Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No.   CJSA/544/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Paula Gray

 

The decision of the Upper Tribunal is to dismiss the appeal.  The decision of the Poole Tribunal made on 18 December 2014 under number SC 238/14/00515 stands.

 

This decision is made under section 12 of the Tribunals Courts and Enforcement Act 2007

 

REASONS FOR DECISION

Background

 

1.            The case concerned a decision made by the Secretary of State on 15 October 2013 which disallowed the appellant’s Jobseeker’s Allowance on the basis that she had not been actively seeking employment in the period prior to her recent signing.

2.            The First-Tier Tribunal (FTT) heard the appeal on 18 December 2014 and confirmed the decision of the Secretary of State.  The appellant asked for a full statement of the facts and reasons of the tribunal, following the receipt of which permission to appeal was sought from the District Tribunal Judge who had heard and dismissed the appeal. He granted permission observing that there was an arguable point of law for the Upper Tribunal to decide. That is how the matter comes to me as an appeal.

3.            I gave directions for submissions which are now to hand. Neither party has requested an oral hearing and the matter is one which can be fairly decide upon the basis of the information that I currently have.

 

The case before the FTT

 

4.            The decision had concerned the attempts that the appellant had been making to seek work or, as the legal terminology has it, whether or not she was actively seeking employment (ASE).

5.            There was no dispute as to the facts below, and the issue was to me a novel one, the appellant’s case being that she had been actively seeking work during the relevant period, not in the UK, but in China.  She is a research scientist who holds two PhDs and was most recently employed in the UK as a laboratory assistant between August 2009 and February 2013.

6.            She explained that until early September 2013 she had been looking for jobs in the UK in her field including vacancies in research to which the job centre had referred to her, and also in more general employment. She said that she had been rejected by potential employers for more menial work on the basis that she had insufficient relevant experience.  She had been receiving JSA, presumably on the basis that she had been ASE from the date of her claim.

7.            The position changed, however when her JSA entitlement was discontinued from 27 September 2013, which is the first day of the job seeking period in which the decision was made, on the basis that the steps she was taking were insufficient to give her the best prospects of finding employment.

8.            She accepted that during that period she had not been looking for jobs in the UK, but she had continued to search for work in China.  She did this over the Internet, and had arranged for two interviews there and bought an airline ticket to attend.  The question is whether this was sufficient to enable her to continue her entitlement to JSA.

9.            The District Tribunal Judge posed and answered that question in his statement of reasons a paragraph 10 and 11

 

“Were the steps which the appellant talked during the fortnight in question the ones which gave her the best prospect of finding employment? She has understandably been discouraged by the outcome of her job applications in the UK. It was always possible that her qualifications and experience would enable her to secure a job in China rather than in the UK, particularly as English is not first language. However, given that she was resident in the United Kingdom it is difficult to conclude that applying vacancies in China gave her a better prospect of finding employment than seeking and applying for jobs in the UK…. I conclude that, although the appellant was perfectly entitled to take steps to find employment in China, she should also have continued to seek work in the UK, for example, by checking the universal job match site, applying the UK vacancies in contacting potential employers.”

 

The grant of permission

 

10.         The District Tribunal Judge granted permission to appeal setting out two questions.  In the first he modestly questions whether he made adequate enquiry into her job search in China in order to determine whether the steps she had taken to find work there were the steps which gave her the best prospects of finding employment; if the answer to that question was in the negative, he asked in a second question whether his decision should stand given further information that the appellant disclosed in her application for permission to appeal. That information related to the practical difficulties that she was having in relation to finding work in China with regards to her age, then 53, and obtaining a work permit there. It also related to the potential for her health which it seems had been problematic during periods when she had been neither working nor studying.

11.         I can answer the first of his questions by saying that the enquiry was sufficient; I take the view that this interesting question turns on a narrow point of law which obviates the need for any wider enquiry.

 

The appeal before me

 

12.         As I indicated the parties made their written submissions and did not seek an oral hearing.  The appellant maintains her argument that her job search in China was genuine and sufficient; the Secretary of State argues that job searching abroad cannot be sufficient because of the legislation which governs entitlement to jobseekers allowance.

 

The legal position

 

13.         Fatou John, acting for the Secretary of State, puts the matter in this way.

14.         The issue before the FTT was whether the appellant was actively seeking employment between 27 and September 2013 and 10 October 2013, and whether the steps that she took during that period were sufficient to afford the best prospects of securing a job.

15.         Under her jobseekers agreement she was to look for work by calling one employer weekly; visiting an employer weekly, sending out letter of application weekly and checking her Universal Jobmatch (UJ) account three times a week for available jobs.

16.         She gave an account of extensive contact with Chinese job websites and other connections, and job applications there.  There is no reason to doubt these efforts or her real reluctance to remain on benefit but she restricted her job search to the Chinese market during that time.

17.         Entitlement to JSA is partly conditional on the claimant actively seeking employment; this is specifically set out at section 1 (2) (c) Jobseekers Act 1995. 

18.         Section 7 of the same Act concerns the concept of actively seeking employment:

 

7 (1) for the purposes of this  Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment.

 

19.         I take up the argument at that point.

20.         Section 7 (1) defines ASE as having the aim of securing “employment”; it is therefore important to look at what employment is for the purposes of the JSA legislation.

21.         Section 7 (8) reads

 

7 (8) For the purposes of this section—

“Employment means employed earner’s employment or, in prescribed circumstances –

(a)   self employed earner’s employment; or

(b)   Employed earner’s employment and self-employed earner’s employment;

(c)   And “employed earner’s employment” and “self-employed earner’s employment” have the same meaning as in the Benefits Act. 

 

22.         The interpretation section of the Jobseekers Act is section 35.  This explains that the Benefits Act is the Social Security Contributions and Benefits Act 1992 (SSCBA). Section 2 (1) of the SSCBA defines an employed earner:

 

(a)” employed earner” means a person who is gainfully employed in Great Britain either under a contract of service, or in an office (including elective office) with general earnings…

(b) "self-employed earner" means a person who is gainfully employed in Great Britain otherwise than in employed earner’s employment (whether or not he is also employed in such employment).

 

23.         The Secretary of State argues that in actively seeking employment the appellant needed to show that she had taken steps to find work in Great Britain. I agree

 

My decision

 

24.         In view of the definition of an employed (or a self-employed) earner it seems to me to be beyond doubt that the concept of actively seeking employment under section 7 of the Jobseekers Act 1995 is activity towards obtaining  employment in Great Britain.

25.         Whilst, as the District Tribunal Judge quite properly pointed out, the appellant was perfectly entitled to look for work in China, that aspect of her job search did not assist her in showing, as she was required to do on a regular basis, that she had been actively seeking employment within the terms of her jobseekers agreement and the law governing it.

26.         Accordingly the decision of the First-Tier Tribunal is correct as a matter of law, and it continues to be of effect.

27.         It may be noted that the SSCBA speaks of employment in Great Britain, but I have also used the terminology of the submission before the FTT, continued in the submission of the Secretary of State before me which refers to the appellant’s job search in the UK. If there is a distinction between the two statutory or geographical concepts in this context, given the acceptance of there being no relevant job search in these islands at the material time but only a search in China, it is one with which I do not need to deal.

 

 

 

(Signed on the original) Paula Gray

 

Judge of the Upper Tribunal

 

26 August 2015