IN THE UPPER TRIBUNAL Case No: CJSA/4684/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (the tribunal) sitting at Preston on 27 May 2014 under reference SC075/13/02760 involved the making of an error on a point of law. The tribunal’s decision is set aside and, pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, I remake the decision and determine that the Appellant had good reason for failing to comply with the Jobseeker’s Direction given to him on 28 October 2013.

 

 

REASONS FOR DECISION

 

The Issue in this Appeal

 

1.        The issue in this appeal is whether a claimant should have been subject to a sanction for an alleged failure or refusal to carry out a Jobseeker’s Direction pursuant to section 19A(2)(c) of the Jobseeker’s Act 1995. For the reasons which follow, I have decided that the tribunal erred in law in upholding the Respondent’s decision to impose a sanction because it failed to address part of what section 19A(2)(c) requires, namely whether there was a failure or a refusal by the Appellant to carry out the Jobseeker’s Direction. I have consequently exercised my powers to remake the tribunal’s decision in the Appellant’s favour.

 

2.        For this Appellant the consequences arising from the imposition of a sanction were very serious. Had both the tribunal and the Respondent paid adequate attention to the relevant law and to all of the circumstances in this case, there would have been no need for the cost to the public purse of this appeal. Equally the Appellant would not have had to contend with the financial difficulties and anxiety caused by the imposition of a sanction.

 

Factual Background

 

3.        The Appellant is a 53 year old man with four children to support. He has difficulty hearing and thus wears a hearing aid in his right ear. The Appellant’s hearing problem was known to the Respondent prior to October 2013. He was claiming Jobseeker’s Allowance at the relevant time.

 

4.        On 28 October 2013 the Appellant attended at the Job Centre Plus office  and he was told that he was required to attend and complete a CV writing course with Learn Direct on 30 October 2013 from 11.15 am to 12.15 pm. He was given a letter to confirm the time and date of that appointment and he signed a copy of that letter to confirm that he had received it. That letter constituted a Jobseeker’s Direction to the Appellant.

 

5.        On 30 October 2013 the Appellant arrived at the course ten minutes late. He was told that he was too late and was deemed to have missed his appointment. He immediately went to the Job Centre Plus office to explain his mistake and to rebook an appointment to attend the CV writing course with Learn Direct. On 31 October 2013 the Appellant stated that he had misheard the time of the appointment as being 11.50 am instead of 11.15 am.

 

6.        On 11 November 2013 the Respondent determined that the Appellant did not have good reason for failing to carry out his Jobseeker’s Direction and imposed a sanction for four weeks from 6 October 2013 to 3 December 2013. The Appellant sought a mandatory reconsideration on 6 December 2013 because the sanction was causing him financial hardship. The decision remained unchanged following that mandatory reconsideration and on 18 December 2013 the Appellant appealed.

 

7.        In his notice of appeal the Appellant stated that he had misheard the date of the appointment as 11.50 am as this was the time he usually signed on. He was not wearing his hearing aid as it was faulty. He said he did not think to check the time of his appointment by looking at the letter he had been given as he honestly thought it was the same time as the previous two appointments he had been given. He had reported his error straight away and rebooked and completed the Learn Direct CV writing course.

 

The Tribunal Hearing

 

8.        A tribunal hearing took place on 27 May 2014 and the Appellant gave oral evidence at that hearing. The tribunal dismissed the appeal and confirmed the Respondent’s decision that the Appellant did not have good cause for failing to carry out his Jobseeker’s Direction.

 

9.        In deciding whether the Appellant had good reason for his failure to attend the CV writing course on time, the tribunal took into account first that he had not asked the employment officer to repeat the time of the appointment even though he claimed he had a hearing problem and second that he had not checked the time of his appointment by reading the written notification he had been given [paragraph 9, Statement of Reasons].

 

10.     The tribunal accepted that:

“… [the Appellant’s] failure to attend on this appointment was a genuine error. It also found, however, that a genuine error does not amount to a good reason and that it was incumbent upon [the Appellant] to take reasonable steps to ensure that he attended punctually on his appointment as required. The tribunal found that [the Appellant] had not taken any such steps to confirm the time of his appointment and therefore did not have good reason for not attending on time…”

 

11.     Now represented by a welfare rights worker, the Appellant made an application for permission to appeal which was refused by the First-tier Tribunal. That application was renewed to the Upper Tribunal and I granted permission to appeal on 14 January 2015.

