PL-v-Department for Social Development (JSA) [2015] NI Com 72
Decision No:  C10/14-15(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKERS ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 28 February 2014

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 28 February 2014 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

2.	This appeal has been supported by the Department.  As will be noted in greater detail below, in supporting the appeal, the Department has identified that the principles in a decision of the Upper Tribunal are applicable to the issues arising in the present appeal.  I would ask the Legally Qualified Panel Member (LQPM) to note that the Department has also acknowledged that it was unlikely that the appeal tribunal was made aware of the Upper Tribunal decision and its consequences.

3.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

4.	In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

5.	It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to Jobseeker’s Allowance (JSA), for a particular period, remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

	Background

6.	On 14 November 2013 a decision-maker of the Department determined that the appellant had failed to comply with a jobseeker’s direction.  On 15 November 2013 a decision-maker decided that JSA was not payable to the appellant for a seven day period from 21 November 2013 to 27 November 2013 as the appellant had, without good cause, refused to comply with a jobseeker’s direction.

7.	An appeal against the decision dated 15 November 2013 was received in the Department on 20 November 2013.  On 3 December 2013 the decision dated 15 November 2013 was reconsidered.  The decision was revised and it was determined that JSA was not payable for a four week period from 21 November 2013 to 18 December 2013.  The reason for the increase in the period during which JSA was not payable was that a previous sanction had been imposed on the appellant within a 12 month period.  On 28 August 2013 a decision-maker had determined that JSA was not payable to the appellant for a two week period from 29 August 2013 to 11 September 2013.

8.	As the decision dated 3 December 2013 was not to his advantage the appellant’s appeal continued against the original decision dated 15 November 2013, as revised on 3 December 2013.  The decision dated 15 November 2013, as revised on 3 December 2013, was reconsidered again on 17 December 2013 as the Department had received another appeal form from the appellant.  Once again, the decision was not changed.

9.	The appeal tribunal hearing took place on 28 February 2014.  The appeal proceeded as a ‘paper’ hearing as the appellant sent Form REG2(i)d, dated 20 February 2014, to TAS, indicating that he was content for the appeal to proceed without an oral hearing.  The relevant form was received in the Appeals Service (TAS) on 24 February 2014.  The appeal tribunal disallowed the appeal and confirmed the decision dated 15 November 2013, as revised on 3 December 2013.

10.	On 2 June 2014 an application to have the decision of the appeal tribunal set aside was received in TAS.  In the same correspondence the appellant also made an application for leave to appeal to the Social Security Commissioner should the set-aside application be refused.  On 19 June 2014 the LQPM refused the application to have the decision of the appeal tribunal set aside.  On 3 July 2014 the application for leave to appeal to the Social Security Commissioner was refused.

	Proceedings before the Social Security Commissioner

11.	On 1 August 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 12 August 2014 observations on the application were requested from Decision Making Services (DMS).  In detailed written observations dated 5 September 2014, Mr Crilly, for DMS, supported the application for leave to appeal.

12.	Written observations were shared with the appellant on 26 February 2015.  On the same date I granted leave to appeal.  In granting leave to appeal I gave, as a reason, that an arguable issue arose as to whether the appeal tribunal adopted the correct approach to the question of determining ‘good cause’.  I also determined that having considered the papers I was satisfied that the appeal could properly be determined without an oral hearing.

13.	On 18 March 2015 written observations in reply were received from the appellant which were shared with Mr Crilly on 23 March 2015.  On 15 April 2015 a further response was received from Mr Crilly which was shared with the appellant on 15 April 2015.

	Errors of law

14.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

15.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	The relevant legislative background

16.	In his very helpful written observations, Mr Crilly set out the following legislative background:

‘Article 21 of the Jobseekers (Northern Ireland) Order 1995 (“the Order”) provides for circumstances in which a jobseeker’s allowance is not payable.  Articles 21(1), (2) and (5)(b)(i) state:

21.—(1) Even though the conditions for entitlement to a jobseeker’s allowance are satisfied with respect to a person, the allowance shall not be payable in any of the circumstances mentioned in paragraph (5) or (6).

(2) If the circumstances are any of those mentioned in paragraph (5), the period for which the allowance is not to be payable shall be such period (of at least one week but not more than 26 weeks) as may be prescribed.

(5) The circumstances referred to in paragraphs (1) and (2) are that the claimant—

(b) has, without good cause—

(i) neglected to avail himself of a reasonable opportunity of a place on a training scheme or employment programme;

Articles 21(8)(a)(i) and (8)(b)(i) provide:

(8) Regulations may—

(a) prescribe matters which are, or are not, to be taken into account in determining whether a person—

(i) has, or does not have, good cause for any act or omission; or

(b) prescribe circumstances in which a person—

(i) is, or is not, to be regarded as having, or not having, good cause for any act or omission; or

Article 21(10) states:

(10) In this Article—

(a) “employment officer” means an officer of the Department or such other person as may be designated for the purposes of this Article by an order made by the Department;

(b) “jobseeker’s direction” means a direction in writing given by an employment officer 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; and

(c) “training scheme” and “employment programme” have such meaning as may be prescribed.

