DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

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

The decision of the North Shields First-tier Tribunal dated 28 September 2012 under file reference SC045/11/02423 involves an error on a point of law. The First-tier Tribunal’s decision is set aside. The Upper Tribunal is able to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:

The Appellant’s appeal against the Secretary of State’s decision dated 13 January 2011 is allowed.

The Appellant was properly entitled to jobseeker’s allowance for the period from 6 July 2010 to 6 September 2010 (both dates included).

The Secretary of State’s decision dated 13 January 2011 is revised accordingly.

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

REASONS FOR DECISION

The background to this appeal

1. The Appellant is, or rather was at the relevant time, a lone parent and also a mature student on a degree course. She claimed jobseeker’s allowance (JSA) during the university holidays in the summer of 2009 and 2010. She has not claimed JSA, as I understand it, during term-time or the shorter holidays.

2. On 13 January 2011 a DWP decision-maker superseded (or changed) the earlier decision of 26 August 2010 awarding her JSA that summer. The new decision was that the Appellant was not entitled to JSA as from 6 July 2010. The reason given was that she was not available for work as from that date as she was a full-time student during her period of study.

The First-tier Tribunal (FTT) proceedings

3. A First-tier Tribunal (FTT) heard the Appellant’s appeal in North Shields on 28 September 2012. The FTT’s decision was to dismiss the appeal and confirm the decision of 13 January 2011. The tribunal’s decision was based on the finding that the Appellant was a full-time student as that term is defined for the purposes of social security law.

The Upper Tribunal proceedings

4. The Appellant then applied for permission to appeal to the Upper Tribunal. Her ground of appeal was that she was not a registered student at the time of claiming JSA in the summer of 2010.

5. Judge Lloyd-Davies directed an oral hearing of the application to the Upper Tribunal. I later gave permission in these terms (I am repeating this text here because although the Appellant will have seen this grant of permission before, the previous tribunal will not have, and they are also sent a copy of the final decision):

‘1. An appeal to the Upper Tribunal lies on “any point of law arising from a decision” of the First-tier Tribunal (FTT) (see s.11(1) of the Tribunals, Courts and Enforcement Act 2007). The Upper Tribunal may give permission to appeal if there is a realistic prospect that the decision was erroneous in law or if there is some other good reason to do so. The application for permission to appeal was received outside the one month time limit. However, I accept the Appellant’s explanation that there must have been a problem with the post. So it is only right to extend time and to consider the application for permission on its merits.

2. The Appellant’s stated ground of appeal is that at the time of claiming JSA she was not a registered University student (it was the summer vacation) and so she was not caught by the rule which prevents JSA being paid to full-time students. I am not sure this ground has (legal) merit – what matters is the DWP definition of a full-time student, and not the individual’s status as regards their own University registration. DWP rules are full of provisions deeming things and people to be what they are not.

3. However, having had the advantage of exploring the issues with the Appellant at an oral hearing in Newcastle on 18 June 2013, I am satisfied that the case is arguable. I am giving permission essentially for two main reasons.

4. The Appellant claimed and was paid JSA in the summers of 2009 and 2010, at the end of her first and second years of study. In January 2011 she filled in a DWP questionnaire about her studies. This led to an outcome decision (it is said) on 13 January 2011, superseding the award of benefit made on 26 August 2010. Although that decision is cited at p1C, I cannot see any copy of the actual decision on file. The Appellant’s letter of appeal refers to a DWP letter of 31 January 2011 (again, not on file). Nor is there any copy, as far as I can see, of the original JSA claim (although her JSA agreement is included). There is, therefore, a certain murkiness about the decision-making process and history which justifies giving permission.

5. Second, the Appellant had her youngest child (born 1993) living with her at all material times. It is possible – I put it no higher than that – that he was a “child or young person” under the relevant DWP definition in the summer of both 2009 and 2010 (or possibly just the former, depending on his educational career and the child benefit history). I note that the referral form at p.1 describes her as not a parent (in the DWP sense of that word).

6. This is important as the general rule is that University students do not qualify for JSA, even during vacations. However, there is an exception for lone parents (again, as that term is defined by the DWP): see regulation 15 of the Jobseekers Allowance Regulations 1996 (SI 2006/207). Those rules were amended by the Social Security (Students Responsible for Children or Young Persons) Amendment Regulations 2008 (SI 2008/1826). The explanatory memorandum explained the purpose in part as follows (at para. 2.1):

“These Regulations amend the Jobseeker’s Allowance Regulations 1996 (“JSA regulations”) to provide that single full-time students with responsibility for a child (aged under 16 years) or a young person (aged under 20 years old undertaking a full-time course of non-advanced education e.g. GCSE, AS and A level, NVQ level 3 and below) can be regarded as available for employment during the summer vacation from their course of study. Full time single students with responsibility for a child and/or young person will therefore be able to claim Jobseeker’s Allowance (JSA) during the summer vacation providing that they satisfy the other conditions of entitlement.”

7. That special rule may or may not apply on the facts of this case. However, there is again sufficient here to justify giving permission to appeal.’

6. In a helpful submission Ms Helena Thackray, for the Secretary of State, supports the appeal on the basis that the tribunal failed to consider the possibility that the special rule for lone parents in regulation 15 of the Jobseekers Allowance Regulations 1996 applied. She also suggests that it is not clear whether the Appellant could claim the advantage of that special rule and so the case should go back to a new tribunal for re-hearing.

7. The Appellant in reply makes three points: (i) the case has gone on for far too long; (ii) she always declared her status correctly and her son was at school and then went on to college; and (iii) she does not want an oral hearing before the Upper Tribunal as it is difficult for her to get time off work.

8. I conclude that the FTT erred in law as the special rule for lone parents was not considered. I therefore allow the Appellant’s appeal and set aside the FTT’s decision. I recognise that the tribunal was faced with a particularly poor and unhelpful set of papers from the Jobcentre office in question.

The Upper Tribunal’s decision on the substantive appeal

9. I could send the matter back to a fresh tribunal, as Ms Thackray suggests. However, I doubt very much whether any new FTT will have any better evidence about the period in issue than I do. I also take into account the points made by the Appellant. I bear in mind also that the Appellant has the issue of a possible housing benefit overpayment for the 2010 summer period in question “hanging over her head”. It is therefore appropriate for me to go ahead and decide the case on the basis of the evidence that we do have.

10. Ms Thackray helpfully records that the Appellant was paid JSA from 24 July 2009 to 7 September 2009 and also again from 6 July 2010 to 6 September 2010. This is, of course, entirely consistent with what the Appellant told me at the oral hearing of her application. She stressed then that she was only concerned with the summer holiday periods, as she understood that the position was different during the rest of the year because of the way student finance was apportioned across the year for benefit purposes.

11. On the balance of probabilities, based on what the Appellant reports, I find that her son was a qualifying young person in both the summer of 2009 and in the summer of 2010. On that basis for both summers the Appellant met the conditions for the special rule in regulation 15(2) as a student who was a lone parent.

12. Accordingly, the decision that the First-tier Tribunal should have made, and which I now make, is as set out above at the head of this decision.

Conclusion

13. The decision of the First-tier Tribunal involved an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). I also re-make the tribunal’s decision (section 12(2)(b)(ii)) in the terms set out above. 

Signed on the original Nicholas Wikeley

on 25 October 2013 Judge of the Upper Tribunal