Case Nos: CJSA/5538/2014

CJSA/5539/2014

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

Decision:  The appeals are allowed. The decisions of the First-tier Tribunal (the tribunal) sitting at Chester on 8 September 2014 under references SC065/14/00409  and SC/065/14/00409 involved the making of an error on a point of law. The tribunal’s decisions are set aside and the cases are remitted to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out at the conclusion of the Reasons below.

 

 

REASONS FOR DECISION

 

 

1.        On 16 April 2014 the Secretary of State decided to disallow the Appellant‘s award of Jobseeker’s Allowance [JSA] for not actively seeking employment for the period 26 March 2014 to 8 April 2014. A sanction was subsequently applied to the Appellant’s new award of JSA for the period 9 April 2014 to 24 June 2014. Both these decisions were appealed by the Appellant and on 8 October 2014 (pages 28-29 in CJSA/5538/2014 and 34-35 in CJSA/5539/2014) the tribunal gave its reasons after a hearing of these appeals on 8 September 2014. The tribunal confirmed both decisions by the Secretary of State. These are the Appellant’s appeals from the tribunal’s decisions.

 

2.        Following my grant of permission to appeal, the Secretary of State has filed submissions supporting both appeals and inviting me to set aside the tribunal’s decision and remit both matters for rehearing (pages 65-68 in CJSA/5538/2014 and pages 71-73 in CJSA/5539/2014). The Secretary of State accepts that the decision to impose a sanction is reliant upon the outcome of the appeal in respect of the disallowance of JSA for not actively seeking employment.

 

3.        The Appellant has filed submissions in which he objects to the course suggested by the Secretary of State and asks me to find in his favour by allowing both his appeals without the need for remittal to the tribunal.

 

4.        The Appellant has asked to have an oral hearing of these appeals on the basis that “issues are sometimes easier to address through an oral hearing”. However he adds that “I can’t see that another hearing would be necessary in this case”. I have taken the latter comment to refer to the Secretary of State’s proposal that both appeals should be remitted and reheard by the tribunal. It seems to me that the Appellant does want an oral hearing of these appeals to the Upper Tribunal.

 

5.        These are appeals which are not opposed by the Secretary of State and thus, in common parlance, the Appellant has “won” his cases in the Upper Tribunal. I am satisfied that his appeals should be allowed and both matters remitted to the First-tier Tribunal for re-hearing for reasons which are set out below. The Appellant will have an opportunity to speak in support of his appeals to the First-tier Tribunal re-hearing these matters. Pursuant to rules 34(1) and 34(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, I may make any decision without a hearing as long as I have had regard to any view expressed by a party when deciding to hold a hearing and when considering the form any such hearing should take. I have taken the Appellant’s views into consideration but I am satisfied in all the circumstances that I can proceed to determine this appeal properly and justly without holding an oral hearing. 

 

Grounds of Appeal

 

6.        In giving permission to appeal I identified a number of grounds which are reproduced here together with my conclusions. This has been done in order to assist the new First-tier Tribunal hearing these remitted appeals.

 

7.        In CJSA/5538/2014 the tribunal erred in law by recording incorrectly those matters contained in the Appellant’s Jobseeker’s Agreement in bullet point form in paragraph 3 of the Statement of Reasons. The Jobseekers Agreement at pages 4 and 5 of CJSA/5539/2014 did not record that the Appellant had to take 21 steps weekly to find employment by using the internet and did not record that he had to canvas employers by visiting them in person three times a week. The tribunal made its decision in paragraph 6 of the Statement of Reasons on the basis of “all the available evidence” and thus, if a part of the factual basis for that decision was incorrect in fact, the tribunal’s reasoning was erroneous in law.

 

8.        The Secretary of State agrees that the tribunal erred in law but asserts that this was not material to the decision that it took. He submits this because, although the tribunal made no explicit findings about whether the Appellant had satisfied Regulation 18(1) of the Jobseeker’s Allowance Regulations 1996 in terms of the number of steps he took during each of the two weeks in question, the tribunal appeared to be satisfied that the Appellant had taken various steps. The tribunal only determined that the steps taken did not afford the best prospects of obtaining employment, that is, they had not satisfied section 7(1) of the Jobseeker’s Act 1995. I accept that submission.

