Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CJSA/1455/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before: A. Rowley, Judge of the Upper Tribunal  

 

 

Decision:  I allow the appeal.  As the decision of the First-tier Tribunal (made on 20 September 2013 at Southampton under reference SC203/13/02954) involved the making of an error in point of law, it is set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.  It is appropriate for me re-make the decision under section 12(2)(b)(ii) of the 2007 Act.  My decision is that the decision of the Secretary of State for Work and Pensions made on 24 June 2013 is set aside.  The claimant is not subject to a sanction of his Jobseeker’s Allowance between 14 June 2013 and 11 July 2013, both dates included.  There were no grounds to supersede the existing award of Jobseeker’s Allowance.

 

 

 

REASONS FOR DECISION

 

1.    This is an appeal by the claimant from a decision of the Southampton First-tier Tribunal dated 20 September 2013.  The tribunal upheld the decision dated 24 June 2013 of the Secretary of State for Work and Pensions to the effect that the claimant was not entitled to Jobseeker’s Allowance from 14 June 2013 to 11 July 2013 because he failed, without a good reason, to carry out a Jobseeker’s Direction and was accordingly subject to a sanction.  I granted permission to appeal to the Upper Tribunal following an oral hearing of the application for permission to appeal which was attended by the claimant in person.  The Secretary of State supports the appeal.

2.    Before turning to the issues on the appeal I must first address the claimant’s request for an oral hearing of the appeal.  There is no absolute right to an Upper Tribunal oral hearing. I have a discretion to exercise in the light of the overriding objective of dealing with cases fairly and justly under rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008.  I am also required to consider both parties’ views by virtue of rule 34.  I refuse the claimant’s application for an oral hearing of the appeal for the following reasons.  The Upper Tribunal’s role is confined to correcting the Tribunal on issues of law. I am not satisfied that further oral legal argument will assist in any material way. It is also not the job of the Upper Tribunal to embark on a further investigation of the facts of the case. I am able to decide the appeal in the claimant’s favour without a hearing.  An oral hearing before the Upper Tribunal in this case is both unnecessary and disproportionate. It would cause further delay, expense and inconvenience. 

The law

3.    By section 19A(1) of the Jobseeker’s Act 1995 the amount of an award of a jobseeker’s allowance is to be reduced in accordance with section 19A in the event of a failure by the claimant which is sanctionable under the section. 

4.    Section 19A(2) lists the failures which are sanctionable under the section.  They include where a claimant:

“(c) without a good reason refuses or fails to carry out a jobseeker’s direction which was reasonable having regard to his circumstances”

5.    By section 19A(11) a “jobseeker's direction” is:

“a direction given by an employment officer (in such manner as he thinks fit) with a view to achieving one or both of the following—

(i) assisting the claimant to find employment;

(ii) improving the claimant's prospects of being employed.”

6.    The Decision Makers’ Guide consists of guidance for DWP staff who make decisions about benefits.  Whilst it is not binding on interpretation of statutory provisions nevertheless it may, in appropriate cases, be of relevance.  Volume 6 of the Guide contains provisions which are relevant to this case.

7.    Under paragraph 34904 of the Decision Makers’ Guide it is provided that a Jobseeker's Direction should be (amongst other things):

(1) linked to an action to improve the claimant’s chances of finding work;

(2) personalised and appropriate for that individual claimant

(3) related to labour market activities.

8.    It is further provided (under paragraph 34905) that the issue of a Jobseeker's Direction must be tailored to each individual claimant’s requirements.

9.    The Decision Maker’s Guide also provides guidance on certain sessions which are known as Group Information Sessions.  Under paragraph 34911 it is said that “generally a claimant cannot be mandated to attend a Group Information Session.  There needs to be a clearly identified and tangible benefit to the individual claimant in terms of improving their employment prospects by attending the session.”

The facts

10. The claimant has been registered as unemployed since 17 October 2009.  On 18 June 2013 he was issued with a document purporting to be a Jobseeker's Direction.  The reason given for the direction was stated on its face: “to attend the work programme returnee’s information session to improve your chances of employment.”  The claimant was directed to:

“attend and participate fully in the General Information Session Southampton Jobcentre Plus … at 2pm on Wednesday 19th June 2013.  To arrive at Southampton Jobcentre Plus 10 minutes early for the session, so you are not late.  You will receive additional information to help you look for work, ensure you have the correct job goals and improve your CV.”

