Before:  Upper Tribunal Judge Gray

DECISION

This appeal by the claimant succeeds. Permission to appeal having been given by me on 10 October 2013, in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting at Stockport North and made on 18 May 2012 under reference SC 944/11/04675 and remake the decision as follows;

The decision of the Secretary of State made on 29/10/2009 is set aside. The claimant is not subject to a sanction of his Jobseekers Allowance between 2/11/2011 and 15/11/2011. He has established that he had good cause for his failure on 13/10/11 to participate in the work programme to which he was assigned; there were no grounds to supersede the existing award of Jobseekers Allowance.

REASONS

1. The respondent supports this appeal; he agrees that the decision of the tribunal was made in error of law due to the matters which I highlighted in my grant of permission to appeal and suggests that I remake the decision in the appellant's favour. That is the appropriate course, for reasons which appear below.
2. The appellant asks for an oral hearing of the appeal, but I refuse that application because I am able to allow his appeal on the papers.

The background

3. The case concerned a sanction imposed upon the appellant for a failure to attend a course designed to improve his ability to obtain work. The appellant accepted that he had in fact failed to attend as directed; the issue for the tribunal was whether he had good cause for that failure.
4. The provision as to good cause is found in regulation 7(1) of the Jobseekers Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011:

7 (1) a claimant ("C") who fails to participate in the scheme That must show good cause about failure within five working days of the date on which the Secretary of State notifies C of the failure.

(2) the Secretary of State must determine whether C has failed to participate in the Scheme and, if so, whether C has shown good cause for the failure.

  (3) in deciding whether C has shown good cause for the failure, the Secretary of State must take account of all the circumstances of the case, including in particular C’s physical or mental health or condition." 

5. Regulation 8 deals with the consequences of failure to participate in the scheme, the sanction provisions.

The appellant’s reasons

6. The reason given by the appellant to the Jobcentre staff was that he did not want to go to the town in which the course was to take place. He had offered to attend a similar course elsewhere. The judge found that this did not amount to good cause for his failure to attend as directed, on the basis that it was unreasonable for him to choose where he would attend.
7. Whilst I do not argue with the principle that the claimant cannot pick and choose his work programme, the judge failed to give sufficient consideration to the reasons behind the appellant’s approach.
8.  The appellant's evidence to the first-tier tribunal was off his extreme fear of going to that particular town. The background to that fear was complex. It involved what he perceived to be a conspiracy on the part of the DWP and the police to suppress details of an incident or incidents in which he was subjected to both threats and physical violence. 

The error of law

9. It was no part of the role of the FTT to adjudicate upon the accuracy of those allegations, but the judge should have addressed the genuineness and extent of the fears described, and assessed the issue of whether the appellant had good cause for his refusal to attend the specified work programme in the light of his findings on those matters. The failure to do this constituted a material error of law, and the decision cannot stand.

My decision

10. I am able to decide this matter myself, rather than remitting it to a new FTT. . I heard the evidence of the appellant at the oral application for permission to appeal.  It replicated that given below. I make no comment as to the history of threats and violence that he describes, but I believe his fear of travelling to the town in question due to the risk of attack to be an honestly held belief. He has been consistent in his explanation from the outset. There is other evidence in the papers that the allegations, upon which I do not adjudicate, have been made before.  The persistence of his account and the fear that it has generated in him goes to its genuineness. In addition he had to go to the same town for his FTT hearing and made elaborate preparations to get there, leaving in the early hours of the morning to avoid detection; he was nonetheless fearful.  That is  a matter which occurred after the original decision under appeal, but I am able to take into account as evidence in assessing the genuineness of the fear because it sheds light on the appellant's state of mind at the relevant time. Although he was able to visit the town once for an important event he could not have done so repeatedly.  He had good cause for his refusal to attend the work programme there.
11. The appeal is allowed accordingly. This decision sets no precedent as to claimants being able to define the terms of their engagement with a work programme. It must be clearly understood that the issue here was not as to any rights in that regard, but the genuineness of the reason given for failing to attend at the course specified. The willingness to attend a course elsewhere was important not in relation to any dialogue with the Department as to the terms of engagement, but as corroboration of the genuine nature of the expressed fear. 

PA Gray

Judge of the Upper Tribunal  (signed on the original)

31 December 2013