IN THE UPPER TRIBUNAL			Case No  CJSA/68/2009
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed to the limited extent indicated.  The decision of the appeal tribunal sitting at Sutton on 22 September 2008 involved the making of an error of law and is set aside.  I re-make the decision in the following terms:
(a)	between 15 February 2008 and 2 April 2008 (both dates inclusive) the claimant did not cease to be entitled to income-based jobseeker’s allowance on the ground that he had failed to comply with an information requirement
(b)	following a supersession, the claimant was no longer entitled to income-based jobseeker’s allowance from 3 April 2008 because he had failed to comply with the request for information or evidence as requested by the Secretary of State in order to determine whether the decision awarding jobseeker’s allowance should be revised or superseded.

OBSERVATIONS

The parties will understand that this decision is not to be understood as saying that the claimant had a positive entitlement to income-based jobseekers allowance (“IBJSA”) at the relevant time, merely that he was not disentitled from it on the grounds, and for the whole period, which the Secretary of State had alleged.  Whether or not he meets the other conditions for IBJSA is a matter for the Secretary of State to determine.  The claimant will be aware from the Secretary of State’s submissions during the present appeal that this appears to be unlikely.

REASONS FOR DECISION

1. The claimant had been claiming IBJSA since 17 January 2008.  This case concerns the effect on his IBJSA claim of his failure to respond to requests from the Secretary of State for information about his partner’s work and earnings.  The Secretary of State had decided on 2 June 2008 that the claimant was no longer entitled to IBJSA.  That decision was upheld by the appeal tribunal.

2. The claimant raised a number of grounds in support of his application, none of which in my view were arguable with a real prospect of success.  In the exercise of the Upper Tribunal’s inquisitorial jurisdiction, however, I gave permission to appeal limited to a number of other points, which concerned the procedure adopted by the Secretary of State, which in one respect appeared to have exceeded his powers and in another to have failed to comply with relevant procedural safeguards.

3. In March 2008 it had come to the attention of the Secretary of State that the claimant’s partner was in receipt of working tax credit.  As the details of the claimant’s partner’s work and income would be relevant to the claimant’s IBJSA claim, the Secretary of State on 27 March 2008 advised him to provide a statement about these matters.

4. On 3 April 2008 the Secretary of State wrote to the claimant in terms which if read literally did not entirely make sense, not least as it appears that a whole paragraph may have been omitted.  The intention of the letter was (a) to inform the claimant that his benefit was being suspended and (b) to require him to provide further material in connection with it:

	“About your Jobseekers Allowance

This is because you may not be entitled to Jobseekers Allowance from 26/02/08 [this was subsequently revised to 15/02/08].

We will write to the local council to tell them about our decision.
You cannot appeal against this decision.  However, if this decision causes you hardship, please get in touch with us.

We need some information from you to help us decide if we can pay you Jobseekers Allowance again.

Can you please provide details of your ‘Partners’ current work, providing contact details of the employer. Can you also provide a statement regarding your ‘Partner’ Working Tax Credit’. Please contact your Job Centre to arrange a convient appointment.

Please send us your reply by 01/05/08. If you do not send us this information we may stop your benefit.  Please tell us straight away if you cannot give us this information….” [emphasis and errors are in original].

5. The claimant replied on 4 April saying he knew nothing about the tax credits as he and his partner were not getting on. A further explanation for the suspension was given to him on 10 April 2008 when he was advised to make a statement about his partner’s part-time work.  A form A15C (the terms and purpose of which were not before the tribunal and are not before me) was allegedly issued to the claimant on 18 April 2008.  On 24 April 2008 the claimant made a statement about his IBJSA claim which did not, however, address the matters he had been asked to inform the Secretary of State about.

6. On 2 June 2008, a decision was taken in terms that:

“As a result of a supersession, you are no longer entitled to income-based jobseekers allowance from 15.02.08 because you have failed to comply with the request for information or evidence as requested by the Secretary of State in order to determine whether the decision awarding jobseekers allowance should be revised or suspended.”
………..

7. There is no dispute that the Secretary of State was entitled to suspend payment of benefit in the circumstances which the letter of 3 April addressed.  Regulation 16(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 allowed this where, among other circumstances:

“(a) it appears to the Secretary of State that–
(i) an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled;
(ii) an issue arises whether a decision as to an award of a relevant benefit should be revised under section 9 or superseded under section 10.

8. The requirement for information or evidence to be provided was made pursuant to regulation 17, which, so far as relevant, was in the following terms:

(1) This regulation applies where the Secretary of State requires information or evidence for a determination whether a decision awarding a relevant benefit should be–
(a) revised under section 9; or
(b) superseded under section 10.

(2) For the purposes of paragraph (1), the following persons must satisfy the requirements of paragraph (4)–
(a) a person in respect of whom payment of a benefit has been suspended in the circumstances prescribed in regulation 16(3)(a);
(b) a person who has made an application for a decision of the Secretary of State to be revised or superseded;
(c) a person who fails to comply with the provisions of regulation 32(1) of the Claims and Payments Regulations in so far as they relate to documents, information or facts required by the Secretary of State;
(d) a person who qualifies for income support by virtue of paragraph 7 of Schedule 1B to the Income Support Regulations;
(e) a person whose entitlement to benefit is conditional upon his being, or being treated as, incapable of work.

