Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CJSA/1073/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before M R Hemingway: Judge of the Upper Tribunal

 

Decision: The decision of the First-tier Tribunal sitting at Brighton on 28 July 2014 under reference SC177/13/07778 involved an error of law and is set aside.

 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

 

This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

Subject to any later directions by a District Tribunal Judge of the First-tier

Tribunal, the Upper Tribunal directs as follows:

 

(1) The appeal should be considered at an oral hearing at a venue convenient for the appellant.

(2) The appeal shall take place before a completely differently constituted tribunal to that which heard the appeal on 28 July 2014.

 

(3) The respondent is directed to send to the tribunal, within one month of the date of the issuing of this decision, a copy of the decision which was apparently made at some point between 28 March 2013 and 11 July 2013 to the effect that the appellant’s claim for jobseekers allowance was to be “closed”; a copy of any notification of that decision which was sent to the appellant; a copy of the decision of 12 July 2013 and a copy of the letter written by the appellant and which was received by the respondent on 25 March 2013.  If, however, some or all of this documentation is no longer available the respondent should confirm so within the above timeframe.

(4) If the appellant still has the originals or copies of any of the documentation referred to in (3) above, she too is directed to provide the tribunal with copies within the above timeframe.

(5) If either party has further written material to place before the tribunal (other than that specifically directed to be produced above) that should be sent to the appropriate tribunal office within one month of the issuing of this decision.

 

 

 

 

REASONS FOR DECISION

 

 

The decision in summary

 

1. This is the appellant’s appeal to the Upper Tribunal against the decision of the First-tier Tribunal (F-tT) made on 28 July 2014.  My decision is that the F-tT’s decision involved an error of law.  I allow the appeal to the Upper Tribunal and set aside the F-tT’s decision. The appeal against the Secretary of State’s decision apparently dated 12 July 2013 will have to be re-heard by a new tribunal.

 

 

The background

 

2. The factual background is less clear to me than it might have been.  This is because the Upper Tribunal was unable to obtain a copy of the appeal papers from the First-tier Tribunal. The appellant has not been able to provide any relevant paperwork. The respondent has helpfully provided copies of at least some of the documentation which will have been before the F-tT but I cannot be certain as to whether some may still be missing.  Further, much of the paperwork provided by the respondent relates to different appeals which the appellant has pursued regarding other decisions made by the respondent concerning her claim for jobseeker’s allowance.

 

3. Be that as it may, it is apparent that the appellant applied for jobseeker’s allowance and it was decided that she satisfied the entitlement conditions.  However, she was required, on 21 March 2013, to provide a signed declaration concerning her availability for employment and, it is not disputed, she did not do so.  She says that this was because of concerns she had regarding the way in which she and, as I understand it, other claimants were being treated by staff at her local Jobcentre.

 

4.  It was accepted that she had written a letter which had been received, by the respondent within five days after she had been due to make her signed declaration (the letter having been received on 25 March 2013) asking whether, as a result of her concerns, she could be permitted to sign by post instead of having to attend in person.  It appears likely that she would have set out her misgivings about the Jobcentre staff and her claimed treatment, in that letter, but I do not have a copy of it before me.  It is indicated that, after some further correspondence including a further letter she sent to the respondent on 28 March 2013, a decision was taken to “close” her claim.  I am not sure when that decision was taken and there is no copy of it before me.  The appellant then sought to reclaim jobseeker’s allowance on 9 July 2013 and asked for her claim to be backdated to 8 March 2013 (she not having been paid for any period after 7 March 2013).  On 12 July 2013, (though there is no copy of this decision before me) the respondent says a decision was taken to the effect that the appellant was entitled to jobseekers allowance in respect of the new claim but that backdating was to be refused.  The respondent’s submission for the purposes of the appeal to the F-tT said it had been decided the appellant was not entitled to Jobseeker’s Allowance for the period from 8 March 2013 to 8 July 2013 because she had failed to provide a signed declaration on 21 March 2013 and had not, within the next five working days, provided “good cause” for that failure.  Those considerations seem to relate to the earlier decision to “close” the claim but it may be the respondent was simply saying the claim had been properly ended earlier so that there was no scope for any backdating.  In fact, backdating, or to be technically correct the extending of the time for claiming, is governed by regulation 19 of the Social Security (Claims and Payments) Regulations 1987.  In the case of jobseekers allowance regulation 19(5) and 19(7) contain the prescribed circumstances in which backdating (I shall continue to use the phrase for convenience) is to be permitted subject, depending on the circumstances arising, to a maximum of either one month or three months.  It does not seem obvious, on the facts as I understand them, that the appellant would be able to bring herself within any of those quite strictly defined criteria.