 

9.        Second, the tribunal erred in law in its approach to the Appellant’s job search evidence in paragraph 4 of the Statement of Reasons in CJSA/5538/2014. The tribunal found that, due to a lack of detail and clarity, the steps taken by the Appellant could not be taken into account. It referred to dates being incorrect [see pages 10-14 in CJSA/5539/2014]. Any considered perusal of these pages in their entirety would have established that the Appellant made a simple error in recording the dates during the relevant time frame. Further the name of the employer for the vacancies for which application was made is clearly recorded at page 13 of CJSA/5538/2014.

 

10.     Again the Secretary of State acknowledges the error of law in the tribunal’s consideration of the Appellant’s job search. Again he submits that this was not material to its decision presumably for the same reasons set out in paragraph 8 above. I accept that submission.

 

11.     Third, the tribunal stated that there were customer service and administration roles available on the Universal Job Match Website which the Appellant could have applied for and did not. The Appellant told the tribunal that this was not in fact the case. There was no evidence produced by the Respondent to validate its assertion that roles other than teaching roles were available in the categories listed in the Jobseekers Agreement, namely Countryside officer/Rights of way officer or planning officer [page 4, CJSA/5539/2014]. The tribunal’s finding that the Appellant had not taken the steps which gave him the best prospect of securing employment was thus arguably made, in part, on the basis of no evidence whatsoever.

 

12.     The Secretary of State agrees that this constituted a material error of law. He submits that the tribunal should have adjourned the hearing and directed the Secretary of State to produce evidence about those vacancies. I agree that the tribunal should have adopted that course. I allow the appeal in CJSA/5538/2014 on this ground.

 

13.     In paragraph 5 of the Statement of Reasons in CJSA/5539/2014 the tribunal noted that the dates on the original page stapled to form ES4JP did not fall within the relevant time-frame. The Appellant asserted that these dates represented the closing dates of the various vacancies for which he applied and that he told the tribunal this. Though the Record of Proceedings does not record this statement, the Appellant produced other copies of form ES4JP to me which were in exactly the same format and which were accepted by the Respondent as showing that the Appellant had applied for vacancies during the relevant time period. Pursuant to rule 15(2)(a)(ii) I admitted this evidence which may have a bearing on whether the Appellant took the steps required by law to search for work.

 

14.     Given that the tribunal materially erred in law and incorrectly upheld the Secretary of State’s decision to disallow the award of JSA for the period 26/3/2014 to 8/4/2014, I find that the tribunal’s decision in CJSA/5539/2014 was also incorrect in law as the sanction upheld in that case depended on the validity of the sanction in CJSA/5538/2014.

 

Next Steps

 

15.     In the light of my findings, I am satisfied that the appropriate order is the setting aside of the tribunal’s decision. The Appellant urges a different course and submits that I should remake the tribunal’s decisions in his favour. I cannot accept that submission for the following reason.

 

16.     In order to remake the decision in CJSA/5538/2014 I would require evidence about whether there had indeed been customer service and administration vacancies available during the two week period in question for which the Appellant could have applied and did not. He disputes such vacancies existed.  This evidence is not available to me and thus the only proper course I can take is to remit both appeals to the tribunal for rehearing by a differently constituted tribunal.

 

17.     In my judgment, it would not be in the interests of justice to restrict the scope of the remitted hearing, and so the Appellant is entitled to advance any and all points he wishes on their merits at the fresh hearing.

 

18.     Though the Appellant has succeeded in these appeals, this should not be taken as an indication that he will be successful at any rehearing.

 

19.     The Appellant is presently unrepresented. He would be well advised to seek advice and or representation in connection with the rehearing of his appeals from a welfare rights organisation or from the Citizens Advice Bureau.

 

 

 

CASE MANAGEMENT DIRECTIONS

 

 

20.     The appeal should be considered at an oral hearing.

 

21.     The new First-tier Tribunal should not involve the tribunal judge who was previously involved in determining the appeal on 8 September 2014.

 

22.     A copy of this decision should be made available to the new First-tier Tribunal.

 

23.     If the Appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decisions by the Secretary of State under appeal (namely 16 April 2014 and 21 May 2014).

 

24.     Within one month of the issue of this decision, the Respondent shall send to the tribunal office and to the Appellant the evidence relating to the job vacancies available during the period in question which are referred to in paragraphs 11 and 16 above.

 

25.     The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

 

26.     The tribunal must deal with any procedural questions, as may arise, on their merits.

 

27.     The tribunal must consider all aspects of the case, both fact and law, entirely afresh.

 

28.     The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the 1998 Act – but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of the decision.

 

 

 

 

 

Gwynneth Knowles QC

Judge of the Upper Tribunal

24 September 2015.

 

[signed on the original as dated]