Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the Appellant’s appeal.

 

The decision of the Lancaster First-tier Tribunal dated 16 June 2014 under file reference SC946/14/00902 involves an error on a point of law and is set aside. 

 

The Upper Tribunal re-makes the tribunal’s decision in the following terms:

 

“The Appellant’s appeal is allowed.

 

The Secretary of State’s decision of 12 February 2014, imposing a sanction so that JSA was not payable from 11 February 2014 to 10 March 2014 (both dates included), is revised. The purported sanction is of no effect. This is because the Appellant has good cause for not attending the Jobcentre on 3 February 2014 and so JSA should not have been stopped for that four-week period.”

 

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

 

 

REASONS FOR DECISION

 

A summary of what this appeal is about

1. This appeal is about a sanction involving the loss of jobseeker’s allowance (JSA) for four weeks. The Department for Work and Pensions (DWP) and the First-tier Tribunal (FTT) both decided that the Appellant had, without good cause, failed to participate in an interview (in effect, to ‘sign on’) on a particular date. My conclusion is that the sanctions regime was not properly applied. It follows that JSA should not have been stopped for the four weeks in question. I set aside and then re-make the FTT’s decision to that effect.

 

2. The appeal also raises an issue about the proper interpretation of regulation 23(1) of the Jobseeker’s Allowance Regulations 1996 (SI 1996/207), and in particular whether a change in signing on arrangements can be notified orally. For the reasons I explain below I do not need to resolve that particular issue.

 

The background to the appeal

3. The Appellant claimed JSA. He was issued with the standard ES40 booklet (Jobseeker’s Allowance: Your Responsibilities), the final page of which detailed “Attendance arrangements”. His signing on day was fortnightly on Mondays at 12.45 at his local Jobcentre. His current ES40 specified 13 January, 27 January and 10 February 2014 as his signing on dates. The Appellant attended the Jobcentre on all those dates.

 

4. The DWP case records include a summary of an “Action Plan” (“a record of what you and your personal adviser have agreed”). This records that at his visit on 27 January 2014 “Cust[omer] refused to register on UJM [Universal Job Match] states that until tribunal hearing held he will not do anything. Advised that he needs to attend weekly and has refused to do this.” The reference to a tribunal hearing was plainly a reference to a separate and earlier appeal that was outstanding.

 

5. The Appellant did not attend at the Jobcentre a week later on 3 February. He attended on 10 February and stated that he had not been informed of any appointment on 3 February. The DWP records for his visit on 10 February state “New ES40 issued with next weekly appointment dates (17/02/2014 and 24/02/2014). Re-iterated he is only weekly signing.” The Appellant duly attended the Jobcentre on both 17 and 24 February.

 

6. On 12 February a DWP decision maker imposed a four-week sanction, withdrawing JSA, as he was not satisfied with the Appellant’s explanation for his non-attendance on 3 February. The Appellant asked for the decision to be reconsidered.

 

7. On 4 April a decision maker confirmed the sanction. In the mandatory reconsideration notice it was stated to be a fact that during the Appellant’s visit to the Jobcentre on 27 January “you were notified that you needed to attend an appointment at [a specified] Jobcentre on 03/02/2014 at 12.45pm.” The outcome decision, leaving the decision of 12 February 2014 unchanged, asserted that “There is no dispute over the fact that you received notification requiring you to participate in an appointment at [the particular] Jobcentre on 03/02/2014 at 12.45.” That was plainly wrong, as there was very much a live dispute as to whether there had been such an effective notification on 27 January.

 

8. On 7 April the Appellant lodged an appeal. He stated that “I did not receive any notification of an appointment dated 3/2/2014 either by post or verbally on or before 27/1/2014. It was not possible to attend an appointment I knew nothing about... I had no reason to refuse any weekly signing dates and did not do so at any time.”

 

The relevant law

9. Section 8(1)(a) of the Jobseekers Act 1995 provides as follows:

 

“Attendance, information and evidence

8.(1) Regulations may make provision for requiring a claimant (other than a joint-claim couple claiming a joint-claim jobseeker’s allowance)—

(a) to attend at such place and at such time as an employment officer may specify;..”.

 

10.  Regulation 23 of the Jobseeker’s Allowance Regulations 1996 (as amended) further specifies as follows:

 

“23. A claimant shall participate in an interview in such manner, time and place as an employment officer may specify by a notification which is given or sent to the claimant and which may be in writing, by telephone or by electronic means.”

 

The decision of the First-tier Tribunal

11.  The FTT dealt with the appeal on the papers (there is no challenge to that procedural aspect of its decision). In short the FTT accepted the DWP’s account of the events leading up to the imposition of the sanction. The FTT accordingly dismissed the Appellant’s appeal.

