PO’R-v-Department for Communities (JSA) [2018] NICom 1

Decision No:  C3/17-18(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 12 December 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 12 December 2016 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.	I would ask the Legally Qualified Panel Member (LQPM) of the appeal tribunal to note that while the Department has supported two of the grounds of appeal advanced by the appellant, it has acknowledged that the appeal tribunal was not assisted in making its decision by not having before it (i) an item of evidence relevant to the issues arising in the appeal and (ii) a decision of the Upper Tribunal and a decision of my own which both also relate to the issues arising.

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 is detailed evidence relevant to the issues arising in the appeal, to which I have not had access.  Further, 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) 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 28 September 2016 a decision maker of the Department decided that JSA was not payable to the appellant for the period from 29 September 2016 to 12 October 2016.  On 12 October 2016 the appellant invoked the mandatory reconsideration process.  On the same date the decision dated 28 September 2016 was reconsidered but was not changed.  An appeal against the decision dated 28 September 2016 was received in the Department on 18 October 2016.

7.	The appeal tribunal hearing took place on 12 December 2016.  The appellant was present.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 28 September 2016.

8.	On 24 January 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 8 February 2017 the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

9.	On 24 January 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 28 April 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 25 May 2017, Mr Barker, for DMS, supported the application for leave to appeal on two of the grounds advanced by the appellant.  Written observations were shared with the appellant on 26 May 2017.

10.	On 30 August 2017 I granted leave to appeal.  When granting leave to appeal I gave as a reason that certain of the issues raised in the application were arguable.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

11.	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?

12.	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 error of law in the instant case

13.	In his carefully prepared and constructive written observations on the application for leave to appeal, Mr Barker set out the following legislative background:

‘Legislation

Article 19A of the Jobseekers (Northern Ireland) Order 1995 (“the Order”) provides for the imposition upon claimants, in certain circumstances, the requirement to participate in certain schemes designed to assist them to obtain employment.  It also provides for circumstance where Jobseeker’s Allowance is not payable.

19A. (1) Regulations may make provision for or in connection with imposing on claimants in prescribed circumstances a requirement to participate in schemes of any prescribed description that are designed to assist them to obtain employment.

(2) Regulations under this Article may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.

The Regulations empowered by Article 19A are the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations (Northern Ireland) 2014 (“the SAPOE Regulations”).  Regulation 3(2) provides:

Steps 2 Success is a scheme designed to assist claimants who are unemployed, to find and sustain employment by offering such support as the Steps 2 Success Provider considers reasonable and appropriate in the claimant’s circumstances for a period of 12 or 18 months.  This support is subject to a Service Guarantee and may include work search support, provision of skills training and work experience placements.

Regulation 5 of the SAPOE Regulations outlines the requirement to participate on the Scheme:

5.—(1) Subject to regulation 6, a claimant selected under regulation 4 is required to participate in the Scheme where the Department or the Department for Employment and Learning gives the claimant a notice in writing complying with paragraph (2).

(2) The notice must specify—

	(a)	that the claimant is required to participate in the Scheme;

	(b)	the day on which the claimant’s participation will start;

	(c)	details of what the claimant is required to do by way of participation in the Scheme;

	(d)	that the requirement to participate in the Scheme will continue until the claimant is given notice by the Department or the Department for Employment and Learning that the claimant’s participation is no longer required, or the claimant’s award of jobseeker’s allowance terminates, whichever is earlier; and

	(e)	information about the consequences of failing to participate in the Scheme.

Regulation 8 of the SAPOE Regulations prescribes the following:

8. A claimant who fails to comply with any requirement notified under regulation 5 is to be regarded as having failed to participate in the Scheme.

Regulation 9 of the SAPOE Regulations provides for good cause regarding a failure to participate on the Scheme.  It outlines the following:

9.—(1) A claimant who fails to participate in the Scheme must show good cause for that failure within 5 working days of the date on which the Department notifies the claimant of the failure.

