[2009] NISSCSC A1_08_09(JSA) (02 September 2009) 

Application No: A1/08-09(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKERS ALLOWANCE

Application by the above-named claimant for
leave to appeal to a Social Security Commissioner
on a question of law from a tribunal's decision
dated 27 February 2008

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

I refuse leave to appeal.

The decision of the appeal tribunal dated 27 February 2008 is not in error of law.  Accordingly, the application for leave to appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to jobseekers allowance (JSA) from 20 December 2006 to 27 December 2006 and from 28 December 2006 to 14 January 2007 is confirmed.

Background

On 15 January 2007 a claim form to JSA was received in the Department from the applicant.  Accompanying the claim form to JSA was a further form in which a request had been made for the back-dating of the application for the period from 20 December 2006 to 27 December 2006.

On 22 January 2007 a decision-maker of the Department decided that the applicant had not shown ‘good cause’ for a failure to attend a fresh claim appointment on 5 January 2007.  As will be noted below, the fresh claim appointment had been made in connection with an earlier claim to JSA.  Further, the decision-maker decided that the applicant’s claim to JSA, which had been received on 15 January 2007, could not be back-dated for the period from 20 December 2006 to 27 December 2006.

On 27 January 2007, the applicant was awarded entitlement to JSA from and including 15 January 2007.

On 10 February 2007 a letter of appeal was received in the Department.  The letter of appeal is stated to be against a decision which was issued to the applicant by way of a letter dated 22 January 2007.

Accordingly, the appeal was treated as being against the decision of the Department dated 22 January.

On 23 April 2007, the decision dated 22 January 2007 was looked at again but was not changed.

The appeal tribunal hearing took place on 27 February 2008.  The appellant was present as was a presenting officer.

The appeal tribunal disallowed the appeal, and confirmed the decision dated 22 January 2007.

On 22 April 2008 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.

On 25 August 2008, the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

On 30 September 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).

On 17 October 2008 observations were sought from Decision Making Services (DMS) and these were received on 6 November 2008.  Most significantly, in these observations, reference is made to an earlier claim to JSA, as follows:

‘4. The record of proceedings of the appeal hearing that was held on 27/02/08 shows that (the claimant) had handed in a letter (this would be the letter dated as received on 27/02/08) which the tribunal then considered.  In this letter (the claimant) referred to the previous claim he had made to JSA and queried why he had so far been denied payment whenever he had sufficient National Insurance contributions to allow him entitlement.  He asked in his letter for a reconsideration of his case or an explanation as to what was happening with that claim.

5. The Department’s presenting officer, when asked by the tribunal to comment on this issue, stated that she was not aware of any habitual residence argument.  It then appears that, because that issue was not related to the current appeal (on why (the claimant’s) claim to JSA was only paid from 15/01/07 and not allowable from 20/12/06) the tribunal proceeded to consider the issues before it.

6. (The claimant’s) comments to the tribunal focused on his claim history with the Department, explaining that his initial dealings with the Department’s officials in the Coleraine office had caused him upset.  He accepted his failure to attend the Coleraine office for his fresh claim appointment arranged for 05/01/07 was his fault and explained this as being attributable to the upset caused in the past.

25. This is that, whilst the issues raised by (the claimant) in the letter he submitted on the day of the tribunal hearing were not relevant to the decision under appeal, he did clearly state that he wanted the Department to reconsider, or at least provide a written explanation on, the decision that had been made in relation to the disallowance of his previous claim to JSA.

26. Furthermore, (the claimant) had already indicated in his letter of appeal dated 29/01/07 that that he had appealed a decision which was made on the grounds he was found to be not habitually resident – he stated this appeal was made on 23/01/07.  I feel I should provide some further information to the Commissioner, to confirm this matter has been properly addressed by the Department.

27. I have taken the opportunity of contacting Coleraine Jobs and Benefits Office to establish whether (the claimant) had ever submitted an appeal against the disallowance of JSA in regard to his previous claim.  I was provided with the following information:

28. (The claimant) claimed JSA from 15/11/06.  When deciding entitlement, the decision maker had to consider whether (the claimant) satisfied the habitual residence test.  (The claimant) had been required to sign every fortnight pending this decision as by doing so, he would aid his application for benefit by showing he was habitually resident.  However, due to confusion on his part as to his next signing day, he failed to attend on 12/12/06, so his last effective day for claiming ended on 28/11/06, which was the last day he properly signed.

29. Therefore, it is important to clarify that (the claimant’s) previous claim to JSA only existed for the period 15/11/06 to 28/11/06 due to the fact that he failed to sign.  This is the reason why a new claim to JSA was required in his case.