Regulation 69 of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 (“the JSA Regulations”) outlines the prescribed period for the purposes of Article 21(2) of the Order.  In particular, regulations 69(1)(b)(i), (ii)(dd) and (iii) provide:

69.—(1) The prescribed period for the purposes of Articles 21(2) and 22A(3)_ of the Order shall be—

(b) 4 weeks, in any case (other than a case where a jobseeker’s allowance is determined not to be payable in circumstances relating to the employment programme known as “Core Gateway” specified in regulation 75(1)(a)(iv)) or a case which falls within sub-paragraph (f) in which—

(i) a jobseeker’s allowance is determined not to be payable to the claimant in circumstances falling within Article 21(5) or 22A(2)(a) to (c) of the Order, and

(ii) one of the following circumstances applies—

(dd) where the determination in head (i) relates to Steps to Work, on a previous occasion the jobseeker’s allowance was determined not to be payable to him in circumstances falling within Article 21(5) or 22A(2)(a) to (c) of the Order that relate to any element of that programme, and

(iii) 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 head (i);

Paragraph (2)(b) of regulation 69 goes on to outline:

(2) The prescribed period for the purposes of Articles 21(2) and 22A(3) of the Order shall begin—

(b) in any other case, on and including the first day of the benefit week following the date on which a jobseeker’s allowance is determined not to be payable.

Regulation 73 of the JSA Regulations provides for good cause for the purposes of Article 21(5)(b) of the Order.  Paragraphs (2), (2A), (2B) and (2C) of regulation 73 each set out circumstances in which a claimant may be regarded as having good cause for any act or omission in relation to Article 21(5)(b).  In particular, paragraph (2A) states:

(2A) Without prejudice to any other circumstances in which a person may be regarded as having good cause for any act or omission for the purposes of Article 21(5)(b) and Article 22A(2)(b) of the Order, a person is to be regarded as having good cause for any act or omission for those purposes if—

(a) the act or omission relates to an employment programme specified in regulation 75(1)(a)(i) to (iii), (v), (vi) or (vii) or the training scheme specified in regulation 75(1)(b)(ii), and

(b) he had not, prior to that act or omission, been given or sent a notice in writing by an employment officer referring to the employment programme or training scheme in question (“the specified programme”) and advising him that if any of the circumstances mentioned in Article 21(5)(b) or 22A(2)(b) of the Order arise in his case in relation to the specified programme his jobseeker’s allowance could cease to be payable or could be payable at a lower rate.

Regulation 75(1)(a)(vi) of the JSA Regulations defines ‘Steps to Work’ in the following terms:

75.—(1) For the purposes of Article 21 of the Order (circumstances in which a jobseeker’s allowance is not payable), Article 22A of the Order (denial or reduction of joint-claim jobseeker’s allowance) and of this Part—

(a) “an employment programme” means any one of the following programmes, provided in pursuance of arrangements made by or on behalf of the Department for Employment and Learning under section 1 of the Employment and Training Act (Northern Ireland) 1950 and except in the case of heads (iv) to (vi), for which only persons who are aged 18 years or over and less than 26 years prior to entry may be eligible, known as—

(vi) Steps to Work, being the programme known by that name and provided pursuant to arrangements made by or on behalf of the Department for Employment and Learning under section 1 of the Employment and Training Act (Northern Ireland) 1950, which lasts for up to 78 weeks for any individual and consisting for that individual of one or more of the following elements—

(aa) assisting in the completion of an action plan to record the activity that he will undertake whilst attending the programme in order to improve his employment prospects or to obtain employment;

(bb) a work placement, training or other work-related activity lasting for a continuous period of at least four weeks;

(cc) other work experience or training, guidance, support, motivation, assistance with job search or in pursuing self-employed earner’s employment or other activity designed to assist him to select, train for, obtain and retain suitable employment; ‘

	The appellant’s grounds of appeal before the appeal tribunal

17.	As part of the appeal documents which the appellant provided to the Department, he made the following statement:

‘Here is my “good cause” before voluntarily not signing documents with the "training" company that I was sent to.

For a start I had already been with this "training company" “Wade’s” for more than a year and during that time I was told at every interview that I went to that they couldn't find me any placement that would have helped me in any way.  So I was sent to charity shops instead and going there would not have led to a job interview never mind a job itself.  An employer that I was sent to would only take people from “Wade’s” as and when he needed them and it was obvious to me that there would be no interview or job at the end of this either, from what he said he was obviously exploiting the system and didn't intend to give anybody a job.