(2) The Department must determine whether the claimant has failed to participate in the Scheme and, if so, whether the claimant has shown good cause for the failure.

(3) In deciding whether the claimant has shown good cause for the failure, the Department must take account of all the circumstances of the case, including in particular the claimant’s physical or mental health or condition.

Regulation 10 of the SAPOE Regulations outlines that where a claimant doesn’t show good cause, the consequence for failing to participate on the Scheme is the imposition of a sanction resulting in Jobseeker’s Allowance not being payable for a period of 2, 4 or 26 weeks depending on whether or not there have been previous sanctions in the preceding 12 month period.’

	Mr Barker then made the following submissions:

‘Failure to participate in the Scheme

In the Reasons for Decision the LQM stated the following:

(The appellant) participated in the Scheme from November 2014 – December 2015 provided by EOS.

He remained on JSA for another 26 weeks and was referred again in June 2016 to the The Scheme as a returner.  This scheme was with People Plus, the new name for EOS.

His first scheduled “Engagement Meeting” to commence the process was in June 2016.  This was not completed and a further 6 “Engagement Meetings” were scheduled.

The evidence provided by PP to the Department is that, although (the appellant) attended, he failed to engage so was recorded as having failed to attend.  A Confirmation of Engagement form was not completed by (the appellant) until 4 October 2016.

PP reported that on occasions he failed to sign in, refused to answer questions, completed the Equality Questionnaire in a meaningless fashion (reported by PP to the Department on 7 July by e-mail), became disruptive (7 July 2016), refused to participate (22 July).

I respectfully submit that although the LQM has listed evidence in the Reasons for Decision which suggests a lack of participation, for the reasons outlined below, the Tribunal erred in determining that (the appellant) failed to participate in the Scheme.

As outlined at paragraph 13 of these observations, Regulation 8 of the SAPOE Regulations prescribes that a claimant who fails to comply with any requirement notified under regulation 5 is to be regarded as having failed to participate in the Scheme.  Further, Regulation 9(2) of the SAPOE Regulations prescribes that the Department must determine whether the claimant has failed to participate in the Scheme and, if so, whether the claimant has shown good cause for the failure.

At tab 2 of the appeal papers that were before the Tribunal there are screen prints of computer system records, which show that an “S2S RETURNER” letter was issued to (the appellant) on 01/06/2016.  This was the notification informing him of his participation requirements under regulation 5.  However, the requirements outlined in the notification, and therefore what was required of (the appellant) by way of participation on the scheme, were not in the papers before the Tribunal.  I respectfully submit that the Tribunal should have adjourned to investigate what requirements of the Scheme (the appellant) had been notified of, and to allow the Department to respond accordingly.

By failing to adopt the above course and exercise its inquisitorial role, I submit that the Tribunal was not in a position to determine on a definitive basis that (the appellant) had failed to participate in the Scheme because it was unaware of what the claimant was required to do by way of participation.  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 Department not supplying either a copy, or a specimen copy, of the notification issued to (the appellant) informing him of a requirement to participate on the Scheme.

Good Cause

Regulation 9 of the SAPOE Regulations outlines that when a claimant fails to participate they must show good cause for that failure within 5 working days.

It is clear from the Record of Proceedings and Reasons for Decision that the Tribunal considered the evidence, questioned (the appellant) about the evidence and allowed him to make his own comments and submissions.  The Record of Proceedings paraphrases one of the responses from (the appellant) which potentially sheds light on the crux of the matter:

(The appellant)
Is doing exactly the same thing on the scheme as he did in 2014, ie. Drafting a curriculum vitae, preparing for interview, being shown how to fill in an application form, guidance re health & well-being and diet.

The LQM also paraphrased his response when asking what went wrong at the Engagement interview:

(The appellant) 
He wanted to know why he had to do the Steps 2 Success programme all over again.

He has been on benefit for 20 years.  He has done New Deal / Steps to Work / Steps 2 Success – new name – all the same.