 

5. I am not sure whether or not the appellant sought to make any challenge to the earlier decision to “close” her claim at the time it was likely to have been made.  The material before me does not seem to confirm that, in fact, a copy of such a decision was sent to her when it was made though, I appreciate, it may have been.  It is clear, though, that on 2 September 2013 she wrote to the respondent indicating she wished to appeal against the “decision to not backdate my jobseeker’s allowance” but that she was also raising the correctness of the decision to cease to pay her for her failure to sign.  Thus, whilst her letter of appeal was directed against the decision said to be have been made on 12 July 2013, it also put in issue the earlier decision.  Assuming that the decision not to backdate had been made on that date (12 July) and had then been promptly notified, it may have been that the appeal was out of time but, on the basis of the limited paperwork before me, none of that can be assumed and, in any event, no point has ever been taken on behalf of the respondent regarding lateness.  

 

 

The appeal to the First-tier Tribunal and that Tribunal’s decision

 

6. The appellant did not seek an oral hearing of her appeal. Nor did the respondent.  On 12 March 2014 directions were issued to the effect that the appeal was to be considered on the papers along with two other appeals the appellant had made concerning later and different jobseeker’s allowance decisions.  Thereafter, on 28 July 2014, having considered matters on the papers, the F-tT dismissed the appellant’s appeal against the decision of 12 July 2013.  I do not have before me a copy of the Decision Notice relating to that appeal although I do have one relating to one of the other appeals which had been considered at the same time (also dismissed). I do, though, have the F-tT’s statement of reasons for decision (statement of reasons).

 

7. The F-tT described the decision under appeal as being one to the effect that the appellant was not entitled to jobseeker’s allowance for the period from 8 March 2013 to 8 July 2013 because she had failed to provide a signed declaration and had subsequently failed, within five working days, to provide good cause for that failure.

 

8. The F-tT did mention the appellant’s letter of 25 March 2013 but it is not apparent, from what it said, that it actually had a copy of the letter in front of it.  It did not make any reference to the content of the letter merely the fact of it and, of course, it knew such a letter had been sent and received because the respondent’s submission had told it so.  It does not appear to have considered the possibility that there might have been something in the letter which would have been capable of constituting good reason for the failure to provide a signed declaration. By way of explanation for its decision the F-tT said this;

 

“10. The Tribunal noted that the appeal had a long history. In addition to the current appeal there were other appeals brought by [the appellant] as well as a formal complaint. However, the law provides that [the appellant] was required (under Regulation 24(6) Jobseeker’s Allowance Regulations) to provide a signed declaration. Having registered she was due to provide her next declaration on 21/03/2013. The facts are that she did not do this and she did not attend the Jobcentre within the five days required and did not reclaim Jobseeker’s Allowance until 09/07/2013.

 

11. In [the appellant’s] case her entitlement to Jobseeker’s Allowance ceased from 08/03/2013, the day after she last provided evidence showing that she was entitled. [The appellant] was required to provide her signed declaration on 21/03/2013 but this was not forthcoming. In the five days she did not provide the signed declaration as instructed. She then reclaimed on 09/07/2013. Good cause for the failure is inappropriate here and [the appellant’s] entitlement ceased during 08/03/2013 to 08/07/2013. The Secretary of State’s decision is correct in law.”

 

9. That, then, was why the F-tT dismissed the appeal.

 

 

The legislation

 

10. Section 8 of the Jobseeker’s Act 1995 authorises the making of regulations requiring claimants to provide information and evidence, as may be prescribed, regarding their availability for employment and the extent to which they are actively seeking employment.  That section also authorises the making of regulations which provide for cessation of entitlement to jobseeker’s allowance where there has been a failure to comply with such requirements.

 

11. Regulation 24(6) of the Jobseeker’s Allowance Regulations 1996 says that a claimant is required to provide a signed declaration where required by the Secretary of State and regulation 24(10) says that any such declaration should be provided on the day on which it is required.