30. Departmental records show that a decision was later made on 20/12/06 finding that (the claimant) did not satisfy the habitual residence test in relation to the claim made from 15/11/06 – (the claimant) was provided with an explanation of this decision on 02/01/07 and he then appealed this decision on 23/01/07.  The decision was reconsidered on 23/04/07 in (the claimant’s) favour i.e. that he was entitled to JSA and on 24/04/07, a payment of £90.29 was issued for the period 18/11/06 to 28/11/06 (3 waiting days were imposed in respect of 15/11/06 to 17/11/06).

31. Therefore, I would inform the Commissioner that this matter has been resolved and I am not sure why (the claimant) would have submitted a letter to the tribunal on 27/02/08 indicating that this appeal was still outstanding.  I should point out that this letter is an exact copy of the letter (the claimant) sent to the decision maker in Coleraine office on 02/01/07 asking for an explanation as to why he was not entitled on his previous claim.  As stated at the above paragraph, (the claimant) was then provided with an explanation on the same date – 02/01/07.

32. It is clear, in any case, that the tribunal could not consider the issues he raised as they were not in relation to the appeal before it – as to whether his date of claim should be from 15/01/07 or from an earlier date.’

The written observations from DMS were shared with the applicant on 20 November 2008.

On 15 December 2008, further observations in reply to those from DMS were received in OSSCSC from the applicant.  In these observations, the applicant makes further reference to his earlier claim to JSA, which he submitted was made on 15 November 2006, and which he felt had been mishandled.

The observations in reply were shared with DMS on 23 December 2008.

In response to the observations from the applicant, DMS provided yet further observations which were received in OSSC on 14 January 2009.  In these observations DMS noted:

‘11. As (the claimant) has specifically raised the issue of the outcome of his first JSA claim, I would respectfully ask the Commissioner to consider the following:

12. On the day of the appeal hearing, 27/02/08, (the claimant) produced a copy of a letter he had sent to the decision maker in Coleraine office on 02/01/07 asking for an explanation as to why he was not entitled on his previous claim.  The decision to award JSA from 18/11/06 to 28/11/06 was made on 23/04/07.

13. I have taken the opportunity of contacting Coleraine office and a decision maker there has confirmed that, whilst (the claimant) was awarded JSA for the period of his initial claim, unfortunately he was not issued with a notification of this decision on 23/04/07 as would have been proper, together with his appeal rights.

14. It is clear therefore that (the claimant) has not been given the opportunity of appealing that decision and it is possible that his production of a letter to the tribunal expressing his dissatisfaction with that decision meant that (the claimant) had waited until his appeal hearing to try to address all matters regarding the decision making by the Department.

15. As the appeal tribunal was only able to consider the matters relating to the decision made by the Department on 15/01/07 regarding (the claimant’s) second JSA claim, (the claimant’s) actions would give rise to the question as to whether the Department should have been put on sufficient notice that he still wished to appeal the decision made on his first JSA claim.  In any case, it is now clear that the Department has still not provided (the claimant) with proper notification of the decision made on his first claim, including notification of his right to appeal that decision.

16. I would respectfully submit that this matter remains outstanding for the Department to address as there is case law to support the fact that; where a decision is made by the Department but not communicated to the relevant party, whilst this does not invalidate the decision, it nevertheless remains that the decision is not effective unless and until it is notified to that party.  I would refer to a House of Lords decision in support of this point, namely Regina v. Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant) [2003] UKHL 36. I refer in particular to paragraphs 26, 30 and 39 of that decision.

17. I would respectfully submit as I did on 05/11/08, that I do not support (the claimant’s) application for leave to appeal.  This would remain the case, despite the discovery that the Department has still not properly notified (the claimant) of the final decision made on his first claim to JSA from 15/11/06.  I would submit that the Department should now issue notification that properly informs him of the outcome, together with his right to appeal that decision should he remain dissatisfied.

18. I would also submit that this matter needs to be fully examined by a different tribunal should (the claimant) decide to appeal after being notified.  It is therefore not an issue that the tribunal held on 27/02/08 was able to decide upon, as at that time (and as indeed remains the case) (the claimant) had still not been properly informed as to how the Department had decided his first claim to JSA.

19. To assist the Commissioner, I have included with this submission, copies of the notifications that have been sent to (the claimant) by the JSA decision maker in relation to his first JSA claim.  Tab 1 is a copy of the first notification letter issued 20/12/06 and it can be seen from the wording of this letter, that it is unclear as to why (the claimant) was disallowed JSA from 15/11/06 at that time (it is likely that this is why he subsequently asked for an explanation).