At paragraph 11 of the Reasons for Decision the LQM states:

It was clear to the Tribunal that (the appellant) thought that repeating the Steps 2 Success Scheme with the same contractor would not be of assistance to him.  He has not been employed for 20 years, has limited experience and no qualifications, has health problems and does not see any change ahead.

The Tribunal then considered the issue of good cause at paragraph 12 and 13 of the Reasons for Decision.  It went on to find that the SAPOE Regulations give the Department the power to require participation in the Steps 2 Success Scheme and that (the appellant’s) belief in the lack of value to him of the Scheme is not “good cause”.

I respectfully submit that, for the reasons outlined below, the tribunal further erred in its treatment of the issue of good cause.

In PL v Secretary of State for Work and Pensions (JSA) [2013] UKUT 0227 (AAC) or CJSA/2428/2012, the claimant was a man in his 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.

In that case the Upper Tribunal Judge found that the tribunal erred in finding that the claimant did not have good cause for his failure to attend the scheduled appointment by virtue of regulation 73(2A) of the Jobseekers Allowance Regulations 1996.  However, Judge Ward went on to state:

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 …””

With regard to schemes for assisting people to gain employment, the Northern Ireland equivalent of section 19(5)(b) of the Jobseekers Act 1995 is Article 19A(5)(d) of the Jobseekers (Northern Ireland) Order 1995.

I submit that, even though the present case involves a different employment programme to that dealt with in PL v Secretary of State for Work and Pensions, similar considerations apply in this case.  (The appellant) during the oral hearing, raised concerns about the effectiveness of the assistance being offered to him by People Plus during a second period of participation on the Scheme even going so far as to indicate that he would be doing exactly the same thing on the Scheme as he did in 2014.  However, in Section 4 of the Appeals Officer’s submission to the Tribunal it is stated that (the appellant) was referred onto the Scheme again for “another 12 months of more intensive help from the Contractor”.  Although it is only briefly touched upon, this represents a conflict in the evidence before the Tribunal.  I respectfully submit that the correct course of action would have been for the Tribunal to adjourn to investigate (the appellant’s) concerns more thoroughly and to allow both the Department and the lead contractor to respond accordingly, particularly with regard to (the appellant’s) current skills, experience and the appropriateness of the scheme for him, as well as to obtain information about any previous training or placements that he may have undertaken in the past.  The lead contractor and the Department could then have been given the opportunity to respond to this.  This approach was considered and endorsed by the Northern Ireland Chief Commissioner in PL-v-Department for Social Development (JSA) [2015] NI Com 72 or C10/14-15(JSA).

I submit that even if the Tribunal had been in a position to determine that (the appellant) had failed to participate on the Scheme, by failing to adopt the above course and exercise its inquisitorial role, it was not in a position to determine on a definitive basis that (the appellant) did not have good cause in accordance with regulation 9 of the SAPOE Regulations.  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 not being made aware of PL v Secretary of State for Work and Pensions or PL v Department for Social Development, consideration of which might have led to a different outcome in this case.

With the above in mind, I submit that the Commissioner should set the tribunal’s decision aside in this instance.  If the Commissioner agrees, I submit that this matter should be remitted to a new tribunal for rehearing since further information and evidence will be required before the issue of failure to participate and good cause can be properly resolved.’

14.	I agree with Mr Barker’s analysis and for the reasons which have been set out by him agree that the decision of the appeal tribunal is in error of law.

	Disposal

15.	The decision of the appeal tribunal dated 12 December 2016 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.

16.	I make the following directions:

	(i)	The Department is directed to prepare a further submission for the appeal before the differently constituted tribunal.  The further submission should draw on the detailed analysis of the issues arising in the appeal undertaken by Mr Barker and as set out above.

	(ii)	The further submission is to be shared with the appellant in advance of the re-listing of the appeal in order to allow the appellant to prepare his own submissions in connection with the issues arising in the appeal.

	(iii)	The appeal is to be listed as an oral hearing.

	(iv)	A Presenting Officer from the Department is to attend the oral hearing.

(signed):  K Mullan

Chief Commissioner

10 January 2018