Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CJSA/2428/2012

ADMINISTRATIVE APPEALS CHAMBER

 

BEFORE UPPER TRIBUNAL JUDGE WARD

 

Decision: The appeal is allowed.  The decision of the First‑tier Tribunal sitting at Nottingham on 25 July 2011 under Ref: SCO45/11/00735 involved the making of an error of law and is set aside.  Acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision in the following terms:

 

The decision by the Secretary of State dated 6 January 2011 is not upheld.  The decision dated 29 July 2010 awarding jobseeker’s allowance did not fall to be superseded under regulation 6(2)(f) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999/991.  This is because a sanction could not lawfully be imposed for the period 7 January 2011 to 20 January 2011, because the claimant was by regulation 73(2A)(b) of the Jobseeker’s Allowance Regulations 1996 to be regarded as having good cause for his failure to attend the employment programme on which he had been given a place.

 

 

REASONS FOR DECISION

 

1. Put simply, this case demonstrates the importance of the DWP going through the steps required by the legislation before imposing a sanction, or risk finding that a claimant has by law “good cause” for a failure to attend an employment programme.

 

2. The claimant, a man now aged 58, with a lengthy working record, had, following a period claiming jobseeker’s allowance, been referred to the programme known as “Flexible New Deal” (or “FND”).  He was referred in March 2010 and, though he obtained temporary work in the summer of 2010, it did not last for long enough for the requirement to participate in Flexible New Deal to be set aside.  He was re‑referred to Flexible New Deal, to a company called Ingeus UK Ltd (“Ingeus”). The claimant attended a meeting with Ingeus on 20 September 2010 but was unimpressed by the assistance Ingeus could offer.  In consequence he failed to attend a number of appointments with them.  This resulted in a letter sent on the headed notepaper of Ingeus UK Ltd (which I note refers to it as being “part of the Department for Work and Pensions”, though I do not see in what sense this can be so).  The letter is signed by a Ms Kate Porter, whose job title is not stated.  It set out the details of the claimant’s next Flexible New Deal appointment, which was to be on 14 December 2010, and said that:

 

“Please note that if you do not attend and do not have a good reason you could lose your jobseeker’s allowance and national insurance credits.”

 

The claimant did not attend the scheduled appointment.  He was sent a standard enquiry form asking why he had not done so and he replied drawing attention to the reservations he had about Ingeus and their perceived ineffectiveness in assisting him with his job search.  In particular he asserted that “all they came up with was a literate course and an interview course.”  He reiterated that “I have qualifications and I am 56 years old and know how to conduct myself at an interview.”  A sanction of two weeks was applied to his jobseeker’s allowance, from 7 January to 20 January 2011.

 

3. A complaint by the claimant ended up with the district manager of Jobcentre Plus for the county in which he lives, a Mr Sheppard.  He replied by letter of 28 January 2011 indicating that he had spoken to Ingeus who had said that at the 20 September meeting they had explained the help they could offer the claimant “such as exploring other job goals and making speculative applications”.  He enclosed a copy of leaflet FND1 “which explains the Flexible New Deal responsibilities”.

 

4. The claimant appealed to the tribunal.  There was a mix‑up over his attendance.  The hearing went ahead anyway and dismissed the appeal and an application for set aside was refused.  The tribunal noted (among other things) the letter of 30 November 2010 from Ingeus and the warning it contained.  It somewhat inconsistently noted both that he “failed to attend the appointment and gave no reasons for not doing so” but also that in his reply to the enquiry from the Jobcentre about why he had not attended his reply had set out the views about the New Deal Scheme and made comments about the way he had been treated by the Jobcentre.

 

5. Section 19 of the Jobseekers Act 1995, so far as relevant, provides as follows:

 

“(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).  

…

(2) If the circumstances are any of those mentioned in subsection (5), 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 prescribed. 

…

(5) The circumstances referred to in subsections (1) and (2) are that the claimant –

 

(a)…

 

(b) has, without good cause –

 

(i) neglected to avail himself of a reasonable opportunity of a place on a training scheme or employment programme

 

(ii) after a place on such a scheme or programme has been   notified to him by an employment officer as vacant or about to become vacant, refused or failed to apply for it or to accept it when offered to him;

 

(iii) given up a place on such a scheme or programme; or

 

(iv) failed to attend such a scheme or programme on which he has been given a place; …

 

(c) …

…

(8) Regulations may –

 

(a) prescribe matters which are, or are not, to be taken into account in determining whether a person –

 

(i) has, or does not have, good cause for any act or omission;

…

 

(b) prescribe circumstances in which a person –

 

(i) is, or is not, to be regarded as having, or not having, good cause for any act or omission; 

…

…

(10) In this section –

 

(a) “employment officer” means an officer of the Secretary of State or such other person as may be designated for the purposes of this section by an order made by the Secretary of State;

 …

(c) “training scheme” and “employment programme” have such meaning as may be prescribed.”