11. The claimant duly attended the session.  According to the claimant, contrary to what was set out in the Jobseeker's Direction, in fact the session was in respect of the sanctions regime which was being implemented by the DWP.  In any event, a few minutes before the session was due to end, the claimant was asked to leave the session as it was said that he was disrupting the event by asking questions and heckling. 

12. On 24 June 2013 a decision maker decided that, in the circumstances, the claimant had not participated fully in the session, and so was in breach of the Jobseeker's Direction.  The decision maker further decided that the claimant had not had good reason for failing to comply with the Jobseeker's Direction which had been reasonable according to his circumstances, and accordingly he should be subject to a sanction of his Jobseeker’s Allowance between 14 June 2013 and 11 July 2013. 

13. The claimant appealed to the First-tier Tribunal.  His appeal was heard on 20 September 2013.  The claimant attended the hearing and gave evidence.  He told the tribunal that the session on 19 June 2013 had not been conducted in a reasonable manner, and the leader of the session had refused to answer questions which the claimant had reasonably put to him.  However, the tribunal found that the claimant had been excluded from the session as a result of his own actions, particularly as he had been warned of the consequences if he persisted in acting as he did. The tribunal concluded that the claimant had failed fully to participate in the session as required by the Jobseeker's Direction and he did not have a good reason for such failure.  The tribunal further concluded that the Jobseeker's Direction had been reasonable having regard to the claimant’s circumstances as having been unemployed since 2009 and as having been previously sanctioned.  (In fact the claimant had not been previously sanctioned, but nothing turns on that for the purposes of this appeal).  Consequently, the tribunal refused the appeal, and confirmed the decision of 24 June 2013.

Analysis

14. I am very grateful to the Secretary of State’s representative, Ms Amie East, for her careful and helpful submissions to the Upper Tribunal.  Ms. East points out that there is no explanation on the papers to justify why the claimant was issued with a Jobseeker's Direction to attend a Group Information Session.  It will be recalled that under paragraph 34911 of the Decision Makers’ Guide it is said that “generally a claimant cannot be mandated to attend a Group Information Session.” Ms. East says that, in the first instance, he should have been asked to attend the Group Information Session on a voluntary basis. 

15. In addition, it seems that a blanket approach was adopted, giving a Jobseeker's Direction to a broad spectrum of claimants to attend a Group Information Session which was a general session in respect of the sanctions regime.  I agree with Ms. East’s submission that there was no evidence to show why this Group Information Session would have assisted this claimant to find employment or to improve his prospects of being employed, as required by section 19A(11) of the 1995 Act.  There was nothing to suggest that the Jobseeker's Direction was linked to an action improve the claimant’s chances of finding work, or that it was personalised and appropriate for the claimant or, indeed, that it was related to labour market activities.  Nor was there any evidence to suggest that the issue of the Jobseeker's Direction was tailored to the claimant’s specific requirements.  Given the general terms of the Jobseeker's Direction taken together with the nature and content of the Group Information Session, these were matters which should have been considered by the tribunal.  Its failure to do so amounted to an error of law.

16. I should add that the claimant takes issue with the tribunal’s findings in relation to his expulsion from the session.  I highlighted the ones which were arguable when I granted permission to appeal.  It is important to be clear about the question I have to ask. The question is not: what would I have done in the same position as this tribunal? Nor is the question: what would another tribunal have done in the same position as this tribunal? Rather, the question is: did this tribunal err in law in the sense that it made findings which no reasonable tribunal could have made in the circumstances? I am of the view that, in respect of its findings concerning the claimant’s expulsion from the session, it did not so err in law. 

17. Nevertheless, for the reasons given above, the tribunal’s decision involved the making of an error in point of law.   

Conclusion

18. By reason of the matters set out at paragraphs 14 and 15 above the tribunal erred in law.  I set aside its decision.  Ms. East invites me to re-make the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.  It is appropriate for me to do so in this case.  On the basis of what I have set out above, there is no evidence to suggest that the Jobseeker's Direction issued on 18 June 2013 complied with section 19A(11) of the 1995 or, for that matter, with the provisions of the Decision Makers’ Guide which I have referred to.  In those circumstances, the sanction should not have been imposed. 

19. Accordingly, my decision is that the decision of the Secretary of State for Work and Pensions made on 24 June 2013 is set aside.  The claimant is not subject to a sanction of his Jobseeker’s Allowance between 14 June 2013 and 11 July 2013, both dates included.  There were no grounds to supersede the existing award of Jobseeker’s Allowance.

 

 

 

 

 

 

A.   Rowley, Judge of the Upper Tribunal

 

(Signed on the original)

 

Dated: 9 February 2015