability to work of a particular type does not necessarily mean that he has good cause for refusing to apply for a vacancy of a different type. That is clear from the facts (a) that s.19(1) begins with the words "even though the conditions of entitlement to a jobseeker's allowance are satisfied" (b) that reg. 72 says that the matters to be taken into account in determining good cause include any restrictions on availability and (c) that it is only restrictions on availability during a "permitted period" which are required by reg. 72(5) to be regarded as amounting to good cause.
26. However, the fact that the claimant has restricted his availability to work of a different type, and that there is in s.10 of the 1995 Act provision for variation of a jobseeker's agreement (with provision for any disagreement about a proposed variation to be referred to a decision maker), are in my judgment likely to be very significant factors to be taken into account in determining good cause, at any rate where there is a significant disparity between the nature of the vacancy and the type of employment for which the Claimant is required to be available. The fact that a claimant does not necessarily have good cause for not applying for a vacancy which is not within his restricted availability should not in my view be seen as detracting from the significance of this factor. The power to apply a sanction in such circumstances was no doubt considered desirable in order to cover, for example, cases of minor differences between the vacancy and the claimant's agreed availability.
27. However, the nature of the employment which a claimant has agreed to "look for" is not even listed in reg. 72(2) as a factor which must be taken into account in determining good cause. I have no doubt that it is permissible to take it into account, but in my judgment it is clear from the Statement of Reasons that the Tribunal did so, and I do not see any error of law in its approach. It was entitled to consider that the Claimant did not have good cause for not applying, even though the job was not one of a type which the Claimant had agreed actively to look for, and even though her JSA Agreement had not been varied so as to require her actively to look for other jobs.
28. I do not overlook that by s.7(1) of the 1995 Act a person is actively seeking employment in any week 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; or that by s.9(5) an employment officer shall not enter into a jobseeker's agreement unless, in the officer's opinion, the conditions mentioned in section 1(2)(a) [i.e. as to availability for employment] and (c) [i.e. as to actively seeking work], would be satisfied if the claimant were to comply with it. Nevertheless, that did not in my judgment automatically give the Claimant good cause for not applying for a notified vacancy outside the types of employment which she stated in her JSA Agreement that she was looking for.
29. The Tribunal properly took into account the Claimant's contention that she would find working at a checkout unduly stressful. It gave sufficient reasons as to why it was not impressed by that contention.
30. I must therefore dismiss this appeal.
31. The Claimant requested an oral hearing of this appeal, on the ground that the outcome of the appeal should be made public. I consider that she has in her written submissions advanced her case to its fullest possible extent. I do not therefore consider that there would be any advantage in an oral hearing. My decision will be available to the public on the Upper Tribunal website.

Charles Turnbull

Judge of the Upper Tribunal

15 September 2009