 

12.     The Respondent supports this appeal on the basis that the First-tier Tribunal erred in law and invites me to set aside the tribunal’s decision and substitute my own decision, namely that the Appellant had good reason for failing to comply with the Jobseeker’s Direction. The Appellant supports this submission.

 

The Relevant Law

 

13.     Section 19A(2)(c) of the Jobseeker’s Act 1995 provides that a claimant will be subject to sanction if he:

“without good reason refuses or fails to carry out a Jobseeker’s Direction which was reasonable having regard to his circumstances”.

A Jobseeker’s Direction is defined in section 19A(11) of the Jobseeker’s Act 1995 as being:

“a direction given by an employment officer with a view to achieving one or both of the following (i) assisting the claimant to find employment or (ii) improving the claimant’s prospects of being employed”.

 

14.     The phrase “good reason” is not defined in the legislation and case law has avoided setting out hard and fast rules on it for all circumstances. Good reason essentially depends on all the circumstances of the case. The Respondent’s Decision Maker’s Guide [Volume 6 Chapter 34 on sanctions] instructs decision makers to have regard to all relevant information about a claimant’s circumstances and the reasons for the claimant’s actions or omissions [paragraph 34200] and to consider each case on its own merits [paragraph 34206]. Paragraph 34223 invites the decision maker to seek further evidence where necessary especially where the claimant has a history of previous failures or is, for example, homeless or a victim of domestic violence.

 

15.     A first sanction for failure to comply with a Jobseeker’s Direction has the effect of reducing the claimant’s benefit for a period of four weeks [Regulation 69A(1)(a) of the Jobseeker’s Allowance Regulations 1996]. The amount of the sanction is 100% of the allowance payable to the claimant [Regulation 70(1)(a) of the Jobseeker’s Allowance Regulations 1996]. In other words a claimant will loose all his/her Jobseeker’s Allowance for four weeks the first time he/she is sanctioned. There is no discretion in the legislation as to the length or amount of a first sanction.

 

Discussion

 

16.     The Respondent submits that the tribunal erred in law in arriving at its decision. He states that, when making a decision about good reason, all relevant information about a claimant’s circumstances and their reasons for their actions or omissions should be taken into account. The facts of the case “should be considered as to whether it would have caused a reasonable person to act as the claimant did”.

 

17.     The Respondent draws my attention to the following:

“… [the claimant] has stated that he genuinely thought that he heard the employment officer say that he needed to attend the appointment at 11.50 am on 31/10/13 and therefore had not read the written notification. The claimant stated that he has a hearing problem and wears a hearing aid which has previously been recorded on LMS (see page 10 of the bundle). The claimant further stated that he has attended all other appointments as requested and that as soon as he had realised his error, he immediately attended the Jobcentre and rearranged the appointment which he has since attended…”

 

18.     The Respondent further submits that the tribunal erred in law though he does not identify any specific matter amounting to an error of law. He then points to the Appellant’s age, hearing problem and the lack of any history of past failure to comply. He comments that it would be inherently improbable that this Appellant would have deliberately attended the appointment ten minutes late and submits that this was a genuine and honest mistake amounting to good reason in these circumstances.

 

19.     It seems to me that the Respondent’s concession is really aimed at whether there was a failure by the Appellant to carry out the Jobseeker’s Direction given to him on 28 October 2013. In essence, the Respondent acknowledges that it was disproportionate, in the circumstances of this case, to treat being 10 minutes late for a CV writing course as amounting to a failure to carry out a JSD.

 

20.     Section 19A(2)(c) requires a decision maker to have regard to three matters which it ought to approach in this logical sequence: (a) was the Jobseeker’s Direction reasonable having regard to the claimant’s circumstances; (b) was there a failure or refusal to carry out the Jobseeker’s Direction and (c) was there good reason for such failure or refusal. All of those matters require a decision maker to have regard to all the circumstances in each individual case.  I note that the first of those matters is not in issue in this case.