 

5. Regulation 75 of the Jobseekers Allowance Regulations 1996/2007 (“the 1996 Regulations”) sets out a lengthy definition of “an employment programme” for the purposes of sections 19 and 20A of the 1995 Act and for Part 5 (sanctions) of the 1996 Regulations themselves.  It is not necessary to set it out in full.  Suffice it to note that the Flexible New Deal falls within it, by virtue of regulation 75(1)(a)(v).

 

6. Regulation 73 of the 1996 Regulations has effect for the purposes of section 19 of the 1995 Act.  Paragraphs (2), (2A), (2B) and (2C) each set out circumstances in which a person is to be regarded as having good cause for the purposes of section 19(5)(b).  In each case, the paragraph is expressed to be without prejudice to any other circumstances in which a person may be regarded as having good cause for any act or omission for the purposes of section 19(5)(b).  I am particularly concerned with paragraph (2A), which provides that:

 

“Without prejudice to any other circumstances in which a person may be regarded as having good cause for any act or omission for the purposes of section 19(5)(b) …, a person is to be regarded as having good cause for any act or omission for those purposes if-

 

(a) the act or omission relates to an employment programme specified in regulation 75(1)(a)(ii) or (iv), (v) or (vi) or the training scheme as   specified in regulation 75(1)(b)(ii), and

 

(b) he had not, prior to that act or omission, been given or sent a notice in writing by an employment officer referring to the employment programme or training scheme in question (“the specified programme”) and advising him that if any of the circumstances mentioned in section 19(5)(b)…arise in his case in relation to the specified programme his jobseeker’s allowance could cease to be payable or could be payable at a lower rate.”

 

7. In this case the claimant denied having received any notice from the Jobcentre until one was enclosed with Mr Sheppard’s reply to his complaint.  In giving permission to appeal I asked whether there was any evidence that a notice envisaged by regulation 73(2A)(b) had ever been given or sent to the claimant and specifically whether Ms Porter, writing on behalf of Ingeus UK Ltd, not Jobcentre Plus or the DWP, was an “employment officer” for this purpose. 

 

8. In reply, the Secretary of State accepts that the tribunal erred by failing to apply regulation 73(2A).  Further, the Secretary of State submits that:

 

“Although it was DWP policy intention that all FND providers be designated “employment officers” this was not prescribed within the legislation (Jobseekers Act 1995 or the Jobseeker’s Allowance Regulations 1996).  Further, I can find no evidence that Ingeus were so designated.”

 

9. As by section 19(10) a person who is not an officer of the Secretary of State can only be an “employment officer” if they have been designated for the purposes of the section by order, it follows that the condition in regulation 73(2A)(b) was not fulfilled and thus, without more, that the claimant was to be regarded as having good cause for his act or omission. 

 

10. Although the Secretary of State invites me to remit the appeal, it seems to me this is a case where I can properly substitute my own decision.  If the necessary precondition to finding a lack of good cause has not been made out, that is an end of the matter.

 

11. For the record however, in giving permission I further asked whether the tribunal erred by failing to make sufficient findings as to what if anything it had been established that the Ingeus programme would provide to the claimant, when there was a conflict of evidence between him (“a literate course and an interview course”) and Mr Sheppard (“help such as exploring other job goals and making speculative applications”.)  I also asked whether the tribunal erred by failing to consider whether if there had been a failure to establish what the Ingeus programme would provide to the claimant, or if he reasonably considered that what was to be provided would not help him, that could provide good cause for purposes of section 19(5)(b). 

 

12. The Secretary of State in agreeing with the errors of law which were identified in granting permission to appeal submits that:

 

“The FtT [First-tier Tribunal] also failed to make any findings about the appropriateness of the FND programme for this claimant.  Consideration should be given to the skills and experience of the claimant with respect to the relevance of the FND programme to which he is directed.  This should have been investigated further by the FtT having regard to regulation 73(2) “without prejudice to any other circumstances in which a person may be regarded as having good   cause …”.

 

13. In conclusion, I note that the Secretary of State’s original submission to the First-tier Tribunal was misleading in that it sets out at length the provisions of regulation 73(2), while lumping together those of paragraphs (2A), (2B) and (2C) in the unrevealing comment that “special circumstances apply to persons on new deal employment programmes”.  No mention is made of the precondition created by regulation 73(2A), which can only have made the tribunal’s task harder. 

 

 

(Signed on the Original)

 

C G Ward

Judge of the Upper Tribunal

9 May 2013