It was while talking with one of the staff at “Wade’s” about placements that he said that even if I did get a placement "we'll see you again this time next year" this doesn't imply that there wouldn't be any kind of job interview or even job he obviously knew that there wouldn't be any such thing or why would he have made such a comment.  He said he had been working with them for over two and a half years so obviously knew better than I did about what happens to some of the people that sign up with them.  I was also told at one of the interviews that it would be better if I just did one of the placements then it would be over and that would be the end of it.  Another phrase that was used was "they'll be getting you for nothing" that was said just after I was asked if I could not find a placement for myself.  I was also asked this a few times.

So to summarise then, “Wade’s” would not give me any training or work experience that I do not already have.  In more than a year they had plenty of time to do that and didn't.  Also the little they did offer as stated earlier would have led to neither a job interview or any kind of a job.  Even in recent interviews with them the situation still hasn't changed there is nothing more on offer now than there was when I had signed with them before.’

18.	It is clear, therefore, that the appellant was challenging the effectiveness of the training provider as part of his submission that he had good cause for his failure to avail himself of a reasonable opportunity of a place on a training scheme or employment programme.

	The appeal tribunal’s reasoning on the main issue arising

19.	In the statement of reasons for its decision, the appeal tribunal set out the following reasoning on the appellant’s actions in neglecting to avail himself of a reasonable opportunity of a place on a training scheme:

‘The Tribunal accepted that the Wade Training employee explained to (the claimant) the importance of the Criminal Convictions and Health Forms and the relevance of these forms when securing placement and that until these forms were signed he could not proceed any further.  The Tribunal concluded that it was reasonable to require (the claimant) to complete and sign Criminal Convictions and Health Forms as part of their interview process and that the interview process could not proceed until the forms were completed and signed.  Accordingly the Tribunal concluded that (the claimant) did not participate adequately in the Wade Training interview and accordingly had neglected to avail himself of a reasonable opportunity of a place on a training scheme.’

20.	The appeal tribunal went on to set out the following in connection with its conclusions on the question of whether the appellant had good cause for his failure to avail himself of a reasonable opportunity of a place on a training scheme:

‘.... In the Jobseeker’s Direction notification he was directed to attend Wade Training and participate fully in the interview and was told if he could not carry out his Jobseeker’s Direction or needed any other help to contact his adviser.  (The claimant’s) good reason/good cause for not signing documents mainly concentrated on his dissatisfaction with the training programme and he wrote to summarise that Wades would not give him any training or work experience that he did not already have.  The Tribunal concluded that this did not amount to good cause for not adequately participating in the Wade Training Interview under Regulation 73 of the Jobseeker’s Allowance Regulations (NI) 1996.’

	The appellant’s grounds of appeal before the Social Security Commissioner

21.	In his application for leave to appeal to the Social Security Commissioner the appellant set out three grounds on which he submitted the decision of the appeal tribunal was in error of law.  The third ground was as follows:

‘It is also said in the documents that I have that I was sent to Wades because I have been “without success in securing employment”.  The reason for this is the lack of jobs available more than anything else and as I have stated many times before Wades have never given me any indication that they can do anything to help in any way.  The only thing they have ever asked me to do is look for placements for myself which is what they are being paid to do and obviously they can’t or have no interest in doing this, why else would they ask me to do it for them, then of course they will take the credit for “helping” me.

I have stated many times in my appeals the “good cause” that I have for not voluntarily signing with Wades.  Basically their constant lack of interest in doing anything, they have shown this time and time again, every time I go there they would prefer me to leave instead of them doing or saying something meaningful or useful, they have never even offered any training of any kind either.  In the time I was signed with them they have sent me to interviews that lead to nothing, to charity shops that would never have led to a job and to employers that were obviously exploiting the system by taking “placements” without any intention of giving them a job.’

22.	As was noted above I granted leave to appeal on the basis that I was satisfied that an arguable issue arose as to whether the appeal tribunal adopted the correct approach to the question of determining ‘good cause’.

	Analysis

23.	In his comprehensive written observations on the application for leave to appeal, Mr Crilly made reference to the decision of Upper Tribunal Judge Ward in PL v Secretary of State for Work and Pensions (JSA) ([2013] UKUT 227 (AAC), CJSA/2428/2012 ‘PL’).  Mr Crilly has provided a very accurate summary of the factual background in PL as follows:

‘… the claimant was a man in his late fifties with a lengthy record of work who had become unemployed.  The claimant had been required to participate in an employment programme under the name of Flexible New Deal and had been referred to a training provider.  The claimant had been directed to attend an appointment but failed to do so.  When asked to provide the reason as to why he did not keep the appointment the claimant outlined that he had reservations about the training provider and the ineffectiveness on the part of the latter in assisting him with his job search.  In particular, he stated that all that was being offered to him was a literacy course and an interview course for which he was already qualified and had experience of.  The training provider had responded to this complaint, explaining that the claimant had been advised of other options with regards to securing employment.’