 

12. The salient part of regulation 25 reads as follows;

 

Entitlement ceasing on a failure to comply

25. – (1) Entitlement to a Jobseeker’s Allowance shall cease in the following circumstances - …

(c) Subject to regulation 27, if that claimant was required to provide a

 signed declaration as referred to in regulation 24(6) and he fails to

 provide it on the day on which he ought to do so in accordance with

 regulation 24(10).

 

13. The relevant part of regulation 27 reads as follows;

 

Where entitlement is not to cease under regulation 25(1)(c)

27. – Entitlement to a Jobseeker’s Allowance is not to cease by virtue of regulation 25(1)(c) if, before the end of the period of five working days beginning with the first working day after the day on which a claimant (“C”) failed to provide a signed declaration in accordance with regulation 24(10), C makes contact with an employment officer in the manner set out in a notification under regulation 23 or 23A and shows that C had a good reason for the failure.”

 

14. Pausing there, I do not have a copy of any notification provided under regulation 23 (23A relates to couples and the appellant is single) but no point has been taken either in the submission to the F-tT or the subsequently received submission to the Upper Tribunal to the effect that a letter will not amount to making contact in the manner set out in the notification under regulation 23.

 

 

The proceedings before the Upper Tribunal

 

15. The appellant applied for permission to appeal to the Upper Tribunal. I granted permission to appeal because I thought it arguable that the F-tT had erred in failing to address the possible significance of the appellant having written the letter received on 25 March 2013.  The respondent, through Ms H Thackray, who now acts on behalf of the Secretary of State in connection with this appeal to the Upper Tribunal, has indicated that the appeal is supported. She urges me to remit to a new and differently constituted F-tT so that the decision may be re-made.  She does not seek an oral hearing before the Upper Tribunal. The appellant, in response to Ms Thackray’s submission has restated her concerns about her local Jobcentre. She has not sought an oral hearing before the Upper Tribunal either.

 

 

The Upper Tribunal’s reasoning

 

16. I have decided not to hold an oral hearing before the Upper Tribunal. In considering this matter I have reminded myself of the content of rules 2 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.  I have noted that neither party has sought such a hearing and that the matters in dispute seem clear and seem to have been sufficiently ventilated in the papers before me.  It is not apparent that an oral hearing before the Upper Tribunal would advance matters.

 

17. The F-tT did not consider the possibility (see above) that the appeal might have been out of time.  It did not have to.  That is because, given the date of the decision under appeal, rule 23(4) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules applied such that, given the stance of the respondent, either the appeal was in time or it fell to be treated as such bearing in mind the respondent had not asserted it was out of time and had not raised any objection to its admittance. 

 

18. The F-tT did not specifically address the point that the appeal appeared to have been directed not only against the decision of 12 July 2013 to pay jobseeker’s allowance from 9 July 2013 and not to backdate it, but also against the decision to cease or close the claim.  However, in practise, it did appear to regard the appeal as encompassing both and the F-tT’s submission appeared to impliedly accept that that should happen.  That seems to me, in the circumstances, to have been an approach clearly open to it.  . 

 

19. The F-tT, as noted above, does not appear to have given any consideration to the possibility that the appellant’s letter, which had been received within the timescale specified in regulation 27, might have contained information from her as to why she thought there was good reason for her failure to provide a signed declaration.  That letter, as also noted above, is not before me and, whilst I might be wrong about this, it does not appear to have been before the F-tT.  Nevertheless, it may well have contained potentially relevant information. It may well, indeed probably did, contain information emanating from the appellant as to why she had not provided a signed declaration.  As such, the appellant was entitled to have the content of that letter considered in the context of an assessment as to “good reason”.  In these circumstances it seems to me that the F-tT should have considered adjourning with directions in order to obtain the document (though I accept a copy may not now be available) and ought to have considered, despite the appellant’s reluctance to attend an oral hearing, to have directed one.  This would have enabled her to explain what she had said in the letter (assuming she can still recollect the contents) and to elaborate on the concerns she had set out in writing.  I appreciate that the F-tT indicated its view albeit very briefly in paragraph 2 of its statement of reasons, that it was in the interests of justice to proceed in the absence of the appellant but it did not explain why, in the face of what appears to have been a paucity of documentary evidence and the absence of what may well have been the key document, that was so.

