CSU/7/1995

The Social Security and Child Support Commissioners
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL TO THE COMMISSIONER FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL UPON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
COMMISSIONER: J G MITCHELL
Tribunal :
Tribunal Case No :
 
1. My decision is that the decision of the social security appeal tribunal dated 20 January 1995 is erroneous in law and is set aside. The decision which I give in its place is that the claimant falls to be disqualified from 24 October 1994 to 7 November 1994 (both dates included) under section 28 of the Social Security Contributions and Benefits Act 1992 upon the ground that after a situation in employment had been properly notified to her as vacant she without good cause refused to accept that situation when offered to her in terms of section 28(1)(b). The disqualification would have been a disqualification for receiving unemployment benefit in the said period if the claimant had otherwise had right to that benefit.
2. This is an appeal by the adjudication officer against the above-mentioned decision of a tribunal on 20 January 1995 which held, allowing the claimant's appeal, that she had not incurred any disqualification under section 28(1)(b) because she had not refused to accept the situation offered to her. The appeal was dealt with at an oral hearing held before me at which the adjudication officer was represented by Mr G Liddle, Advocate, instructed by the Solicitor acting in Scotland on behalf of the Department of Social Security. The claimant, who did not attend, was represented by Mr Phillips, a welfare rights officer with Strathclyde Regional Council Social Work Department. I am obliged to both representatives for their submissions.
3. The essential facts of this case are not in dispute. The claimant, a single lady born on 30 August 1954, last worked in 1975 as a cleaner. More recently she had undertaken training courses with a view to return to work. She completed a 3 month period of training in a work preparation course with Enterprise Ayrshire on 23 September 1994 and claimed unemployment benefit on 27 September 1994. On 20 October the claimant was notified by the Employment Service on behalf of the Secretary of State of a vacancy in her home town of Ardrossan for a lampshade maker at an initial wage of £79 per week for a 43½ hour week. She attended an interview with the employer on Friday, 21October 1994 and was offered the position to start on the following Monday, 24 October 1994. The claimant agreed but failed to appear for work on Monday 24 October 1994. She subsequently explained that she had realised over the weekend that the wage was insufficient to enable her to meet her outgoings and debts. By a decision notified to the claimant on 10 November 1994 and adjudication officer decided that the claimant would have been disqualified for receiving unemployment benefit from 24 October 1994 to 31 December 1994 if she had otherwise had right thereto because she had without good cause refused to accept a vacancy in employment properly notified to her. The claimant appealed to a social security appeal tribunal.
4. The tribunal unanimously upheld the claimant's appeal and held that she would not have been so disqualified. The tribunal made the following findings of fact:-
  
"1. The appellant claimed Unemployment Benefit from 27.9.94.
2. The appellant attended a job interview at Ardbride Products on 21.10.94.
3. She was offered a job. She accepted the job and agreed to start on 24.10.94 but did not start.
4. The income offered did not cover her basic outgoings".
The tribunal's reasons were stated as follows:-
  
"It was considered that since the appellant did accept the offer of employment Section 20(1)(b) (sic) of the Social Security (Contributions and Benefits) Act 1992, did not operate to disqualify her from receiving Unemployment Benefit and it was further considered that in the circumstances of the case it was not appropriate for any other headings to be considered at this stage but to simply allow the appeal. It was considered that the case of R6/50(UB) (sic) were different from the circumstances of this case and that in this case the appellant clearly accepted the offer".
5. Section 28 of the Social Security Contributions and Benefits Act 1992 contains the following material provisions:-
  
"28. - (1) Subject to section 29 below a person shall be disqualified for receiving unemployment benefit for such period not exceeding 26 weeks as may be determined in accordance with Part II of the Administration Act if -
  
(a) he has lost his employment as an employed earner through his misconduct, or has voluntarily left such employment without just cause;
(b) after a situation in any employment has been properly notified to him as vacant or about to become vacant, he has without good cause refused or failed to apply for that situation or refused to accept that situation when offered to him;
(c) he has without good cause neglected to avail himself of a reasonable opportunity of employment;
(d) he has without good cause refused or failed to carry out any official recommendations given to him with a view to assisting him to find employment, being recommendations which were reasonable having regard to his circumstances and to the means of obtaining that employment usually adopted in the district in which he resides;
(2) ......
(3) ......
(4) ......
(5) For the purposes of subsection (1) above regulations may -
  
(a) prescribe matters which are or are not to be taken into account in determining whether a person does or does not have good cause for any act or omission; or
(b) prescribe circumstances in which a person is or is not to be regarded as having or not having good cause for any act or omission;
but, subject to any such regulations, in determining for the purposes of that subsection whether a person does or does not have good cause for any act or omission, there shall be disregarded any matter relating to the level of remuneration in the employment in question.
(6) For the purposes of this section -
  
(a) "properly notified" in subsection (1)(b) ..... means notified by the Secretary of State, a local education authority or some other recognised agency, or by or on behalf of an employer;
......"
6. Section 29 of the Social Security Contributions and Benefits Act 1992 contains the following material provisions:-
  
"29. - (1) Nothing in section 28 above or in regulations under that section shall be taken to disqualify a person from receiving unemployment benefit by reason only of his refusal -
  
