Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the Appellant’s appeal.

The decision of the Enfield First-tier Tribunal dated 8 August 2012 under file references SC921/12/00595 involves an error on a point of law and is set aside. 

The Upper Tribunal re-makes the tribunal’s decision in the following terms:

“The Appellant’s appeal is allowed.

The Secretary of State’s decision of 20 October 2011, superseding the decision of 23 June 2005 awarding jobseeker’s allowance (JSA) and imposing a sanction so that JSA was not payable from 27 October 2011 to 9 November 2011 (both dates included), is revised. The purported sanction is of no effect. This is because the sanction in question was imposed before the expiry of the 5-day period in which the Appellant was entitled to make representations. The decision to impose a sanction was thus not in accordance with regulation 7(1) of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011/917). JSA should not have been stopped for that two-week period.”

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

Introduction

1. This appeal concerns a sanction involving the loss of jobseeker’s allowance (JSA) for two weeks. The Department for Work and Pensions (DWP) and the First-tier Tribunal (FTT) had both found that the Appellant had failed without good cause to participate in the “Work Programme” under the Employment, Skills and Enterprise Scheme. My conclusion is that, in this instance, the sanctions regime was not properly applied. It follows that JSA should not have been stopped for the fortnight in question.

A summary of the facts

2. A DWP employment officer referred the Appellant to Ingeus, “a partner organisation of Jobcentre Plus”, involved in the delivery of certain contracted-out functions under the Work Programme. Ingeus invited the Appellant to an appointment at one of their offices. The Appellant did not attend. When he was asked why, he described Ingeus as a “suspect Racist organisation” and asked for evidence that it had a “well managed, effective and transparent Race Equality Strategy”. He was sent a copy of Ingeus’s equal opportunity policy. A DWP decision maker was not satisfied with the Appellant’s explanation for his non-attendance and imposed a two-week sanction, withdrawing JSA.

The hearing before the First-tier Tribunal

3. The Appellant lodged an appeal to the FTT. He asked for an oral hearing but failed to attend. The tribunal clerk telephoned him on the day of the hearing but the Appellant said that he would not be attending as he had not received a reply from the FTT office about its own race relations policy. The FTT decided to proceed in his absence and then dismissed the Appellant’s appeal.

4. After the hearing, the Appellant wrote to the FTT requesting a statement of reasons. He expressed his suspicion that the Tribunals Service is “impacted by Institutional Racism” and does not have a “well managed, effective and transparent Racial Equality Strategy”.

5. The FTT’s statement of reasons explained that the Appellant had not shown good cause for his failure to attend the relevant appointment. In particular, he had “not provided any evidence to support his contentions about Ingeus or to demonstrate that he would be discriminated against by that organisation”. The FTT found that “a reasonable person of his age and experience would not respond to an invitation to attend an appointment to assist in obtaining employment in the manner demonstrated by [the Appellant]”. 

6. The Appellant then applied for permission to appeal to the Upper Tribunal. This was initially refused by a FTT District Tribunal Judge, who noted that the Appellant had “placed insurmountable objections to the process of the tribunal and was not prepared to come to the tribunal to give evidence”. Moreover, the matters the Appellant had raised were “incapable of resolution in this tribunal”.

The proceedings before the Upper Tribunal

7. The Appellant’s appeal in this matter is supported by the Secretary of State for Work and Pensions. The Appellant has not consented to a decision without reasons: “because I suspect that the Upper Tribunal Judge might be a white supremacist racist, I need to know the reasons for all decisions”.

8. At this point I should explain that the Appellant had six separate appeals before the FTT, relating to six separate JSA sanctions relating to six different failures to attend appointments at Ingeus. The explanation given by the Appellant for his non-participation was the same in each instance.

9. The Secretary of State’s representative, Ms Helena Thackray, only supports the appeal against the sanction imposed by the decision made on 20 October 2011.  This stance has presumably been taken because of comments I made when giving permission to appeal in all six appeals. I had indicated then that I did not find the Appellant’s own grounds of appeal persuasive.

10.  However, I identified a particular problem with the decision-making process in one of the six appeals, with the Upper Tribunal reference CJSA/3900/2012. The Appellant had failed to attend an appointment at Ingeus on 7 October 2011. Jobcentre Plus sent him a letter on 17 October 2011, asking for his explanation and requesting a response by 25 October 2011. The Appellant did not reply till 9 November 2011 (the reason he gave for the delay was “the impact of suspect White Supremacist Racist activity in the Civil Service”).

11.  Yet on 20 October 2011, just three days after the letter had been sent, a DWP decision maker imposed a sanction on the Appellant, stopping his JSA for the period from 27 October 2011 to 9 November 2011 because of his failure to attend on 7 October 2011.

So why did the First-tier Tribunal err in law in this one appeal?

12.  The JSA sanction was imposed under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (SI 2011/917). Regulation 7(1) provides as follows:

“Good cause

7.—(1) A claimant (“C”) who fails to participate in the Scheme must show good cause for that failure within 5 working days of the date on which the Secretary of State notifies C of the failure.”

13.  Ms Thackray, for the Secretary of State, concedes that in this particular appeal the Appellant was not given the full five days in which to respond. She therefore accepts that the sanction was invalid and that the FTT erred in law in upholding this particular penalty.

14.  In my view that concession was correctly made. The Appellant may have been late in providing his explanation, and he may not have had a satisfactory reason for failing to attend the Ingeus appointment, but the DWP decision maker had “jumped the gun” by imposing the sanction before the time given for responding had elapsed. Given the relevant legislation involves a financial penalty, it should be construed strictly. In this particular case the proper procedure was not followed and the sanction was wrongly imposed.

Conclusion

15.  I therefore allow this appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The decision that the FTT should have made is as set out at the head of these reasons (section 12(2)(b)(ii)). In short, in the present case, whatever the position as regards the other sanction decisions, the Appellant’s appeal should have been allowed by the FTT.

So what happens to the other five cases?

16.  In the five other appeals it appears that the proper procedures were followed in that the five day period was allowed to elapse before a decision was made to impose a sanction. The decisions in the other five cases are therefore not flawed in the same way.

17.  However, the other five appeals raise a separate point. This concerns the effect of the Court of Appeal’s decision in R (on the application of Reilly and Wilson) v Secretary of State for Work and Pensions [2013] EWCA Civ 66 and of Parliament’s subsequent hasty decision to pass new legislation in the form of the Jobseekers (Back to Work Schemes) Act 2013. These five appeals are just five amongst a number of appeals pending before the Upper Tribunal which concern this same issue (and many more before the FTT).

18.  In those circumstances it is appropriate to wait until a lead case is identified and decided before ruling on the other five cases involving this Appellant. Separate directions will be issued on those appeals staying (or, in effect, suspending) any further proceedings until such a lead test case is determined.

Signed on the original Nicholas Wikeley

on 25 June 2013 Judge of the Upper Tribunal