Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CJSA/5376/2014

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Rochdale on 4 August 2014. For the reasons set out below that decision was in my judgment wrong in law and I allow the appeal and set it aside. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I re-make the First-tier Tribunal’s decision as follows:

The Claimant’s appeal against the decision of the Secretary of State made on 5 November 2013 is allowed. That decision is set aside. The Claimant was not disentitled to jobseeker’s allowance in respect of the period 22 October to 6 November 2013.

2. The Claimant was in receipt of JSA from 17 April 2012. He signed a Jobseeker’s Agreement (JSAgt) on 20 April 2012. On 10 October 2013 he was asked to sign a “Claimant Commitment”, which the local office intended would replace the JSAgt – i.e. would operate as a variation of it. The Claimant was unwilling to sign it on that date, and asked for time to consider it. On 22 October 2013 it was presented to him again for signature, but he refused to sign it. There has been some debate as to whether he took issue with the principle of being asked to sign a new agreement at all, as opposed to with the particular terms of the new agreement. I proceed on the footing that his refusal was based to some extent at least on the terms of the new agreement, as I do not think that it is established on the evidence that he was content with all the terms of the new agreement. For example, he pointed to the provision in the new agreement that he was to spend 35 hours per week looking for work (p.35).

3. The matter was then referred by the local office to a decision maker, who on 5 November 2013 made a decision that the Claimant “had not, and cannot be treated as having, entered into a Jobseeker’s Agreement which remained in force from 22 October 2013 to 6 November 2013 (both dates included).” It was considered that the effect of that decision was that in respect of that period the Claimant was not entitled to JSA, because he did not fulfil the condition in s.1(2)(b) of the Jobseeker’s Act 1995 that he had entered into a JSAgt which remained in force. The reason for the period of disentitlement being expressed to end on 6 November 2013 was that on 7 November 2013 he did (under ‘duress’ as he contends) sign the Claimant Commitment. (It is something of a mystery as to how the decision maker could have known, on 5 November, that the new agreement would be signed on 7 November. Plainly he could not have known, and I think that the terms of the decision said to have been made on 5 November must in fact have been restated at some time after 5 November, but nothing turns on that).

4. The First-tier Tribunal dismissed the Claimant’s appeal against the decision of 5 November 2013. The Tribunal regarded the critical issue as being whether the Claimant had good reason for his failure to sign the Claimant Commitment, and it found that he did not: see paras. 7 and 15 of the Statement of Reasons.

5. In my judgment, as the Secretary of State in supporting this appeal accepts, the First-tier Tribunal’s decision was wrong in law in that the Tribunal did not correctly identify or apply the relevant statutory provisions.

6. In my judgment the mere fact that the Claimant had refused or failed to sign the proposed new JSAgt did not entitle the decision maker to terminate, or treat as no longer in force, the original JSAgt which had been signed on 20 April 2012, whether or not that failure or refusal was for good cause. In my judgment the procedure required by s.10 of the Jobseekers Act 1995 was that the local office (i.e. the “employment officer”) could refer the terms of the proposed new JSAgt to a decision maker to determine what those terms should be. Such a determination would in effect operate as a direction to the Claimant to enter into a new JSAgt in those terms: see s.10(6)(b) of the 1995 Act. If the Claimant then failed to do so within 21 days (see reg. 38 of the Jobseeker’s Allowance Regulations 1996), the decision maker was then empowered to make a further decision bringing the original (and still subsisting) JSAgt to an end: see s.10(6)(c).

7. In the present case there was no decision by the decision maker as to whether the terms of the new JSAgt were appropriate (and if not how they should be amended), and neither was the Claimant given 21 days, from the date of such a decision, to decide whether to sign a new JSAgt in the terms decided by a decision maker to be appropriate.

8. It follows, in my judgment, that the original JSAgt continued in force in the present case, and the decision that the Claimant was disentitled to JSA in respect of the period 22 October to 6 November 2013 was wrong. There was no basis for it.

9. The Secretary of State submits that, the First-tier Tribunal’s decision falling to be set aside as wrong in law, I should remit the Claimant’s appeal to a new First-tier Tribunal. However, there is in my judgment no purpose in doing that, as the outcome is inevitable. It is therefore appropriate for me to re-make the First-tier Tribunal’s decision in the terms set out in paragraph 1 above.

10. The Claimant has argued quite a number of other points in his grounds for this appeal and his response, and previously, but I do not consider that it is necessary to consider them in order to dispose of this appeal.

Charles Turnbull

Judge of the Upper Tribunal

6 October 2015