20. Tab 2 contains a copy of the letter issued by the Department on 02/01/07 in response to (the claimant’s) request for an explanation.  It seems from this letter that his disallowance was as a result of his failing the habitual residence test.

21. As already stated, there is regrettably no notification of the decision made on 23/04/07 that awarded JSA from 18/11/06 to 28/11/06, but it appears this was done on the basis that the JSA decision maker was satisfied that (the claimant) was habitually resident, but could only pay JSA for this limited period as the claim had ceased due to (the claimant’s) failure to sign.

22. However, I would reiterate that these matters must be put before a new tribunal, once (the claimant) is properly notified of the final decision made on his claim to JSA from 15/11/06, but only if (the claimant) decides to appeal this decision.  As this decision is currently not notified to him and therefore does not yet have any legal effect in accordance with Anufrijeva v Secretary of State, then the tribunal held on 27/02/08 was not able to consider this decision.’

This further submission was shared with the applicant on 15 January 2009.

I directed an oral hearing of the application.  The oral hearing was attended by the applicant and by Mr Donnan from DMS.

Analysis

The decision under appeal to the appeal tribunal in the instant case was a decision dated 22 January 2007 in which a decision-maker of the Department decided that the applicant had not shown ‘good cause’ for a failure to attend a fresh claim appointment on 5 January 2007.  Further, the decision-maker decided that the applicant’s claim to JSA, which had been received on 15 January 2007, could not be back-dated for the period from 20 December 2006 to 27 December 2006.

The exchange of written observations between the applicant and DMS, and explanations given at the oral hearing, have revealed that the applicant had made an earlier claim to JSA; that a decision was made on 20 December 2006; that the applicant was provided with an explanation of this decision on 2 January 2007; that the applicant appealed against the decision dated 20 December 2006 on 23 January 2007; and that the decision dated 20 December 2006 was reconsidered on 23 April 2007 in the applicant’s favour.  What the exchange has also revealed is that the applicant was not issued with a notification of the decision dated 23 April 2007 together with his appeal rights against that decision.

At the oral hearing of the application, Mr Donnan confirmed that on completion of the present proceedings, the applicant would be given official notification of the decision dated 23 April 2007 and, most significantly, of his right to appeal against that decision.  On receipt of that knowledge, at the oral hearing, the applicant indicated that he would, in due course, be exercising his right of appeal against the decision dated 23 April 2007.  That, of course, is a matter entirely for the applicant.

Was the decision of the appeal tribunal, dated 27 February 2008, in error of law?
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.

An application to the Social Security Commissioner for leave to appeal requires the appellant to identify the grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law.

Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied that no error of law can be identified.

It is clear that the appeal tribunal undertook a rigorous and rational assessment of all of the evidence before it.

The appeal tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did.  Any conflict in the evidence before the appeal tribunal has been clearly resolved and explained.

The appeal tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence.  None of the appeal tribunal’s findings are irrational, perverse or immaterial.

The appeal tribunal applied the correct standard of proof, ie on the balance of probabilities, having no power to apply any other standard.

All issues raised by the appeal, either expressly or apparent from the evidence were fully examined by the appeal tribunal in conformity with its inquisitorial role.

The appeal tribunal’s application of the applicable legal rules and principles was wholly accurate.

The proceedings of the appeal tribunal were conducted in accordance with the principles of natural justice, and its decision is reflective of an apposite consideration of and, adherence to, such principles.

Read as a whole, the statement of reasons for the appeal tribunal’s decision provides a detailed explanation of the basis on which the appeal tribunal arrived at its conclusions on the issues before it.

It is clear that the appeal tribunal confined its consideration and deliberations to the decision under appeal.  It was, of course, appropriate and correct for it to do so.  It is equally clear that the applicant was concerned about the outcome of his first claim to JSA and, more importantly, his right to challenge the validity of that decision and the manner in which the application was dealt with.

It may be that it was the applicant’s desire to query the outcome of the first claim to JSA which was the driving force behind both his appeal to the appeal tribunal against the decision of the Department dated 22 January 2007, and his further application for leave to appeal to the Social Security Commissioner.  It may be that the further explanation of the requirement for formal notice of the decision on the first claim to JSA and his right of appeal against that decision will be sufficient to satisfy the applicant’s concern at the decision-making process, at least until any further appeal is lodged, heard and determined.

In relation to his application for leave to appeal against the appeal tribunal decision in the instant case, I have already noted that he must identify grounds or basis on which it is submitted the decision of the appeal tribunal is in error of law.  Having considered the application made by the applicant, and the grounds set out in the application, I am satisfied that no error of law can be identified.

(signed):  K Mullan

Commissioner

2 September 2009