(3) The Secretary of State shall notify any person to whom paragraph (2) refers of the requirements of this regulation.

(4) A person to whom paragraph (2) refers must either–
(a) supply the information or evidence within–
(i) a period of one month beginning with the date on which the notification under paragraph (3) was sent to him; or
(ii) such longer period as he satisfies the Secretary of State is necessary in order to enable him to comply with the requirement; or
(b) satisfy the Secretary of State within the period of time specified in sub-paragraph (a)(i) that either–
(i) the information or evidence required of him does not exist; or
(ii) that it is not possible for him to obtain it.

(5) The Secretary of State may suspend the payment of a relevant benefit, in whole or in part, to any person to whom paragraph (2)(b) to (e) applies who fails to satisfy the requirements of paragraph (4).

(6) In this regulation, “evidence” includes evidence which a person is required to provide in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations 1976.

9. Termination of benefit in cases of failure to furnish information or evidence is dealt with by regulation 18.  It is on this provision that the Secretary of State needed to rely to authorise the decision of 2 June 2008.  It is in terms that:

(1) Subject to paragraphs (2), (3) and (4), the Secretary of State shall decide that where a person–
(a) whose benefit has been suspended in accordance with regulation 16 and who subsequently fails to comply with an information requirement made in pursuance of regulation 17; or
(b) whose benefit has been suspended in accordance with regulation 17(5),
that person shall cease to be entitled to that benefit from the date on which payment was suspended except where entitlement to benefit ceases on an earlier date other than under this regulation.

(2) Paragraph (1)(a) shall not apply where not more than one month has elapsed since the information requirement was made in pursuance of regulation 17.

(3) Paragraph (1)(b) shall not apply where not more than one month has elapsed since the first payment was suspended in accordance with regulation 17.

(4) Paragraph (1) shall not apply where benefit has been suspended in part under regulation 16 or, as the case may be, regulation 17. 

10. Although regulation 18(1)(b) does make provision for “where entitlement to benefit ceases on an earlier date other than under this regulation” there is no indication that this was being relied upon.  The significance of 15 February is that it was the date as of which, but not on which, payment of benefit was suspended.  If in fact the claimant was disentitled to IBJSA because of his partner’s work, irrespective of the failure to provide the information sought, 15 February had no particular significance.  I therefore conclude that the Secretary of State was not attempting to rely on the words quoted earlier in this paragraph.  Consequently, termination of benefit (if otherwise lawful) could only have occurred “from the date on which payment was suspended” i.e. 3 April 2008 and not from the earlier date of 15 February 2008.

11.  A similar conclusion was reached in relation to the equivalent provisions for housing benefit, which are in similar terms, by Commissioner Rowland in CH/2995/2006.

12. It seems to me that to this extent the decision of 3 April 2008 was beyond the powers of the Secretary of State under regulation 18, an impression confirmed by the empowering legislation for regulation 18, section 23 of the Social Security Act 1998, which stipulates that:
 
“Regulations may provide that, except in prescribed cases or circumstances, a person—
(a) whose benefit has been suspended in accordance with regulations under section 21 above and who subsequently fails to comply with an information requirement; or
(b) whose benefit has been suspended in accordance with regulations under section 22 above for failing to comply with such a requirement,
shall cease to be entitled to the benefit from a date not earlier than the date on which payments were suspended.”

13. In my view, the invalid part of the decision may be severed to leave a valid part from 3 April 2008.  While in Dyson v Attorney-General [1912] 1 Ch 158 the Court declined to uphold a requirement to make a return, one part of which was beyond the powers of the body issuing it, that was predicated on legislation which by its terms placed considerable emphasis on the duty to make a return, which accordingly had to be considered as a unified and indivisible whole.  Given that jobseeker’s allowance is a weekly benefit (Jobseekers Act 1995, section 1(3)) with provision also for part weeks to be paid (Jobseeker’s Allowance Regulations 1996, regulation 150), the present context differs materially from that in Dyson.  I prefer the approach, albeit obiter, in Royal Bank of Canada v IRC [1972] Ch 665 and allow partial severance.

14. There is a further question as to whether the letter of 3 April was in any event a valid “information requirement made in pursuance of regulation 17” so as to authorise termination of benefit under regulation 18.  Under regulation 17(3) “the Secretary of State shall notify any person [who is subject to the regulation, such as the claimant here] of the requirements of this regulation.”  In my view there are three areas of potential difficulty to consider in rerlation to this requirement.

15. Firstly, under regulation 17(4), set out above, a person has to supply the information or evidence within, as a minimum, a period of one month beginning with the date on which the notification under paragraph (3) was sent to him”.  The letter of 3 April gave a short period.  A period “beginning on” a particular day includes that day: see Trow v Ind Coope (West Midlands) Ltd [1967] 2 QB 899 at 909, approved in the social security context in CIS/550/1993. A period of one month beginning with 3 April 2008 consequently expired on 2 May, not 1 May as provided for in the letter, which consequently failed to give the claimant the correct notification of the requirements of the regulation so far as time was concerned.

