Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CJSA/4451/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision setting aside the decision of the decision maker dated 23 January 2014 imposing a sanction for the period 17 January 2014 to 17 April 2014 (both dates included).

REASONS FOR DECISION

1.    The claimant was in receipt of jobseeker’s allowance.  The evidence before the tribunal was that she had been required by letter dated 9 January 2014 to take part in a work programme on 15 January 2014.  She had not attended and the decision maker had determined that her non-attendance was a failure to participate without good excuse.  The tribunal, at a paper hearing, agreed with this analysis.  It rejected the claimant’s contention that she had not received the letter.

2.    Had the letter been correctly addressed, I would have had no difficulty in dismissing this appeal.  However, the tribunal failed to notice that it was not correctly addressed and in failing to deal with this point it was in error of law.  Although the letter included in the address the correct first line and post code, instead of being address to the claimant at that address simply in Wigan, or in the district in Wigan where she lived, it was addressed to her at Hindley Green, some 6 miles from where she in fact lived.  This appears to have been a straightforward unexplained error by either the DWP or Seetec, which was the company running the work programme.  Other correspondence to the claimant had been properly addressed and the evidence suggests that it had often been returned with abusive messages by the claimant, but there is no suggestion that this letter was returned and the claimant appears to have stated in response to an enquiry on 15 January that she had not received the letter (file, p.21).

3.    The letter is stated to have been issued on Thursday 9 January 2014 and posted by first class post.  I am unclear from this whether it was actually posted on 9 January or placed in an out tray for posting that day.  As it is often the practice, post may have been collected for posting around mid-afternoon, so that if it arrived in the out tray after that time, it would not have been posted until the following day, Friday 10 January 2014.

4.    Even then, had it been correctly addressed, it would have been expected to arrive by the following Monday or Tuesday, 13 or 14 January, and regulation 2(2) of the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 provides that for the purpose of those Regulations where a written notice is given by sending it by post it is taken to have been received on the second working day after posting.  That must pre-suppose, however, that it was correctly addressed.

5.    I accept the submission of the representative of the Secretary of State on this appeal that even with the incorrect address Royal Mail would have had little difficulty in working out the correct address and delivering the letter.  The question is how long that would have taken.  Depending on the procedures adopted at Royal Mail and the speed with which they were adopted, it could have been virtually instantaneous but it could also have taken several days.

6.    I am satisfied that, on the balance of probabilities, this letter did not reach the claimant by 15 January 2014 in time for her to know that she was required to attend the work programme and when and where she was to go to do so.  I am not satisfied that even if the letter had arrived in the ordinary course of the post on 15 January, whenever that may have been, it would have done so in sufficient time to enable her to keep that appointment.   

7.    It does not appear to me that there can be any failure to attend an interview of which the claimant was not told until after the event, but even if that were to be categorised as a failure it is one for which there is plainly good cause.

8.    I suspect that the misaddressing of the letter is a windfall for the claimant, who may very well have refused to go to the appointment in any event.  However, it does not appear to me that where a letter is misaddressed and may as a result have arrived too late for an appointment to be attended, the question of whether there is a failure to attend or a good cause for that failure should turn on the likelihood of the recipient paying any attention to it if it had arrived on time.  It is for the DWP and Seetec to ensure that letters to claimants are properly addressed and posted early enough to reach the claimants in good time.

(signed) Michael Mark

Judge of the Upper Tribunal

9 June 2015