 

21.     On one analysis, the Appellant was in breach of his Jobseeker’s Direction because he was 10 minutes late and further he did not have good reason for being late as he should have looked at his letter of appointment to check the time the CV course began. This analysis was essentially that set out in the tribunal’s reasons. If that is correct, how might the tribunal be said to have erred in law?

 

22.     The answer to that question lies in whether the tribunal paid proper regard to the second matter in section 19A(2)(c), namely whether what occurred amounted to a failure or refusal to carry out the Jobseeker’s Direction. In this case it is apparent that the tribunal failed to consider this second matter at all. The Statement of Reasons recorded that “the issue before the tribunal was whether or not the Jobseeker’s Direction was reasonable and if so whether or not [the Appellant] showed good reason for his failure to attend punctually on his appointment” [paragraph 4]. The tribunal found in paragraph 8 that the Jobseeker’s Direction was reasonable in all the circumstances and in paragraphs 9 and 10 the tribunal decided that the Appellant did not show good reason for his failure to attend.  Nowhere did the tribunal consider whether what occurred in this case amounted to a failure or refusal by the Appellant to carry out the Jobseeker’s Direction and I thus conclude that it thereby materially erred in law. This error alone is sufficient in my view for this appeal to be allowed and for me to set aside the tribunal’s decision and to remake it myself.

 

23.     Having found that a claimant has either refused or failed to carry out a Jobseeker’s Direction, the decision maker is then enjoined by section 19A(2)(c) to consider whether a claimant has good reason for any failure or refusal. Again regard must be had to all the circumstances and the Respondent submits that a decision maker should consider whether those circumstances would have caused a reasonable person to act as the claimant did. If this “reasonable person” is one with the characteristics of the claimant in question, I would accept this submission by the Respondent.

 

24.     In this case the tribunal found that the Appellant could have checked the time of his appointment by reading the letter. There is no dispute that he could read English. It seems to me that this is a finding properly made by the tribunal which is not in error of law.

 

25.     However the tribunal also found that, if he had a hearing problem, the Appellant should have asked the employment officer to repeat the time of the appointment to make sure that what he had heard was correct. This reasoning strikes me as being flawed. If the Appellant – or indeed any person hard of hearing - believed he had heard what the employment officer said correctly, it is unreasonable to expect him to ask that person to repeat everything said just in case he had not heard it properly. By relying on that factor in reaching its conclusion that good reason had not been shown, I find that the tribunal materially erred in law.

 

26.     For all the above reasons, I conclude that the tribunal made material errors of law in coming to the conclusion that it did. Thus I set its decision aside.  

 

Remaking the Decision

 

27.     I am satisfied that I can substitute my own decision for that of the tribunal in this case. The Respondent has also conceded that I should substitute my own decision in the Appellant’s favour. The facts and circumstances are sufficiently recorded to allow me to do so.

 

28.     Having regard to all the circumstances, did the Appellant’s late arrival at his CV writing course amount to a failure or a refusal to carry out his Jobseeker’s Direction?  First, the Appellant did not refuse to carry out his Jobseeker’s Direction: he was merely 10 minutes late in attending the course. As the Respondent submits, it was inherently improbable that this Appellant would have deliberately attended late given his past record of compliance.

 

29.     Second, the Appellant’s late arrival was accepted by both the Respondent and the tribunal to have been a genuine error. Third, the Appellant reported his late arrival to the Job Centre that same day and rebooked the CV writing course which he subsequently completed.

 

30.     Set against these matters is the Appellant’s late arrival contrary to the terms of his Jobseeker’s Direction. However I find that it would be disproportionate to conclude that this factor in isolation was sufficient to amount to a failure by the Appellant to carry out his Jobseeker’s Direction.

 

31.     I thus conclude that there was no refusal or failure by the Appellant to carry out the Jobseeker’s Direction given to him on 30 October 2013.

 

 

 

Gwynneth Knowles QC

Judge of the Upper Tribunal

14 August 2015.

 

[signed on the original as dated]