 

12.  The FTT’s statement of reasons noted that the 27 January Action Plan entry did not specify a time for attendance on 3 February. The FTT also accepted that a written requirement of the notification would have been “desirable” to ensure there was “no ambiguity about the signing date or time”. However, the FTT concluded that there was no doubt about the Appellant’s usual signing on time and, as a matter of law, notification of a requirement to attend could be given orally, given the terms of section 8(1). The FTT further “accepted the Action Plan as being an accurate record of the oral notification given to the Appellant.”

 

The proceedings before the Upper Tribunal

13.  The Appellant appealed to the Upper Tribunal, complaining that the FTT had rubber-stamped the DWP’s decision on “flimsy evidence”. I gave permission to appeal. Mr A. East, the Secretary of State’s representative, supports the appeal. He argues that a notification under regulation 23(1) may be by word of mouth, in the course of face to face contact (e.g. in an interview at the counter or at a desk in the Jobcentre), but “only if computer records can be produced that show [the claimant] was told and what he was told, i.e. manner, time and place”.

 

14.  Mr East acknowledges there was no evidence of any written notification until the new ES40 was issued on 10 February, a week after the alleged missed appointment. He argues that any oral notification should have been correctly recorded in the Action Plan, including the date and time the claimant was required to attend. Mr East concedes that the Action Plan entry for 27 January was not sufficient evidence to show a proper oral notification of a change in signing arrangements. If, as the FTT found, that entry was an accurate record, then it omitted to specify time and place.

 

15.  Mr East accordingly invites me to allow the Appellant’s appeal, set aside the FTT’s decision and re-make the decision so that no sanction should be imposed.

 

16.  The Appellant is understandably content with that outcome, although he makes a number of wider points about the DWP’s approach to imposing benefit sanctions.

The Upper Tribunal’s decision

17. I accordingly allow the Appellant’s appeal and set aside the FTT’s decision. I proceed to re-make the FTT’s decision on the appeal against the sanction decision of 12 February as confirmed on mandatory reconsideration.

 

18. The crux of this appeal is a dispute over the facts. Was the Appellant properly notified of a change in his signing arrangements on 27 January 2014? A weakness in the FTT’s decision is that it did not adequately weigh the DWP’s version of events against the Appellant’s account. The best evidence the DWP can produce is the Action Plan entry for 27 January which, as Mr East concedes, is itself less than compliant with regulation 23. The supposed more detailed statement of fact in the mandatory reconsideration decision is not first-hand evidence. It is at best an inference and at worst a bare assertion. The Appellant, on the other hand, is adamant that whatever else transpired on 27 January he was not told of any change in his signing on arrangements. His account receives some support from the fact that when notified of weekly signing by the issue of the new ES40, he duly complied with those changed arrangements.

 

19. As I suggested in DL v Secretary of State for Work and Pensions (JSA) [2013] UKUT 295 (AAC) (at [14]), “Given the relevant legislation involves a financial penalty, it should be construed strictly.” Putting the matter another way, there is an argument in sanctions cases that the claimant should be given the benefit of any doubt that may reasonably arise. In this case I am not satisfied, on the balance of probabilities, that the Appellant was properly notified of a change in his signing on arrangements on 27 January 2014. It follows that he had good cause for not attending the Jobcentre a week later on 3 February. I re-make the FTT’s decision accordingly.

 

 

 

The question of statutory interpretation

20.  Given the concession by the Secretary of State on the facts of this appeal, I do not need to resolve the question of statutory interpretation, namely whether a notification can be made orally in the course of face to face contact for the purposes of regulation 23(1). In earlier directions on this appeal I suggested that the phrase “may be in writing, by telephone or by electronic means” could be read as illustrative or exhaustive.

 

21. If illustrative, then regulation 23(1), although it plainly requires notification of “manner, time and place” of any interview or appointment, leaves entirely open the method of communication of that information.

 

22. If exhaustive, then regulation 23(1) requires notification of “manner, time and place” to be by one of the three specified methods, thus excluding word of mouth notification in the course of face to face contact.

 

23. Mr East argues that the phraseology of regulation 23(1) is purely illustrative and does not preclude notification in the course of a face to face interview. He relies on the fact that regulation 23(1) states that notification “may be” (not must be) by one of the three stated methods. I can see the force of that argument, not least bearing in mind the likely policy objectives of the amendments over time to the wording of regulation 23(1). It is also true, of course, that telephone notification is simply a form of oral communication. Against that, if the methods stated are only illustrative, it is rather difficult to envisage what other forms of notification (Morse code? semaphore?) could be intended, apart from face to face contact, which is not mentioned, suggesting the exclusion may actually be deliberate. However, as already indicated, I do not need to resolve this issue of interpretation definitively and the point is best left for decision in an appeal in which it is critical and which also has the benefit of full argument.

 

Conclusion

24.  I therefore allow this appeal and set aside the decision of the FTT (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The decision that the FTT should have made is as set out at the head of these reasons (section 12(2)(b)(ii)). In short, the Appellant’s appeal should have been allowed by the FTT.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 5 February 2015 Judge of the Upper Tribunal