IN THE UPPER TRIBUNAL Case
No. CJSA/2280/2009
ADMINISTRATIVE APPEALS
CHAMBER
Before Deputy Upper Tribunal Judge Mark
Decision: The appeal is allowed. The decision of the First
Tier Tribunal is set aside and the decision of the secretary of state given on
4 February 2009 is restored.
REASONS FOR DECISION
- Section 19(2) of the
Jobseekers Act 1995 provides that in any of the circumstances mentioned in
section 19(5) of that Act, the allowance is not to be payable for such
period between one and twenty six weeks as may be prescribed. The
circumstances mentioned in section 19(5) include refusing or failing,
without good cause, to carry out any jobseeker’s direction that was
reasonable and, without good cause, neglecting to avail oneself of a
reasonable opportunity of a place on a training scheme or employment
programme.
- The prescribed period is
provided for by regulation 69 of the Jobseeker’s Allowance Regulations.
So far as relevant here, the prescribed period is 2 weeks in any case that
is not otherwise prescribed for under regulation 69(1). Regulation
69(1)(b)(i) prescribes a period of 4 weeks in any case (other than certain
specified ones that are not in point here) in which, inter alia, “on a
previous occasion the jobseeker’s allowance was determined not to be
payable to him in circumstances falling within section 19(5)” and “(ii)
the first date on which the jobseeker’s allowance was not payable to him
on that previous occasion falls within the period of 12 months preceding
the date of the determination mentioned in (b)(i) above”. In essence, the
regulation goes on to provide for a period of 26 weeks non-payment where
there have been two previous determinations in that 12 months period.
- In this case, the claimant
was in receipt of jobseeker’s allowance, and on two occasions within a 12
months’ period acted so as to give rise to one of the circumstances in
section 19(5). The occasion with which this appeal is concerned took
place in October 2008. At that time, no sanction had been imposed in the
preceding 12 months. A sanction was imposed, however, in December 2008, when
it was determined that the allowance should not be paid for two weeks. When
the October 2008 events came to be considered by the secretary of state in
February 2009, the secretary of state decided that the sanction required
by regulation 69 was therefore a four week sanction.
- The claimant appealed, in
part against the finding that he had had no good cause for his conduct in
that case. The tribunal dismissed that part of his appeal, but determined
that the appropriate sanction was only two weeks because in October 2008
there had been no previous sanction.
- In its statement of
reasons, the tribunal applied its own reasoning in another case, a copy of
which was annexed to that statement. The tribunal, a very experienced
Regional Tribunal Judge, gave his reasons as follows:
“In
my judgement, the question of whether or not there is a previous occasion on
which the JSA has been determined not to be payable is to be judged at the date
of the refusal; not at the date of the Secretary of State’s decision. It seems
to me instinctively that the claimant’s rights or penalties crystallised at
that point and are not to be changed by subsequent events. This instinctive
approach is consistent with the scheme of Regulation 69. It makes sense that
an erring claimant should receive the sting of the two week sanction before
running the risk of a four week sanction and then a twenty-six week sanction.
By contrast on the Secretary of State’s interpretation, three refusals in one
day would result in a thirty-two week sanction straight away.”
- The secretary of state now
brings this appeal with the leave of the Regional Tribunal Judge. In
doing so, the secretary of state has advised that, in the present case,
there was a delay in referring the papers to the decision maker
immediately, so that a determination was made in respect of a failure to
attend on 3 November 2008 before the determination in respect of this
failure to attend in October 2008. That evidence was not before the
tribunal, and cannot in any event affect the construction of the relevant
provisions. One can envisage various circumstances in which this issue
can arise, of which the alleged facts in this case are just one example.
There may have been several such failures before any of them are dealt
with by a decision maker. There may have been an instant reference to the
decision maker in the first case, but a decision may have been delayed
while an issue of good cause was considered.
- The secretary of state
submits that the relevant time references are based on when the
determinations are made, not on when the claimant brings section 19(2) and
(5) into play by his conduct. That submission is not elaborated on, and
there have been no submissions from the claimant.
- On a literal reading of
regulation 69(1)(b), it is clear that it is a precondition of the sanction
that there has been a determination that a jobseeker’s allowance is not to
be payable in the circumstances set out. It is also clear that each of
the alternative circumstances, of which one must be satisfied, includes
the requirement that on a previous occasion the jobseeker’s allowance was
determined not to be payable to the claimant, and regulation 69(1)(b)(iii)
provides that the first date on which the jobseeker’s allowance was not
payable on that previous occasion falls within the period of 12 months
preceding the date of the determination mentioned in (b)(i) above.
- In my judgment, the
regulation is clear that the date from which the 12 months is to be
measured is the first date on which the jobseeker’s allowance was not
payable as a result of the previous determination, and it is to be
measured to the date of the determination under consideration.
- I very much doubt that the
practical result of this would be that three refusals in one day would
result in a thirty-two week sanction straight away. It appears to me to
be likely that these refusals would be dealt with together. They may well
be treated as a single refusal. Even if they were not, if they were dealt
with on the same day, the prescribed period would normally only begin
after the date of the decisions (see regulation 69(2)), so that the first
date on which the allowance was not payable under the first decision would
come after, and not before, the date of the second and third
determinations.
- I also note that by
looking at the date of the refusal in determining whether there has been a
previous determination could mean that an earlier date of non-payment
could fall within the 12 months period, whereas if the date of
determination was to be looked at in the second case, it would be more
than 12 months after the earlier date of non-payment. In that case, the
tribunal’s interpretation of the provisions would be less favourable to
the claimant than that which I have held to be the correct interpretation.
Michael
Mark
Deputy
Upper Tribunal Judge
6
January 2010