16. In fact, no decision was taken by the Secretary of State in May at all, the relevant decision being taken on 2 June.  Thus far from being a case where the deficiency of one day operated to the claimant’s disadvantage, he was given a further month to supply the information and still failed to do so.

17. The letter also failed accurately to notify the claimant of the requirements of the regulation in that it did not precisely reflect regulation 17(4), in failing to set out that the requirements of regulation 17 may alternatively be met by satisfying the Secretary of State that the information or evidence does not exist or that it is not possible to obtain it.  It did however tell the claimant to “tell us straight away if you cannot give us this information”.

18. The other respect in which the letter might be thought to have been defective was that it did not actually inform the claimant that his benefit was being suspended, although it could perhaps be inferred and the claimant does not appear to have been in any doubt.  In any event, the suspension was effected under regulation 16 and, so far as regulation 17 goes, merely provided the reason why the claimant fell within regulation 17(2), as opposed to forming part of “the requirements of this regulation” within regulation 17(3).  While I note that the phrase “the requirements of this regulation” as used in paragraph (3) differs from the more specific “the requirements of paragraph (4)” as used in paragraph (2), the phrase still only applies to “requirements” rather than to any wider expression such as “terms”.  I therefore conclude that on this point there was no failure to comply with the requirements of paragraph (3) by virtue of the omission of any reference to the suspension of the claimant’s benefit.

19. In assessing the impact of the non-compliance with regulation 17(3) in the respects identified in paragraphs 14 and 16, I apply the approach identified by the Court of Appeal in R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354.  There, Lord Woolf MR encouraged attention to be given to “the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance.”  He noted that “there are cases where it has been held that even if there has been no prejudice to the recipient because, for example, the recipient was aware of the right of appeal but did not do so, the non-compliance is still fatal.  The explanation for these decisions is that the draconian consequence is imposed as a deterrent against not observing the requirement.”  At 359, Lord Woolf MR observed:

“Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances: see Brayhead (Ascot) Ltd. v. Berkshire County Council [1964] 2 Q.B. 303, applied by the House of Lords in London & Clydeside Estates Ltd. v. Aberdeen District Council [1980] 1 W.L.R. 182 .”

20. At 362C, Lord Woolf MR identified questions which would need to be asked in the majority of cases, in the following terms:

“1.Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)”

21. I consider that the notification requirement in regulation 17(3) can be met by substantial compliance, but that the threshold of what is “substantial” compliance is a high one.  In CH/2995/2006, considering the equivalent housing benefit provisions, Commissioner Rowland said, albeit obiter:

“43.	It is unnecessary for me to consider whether there are cases where a failure to give notice under regulation 13(3) is not fatal to a termination under regulation 14.  The requirement that a claimant be given a specified period within which to provide information is obviously an important part of the scheme.  Regulation 14 provides what is, in effect, a procedural penalty as it enables a local authority to terminate entitlement for a failure to provide information, even if the claimant subsequently provides the information and it reveals that he or she would otherwise have been entitled to benefit.  This procedural penalty is therefore only to be imposed in circumstances where the claimant has been given a firm deadline for providing the information and has been subjected to the pressure of suspension.  It is very easy for a local authority to comply with the requirement to give proper notice of the length of the period within which information must be provided.  In those circumstances, even if a local authority’s failure to comply with regulation 13(3) is not always fatal to a subsequent termination under regulation 14, cases where the failure can properly be overlooked will be very rare.  The tribunal did not consider whether the local authority in this case had complied with its duty under regulation 13(3).”

22. Regulation 17 is by no means simple.  Notification to the claimant needs to be in a form which claimants have a proper opportunity of understanding, otherwise the exercise is futile.  It is for this reason that I do not regard the omission of the fine detail represented by the point raised in paragraph 16 above as fatal.  I note that Deputy Commissioner Ovey reached a similar conclusion in relation to the equivalent housing benefit provision in CH/1898/2007. 

23. On the facts and in the circumstances of this case, I would not regard it as right to insist on strict compliance rather than substantial compliance if the only problem with the notification was that the claimant was given a deadline for the information that was one day out, when there is no indication that the missing day made any difference to the claimant’s ability to get the information and no decision was taken aginst him for a substantially longer period. 

24. Regulation 17(3) has been included deliberately and for a clear purpose.  The provision is a prelude to imposing a procedural penalty and it is extremely important that claimants should know accurately where they stand.  Cases in which there are shortcomings in relation to compliance with such a requirement will be looked at very closely. This is part of the wider need to establish that the action taken by the Secretary of State was lawful, which, for the reasons in the first part of this statement of reasons it in part was not in this case.  The appeal tribunal failed adequately to apply the enabling regulations to the procedural steps taken by the Secretary of State and was thereby in error of law.

(signed)						
C.G.Ward
Judge of the Upper Tribunal
19 May 2009
(clerical error corrected 2 June 2009)