24.	In paragraphs 8 and 9 of his decision the Judge found that the First-tier Tribunal had erred in failing to apply regulation 73(2A) of the Jobseeker’s Allowance Regulations 1996.  He added the following, however, at paragraphs 11 and 12 of his decision:

‘11. For the record however, in giving permission I further asked whether the tribunal erred by failing to make sufficient findings as to what if anything it had been established that the Ingeus programme would provide to the claimant, when there was a conflict of evidence between him (“a literate course and an interview course”) and Mr Sheppard (“help such as exploring other job goals and making speculative applications”.)  I also asked whether the tribunal erred by failing to consider whether if there had been a failure to establish what the Ingeus programme would provide to the claimant, or if he reasonably considered that what was to be provided would not help him, that could provide good cause for purposes of section 19(5)(b).

12. The Secretary of State in agreeing with the errors of law which were identified in granting permission to appeal submits that:

“The FtT [First-tier Tribunal] also failed to make any findings about the appropriateness of the FND programme for this claimant.  Consideration should be given to the skills and experience of the claimant with respect to the relevance of the FND programme to which he is directed.  This should have been investigated further by the FtT having regard to regulation 73(2) “without prejudice to any other circumstances in which a person may be regarded as having good cause …”.’

25.	Mr Crilly has identified that the Northern Ireland equivalent of section 19(5)(b) of the Jobseekers Act 1995 is Article 21(5)(b) of the Jobseekers (Northern Ireland) Order 1995.

26.	In his written observations, Mr Crilly submitted:

‘I submit that, whilst the present case involves a different employment programme to that outlined in PL v Secretary of State for Work and Pensions, similar considerations apply in this case.  (The claimant), in making his appeal against the decision dated 15.11.13 as revised on 03.12.13, raised concerns about the effectiveness of the options being offered to him by Wade Training.  Whilst I appreciate that the hearing on 28.02.14 was conducted on a paper basis and that this had been as a result of (the claimant’s) request, I respectfully submit that the tribunal should have adjourned to investigate his concerns more thoroughly and to allow both the Department and the training provider to respond accordingly.  I further submit that arrangements should have been made to proceed with an oral hearing to allow representations to be made concerning (the claimant’s) current skills and experience as well as to obtain information about any previous training or placements that he may have undertaken in the past.  The training provider and the Department could then have then been given the opportunity to respond to this.

By omitting to adopt the above course, I submit that the tribunal was not in a position to determine on a definitive basis that (the claimant) did not have good cause in accordance with regulation 73 of the JSA Regulations in relation to his refusal to sign the required forms on 30.10.13.  Whilst I am submitting that the tribunal has erred in this respect, I would like to acknowledge that it was not helped in making its decision by the proceedings being conducted on the basis of a paper hearing.  If there had been an oral hearing, I submit that the reasons behind (the claimant’s) disaffection with the service being offered to him by Wade Training might have been considered in much more depth.  In addition, the tribunal was not made aware of PL v Secretary of State for Work and Pensions, consideration of which might have led to a different outcome in this case.’

27.	I accept Mr Crilly’s submission and for the reasons which have been set out by him agree that the decision of the appeal tribunal is in error of law.

	The appellant’s other grounds of appeal

28.	The analysis set out above focuses on the third of the appellant’s grounds of appeal.  As I have decided that the decision of the appeal tribunal is in error of law on the basis of the third ground, I do not have to consider the appellant’s other grounds of appeal.  I would note, however, that for the reasons which have been set out in Mr Crilly’s written observations on these first two grounds, I would agree that the decision of the appeal tribunal was not in error of law on the basis of these submitted grounds.

	Disposal

29.	The decision of the appeal tribunal dated 28 February 2014 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

30.	I refer the case to a differently constituted appeal tribunal for re-determination.  The appeal should be listed for an oral hearing.  The appellant should give consideration to attending the oral hearing of the appeal and to obtaining representation in connection with the oral hearing.

31.	The Department is directed to prepare a further submission for the oral hearing of the appeal.  The appeal submission should set out the legal and evidential basis for the decision under appeal and should draw on the comprehensive analysis of the issue of ‘good cause’, and its applicability to the circumstances of the present appeal, prepared by Mr Crilly in connection with the proceedings before the Social Security Commissioner.

(signed):  K Mullan

Chief Commissioner

16 December 2015