20. In these circumstances, therefore, I do conclude that the F-tT erred in law. It did so by its failure to consider the implications of the letter having been written, the possible relevance of its content and the possibility of adjourning with directions in light of the possible relevance of the letter.  I would add that the F-tT committed some related errors in appearing to suggest, at paragraphs 10 and 11 of its statement of reasons (see above) that the requirement was for the appellant to attend the Jobcentre within five days (paragraph 10) or provide a signed declaration within five days (paragraph 11) rather than simply to show good reason,within that period, for the failure to provide a declaration.  The F-tT also referred to good cause rather than good reason, the latter being the test, though I accept if that is an error it is, in all probability, not a material one.

21. In light of the above I do set aside the F-tT’s decision.

What happens next?

22. I have considered whether I should simply go ahead and make the decision myself on the limited information before me.  I have decided on balance, not to do so because I think it possible that further documentary evidence might be supplied to a new F-tT in the event of remittal (though I am not certain about that) and because I think the appellant ought to be given an opportunity to attend an oral hearing and explain her concerns to a new F-tT in person.  I have, therefore, decided to remit to a new and differently constituted F-tT.

23. This means that there will be a fresh hearing before the new F-tT.  It will have to make its own findings and reach its own conclusions.  It will not be bound in any way by the findings and conclusions of the first F-tT. It will, I hope, be assisted by further documentation as a result of my above directions.  If not, however, I am afraid to say it will have to do the best it can with what it has.

24. The F-tT should first of all consider, in light of the information before it and any new information it might receive, whether a valid decision was ever taken to cease the claim.  The respondent clearly asserts it was but that is not apparent from the documentation before me. If nothing new can be provided then the F-tT may have to consider if it should simply accept the respondent’s word though, it should be noted, the appellant does not appear, at least to date, to have asserted no valid decision to that effect was ever taken.  If no such valid decision was taken then entitlement would have continued throughout the period in which the appellant has been seeking backdating.  If the new F-tT is satisfied such a decision was properly taken it will have to consider whether the appeal against the backdating refusal should also be treated as amounting to an appeal against the decision to cease the claim.  Since the respondent, by addressing that matter of the closed claim in the appeal submission, clearly seems to have impliedly accepted it was, that issue might not detain the new F-tT for too long unless new arguments are put to it by the respondent. If matters reach this stage then the new F-tT will have to consider whether or not the appellant did show good reason for her failure to sign.  If the F-tT decides not or decides that the appeal does not concern the decision to cease payment at all then it will have to consider whether backdating is possible under regulation 19 of the Social Security (Claims and Payments) Regulations 1987 (see above). 

25. The appellant will see that I have directed an oral hearing.  I am aware that she was reluctant to attend a hearing in the past because she thought it would be difficult to take time off work.  However, it does seem to me that if she wishes her appeal to be presented to its best advantage it would be in her interests to attend a hearing so that she can explain, in person, the difficulties she said she had at her Jobcentre and why it was that she did not provide the signed declaration.  She might also, given that she like the respondent has been unable to produce a copy of it (at least so far), be able to give oral evidence as to the content of her letter such as to enable the F-tT even if it does not have that document in front of it, to consider whether her oral recollection of its contents indicate that it did or did not identify good reason for the failure to provide the declaration.

26. I am aware that my decision has involved the identification of some issues not considered by the decision maker or the first F-tT and which may result in the task of the new F-tT being a little less straightforward than it might have been.  It does seem to me, though, and this is a tentative view because I appreciate I may not have all the documentation which the respondent had produced for the purpose of the initial appeal, that there was something of a lack of care in the decision making process and the presentation of the case to the F-tT.  In particular, it is concerning that the submission did not appear to fully set out the previous adjudication history (the ceasing of the claim), nor produce a copy of a potentially highly relevant document (the letter), nor produce a copy of the decision of 12 July 2013.  The first F-tT, for its part, and I appreciate that to some extent it may have been led into this by the respondent, did not appear to take a sufficiently critical or analytical approach to what it did and what it did not have in front of it.  I would simply stress that decisions which result in a claimant ceasing to have income can have potentially very serious consequences such that considerable care ought to be taken at all stages in the decision making process and the explanation of that process once an appeal is lodged.

Conclusion

27. This appeal to the Upper Tribunal, therefore, is allowed to the extent and for the reasons explained above.

 

(Signed on the original)

MR Hemingway Judge of the Upper Tribunal

Dated 11 September 2015