(a) [inapplicable]
(b) to seek or accept during the permitted period any employment other than employment in his usual occupation at a level of remuneration not lower than he is accustomed to receive.
(2) ......
(3) In this section -
"permitted period", in relation to any person, means such period, whether expired or not, as may be determined in accordance with regulations by an adjudication officer on the submission of the question whether that person is disqualified under section 28 above for receiving unemployment benefit; and any such regulations may prescribe -
  
(a) the day on which any such period shall be regarded as having commenced in any case;
(b) the shortest and longest periods which may be so determined in any case; and
(c) criteria to which the adjudication officer is to have regard in determining the permitted period in any case; and ....."
7. Regulation 12E of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 contains the following material provisions:-
  
"12E. - (1) This regulation shall have effect for the purposes of section 20(1) (disqualification for unemployment benefit).
(2) Subject to paragraphs (3) to (5), in determining whether a person does or does not have good cause for any act or omission for the purposes of subsection (1)(b) to (g) of that section the matters which are to be taken into account shall include the following -
  
(a) any condition or personal circumstance of that person which indicates that a particular employment, official recommendation or course of training would be likely to or did -
  
(i) cause serious harm to his health; or
(ii) subject him to excessive physical or mental stress;
(b) any religious or conscientious objection, sincerely held by the person, to his undertaking a particular employment, or following a particular official recommendation or participating in a particular course of training;
(c) any responsibility for the care of another member of his household which would, or did, make it unreasonable for the person to undertake a particular employment, follow a particular official recommendation or participate in a particular course of training;
(d) the time it took, or would normally take, for the person to travel from his home to the place of the employment or training and back to his home by a route an means appropriate to his circumstances and to the employment or training;
(e) the expenses which were, or would be, necessarily and exclusively, incurred by the person for the purposes of the employment or training, together with any expenses of travelling to and from the place of the employment or training by a route and means appropriate to his circumstances, if those expenses did, or would, represent an unreasonably high proportion of - 
  
(i) in the case of employment, the remuneration which it is reasonable to expect that he would derive from that employment; or 
(ii) in the case of training, the income which he received, or would receive, from participation in that training.
(3) For the purposes of paragraph (2)(c), in considering whether expenses did, or would, represent an unreasonably high proportion of remuneration or income, the principle shall apply that the greater the level of remuneration or income the higher the proportion thereof which it is reasonable should be represented by expenses.
(4) Subject to paragraphs (5) and (6), a person is not to be regarded as having good cause for any act or omission for the purposes of subsection (1)(b) to (g) of section 20 if, and to the extent that, the reason for that act or omission relates to -
  
(a) his income or outgoings or the income or outgoings of any other member of his household, or the income or outgoings which he or any other member of his household would have if he were to become employed or to participate in training, or did have whilst participating in training; but for the purposes of this sub-paragraph a person's outgoings shall not include any expenses taken into account under paragraph (2)(e);
(b) the time it took, or would normally take, for the person to travel from his home to the place of the employment, or the place of the training, and back to his home where that time was or is normally less than one hour either way by a route and means appropriate to his circumstances and to the employment, or training, unless, in view of the health of the person or any responsibility for the care of another member of his household, that time was or is unreasonable.
(5) Where a person has undergone training for a particular kind of employment for a period of not less than 2 months, for the purposes of subsection (1)(b) to (d) of section 20, a person is to be regarded as having good cause for a period of 4 weeks following the last day of the week in which the training ends for -
  
(a) refusing or failing to apply for, or refusing to accept, employment of any other kind when offered to him;
(b) neglecting to avail himself of a reasonable opportunity of employment of any other kind;
(c) refusing or failing to carry out an official recommendation given to him with a view to assisting him to find employment of any other kind.
(6) Where a person has been notified by an agency, or by or on behalf of an employer, of a situation in any employment which is or is about to become vacant, that person shall be regarded -
  
(a) for the purposes of paragraph (b) of section 20(1) as having good cause for refusing or failing to apply for, or for refusing to accept, that situation, and
(b) accordingly, for the purposes of paragraph (c) of that provision, as having good cause for neglecting to avail himself of that opportunity of employment,
unless one of the conditions specified in paragraph (7) is satisfied.
(7) The conditions referred to in paragraph (6) are -
  
(a) that the situation has also been notified to the person in question by the Secretary of State; ......"
8. Regulation 12F of the above-mentioned regulations provides so far as material:-
  
"12F - (1) For the purposes of section 20A(3) (exemptions from disqualification for unemployment benefit), the permitted period shall not be less than a period of 7 days (including a Sunday) and any such period -
  
(a) shall begin on the first day for which a person makes a claim for unemployment benefit since the last day on which he was in employment, or in vocational training in his usual occupation, or incapable of work; and
(b) shall end not more than 13 weeks after it begins.
(2) In determining the permitted period in any case, regard shall be had to -
  
(a) the person's usual occupation and any relevant skills and qualifications which he has acquired;
(b) the length of the periods during which the person has undergone training relevant to his usual occupation;
(c) the length of the periods during which the person has been employed in his usual occupation and the period since he was last so employed;
(d) the consideration that the more skilled the usual occupation and the greater the extent to which the skills in that occupation have been exercised recently, the longer the permitted period;
(e) the availability and location of employment in his usual occupation;
(f) any determination made under regulation 7B (restrictions on availability for employment)".
9. On behalf of the adjudication officer Mr Liddle submitted that the decision of the tribunal was erroneous in law. He submitted that section 28(1)(b) was to be considered in the context of the other provisions of section 28 dealing with persons who had become what he called "intentionally jobless" in various circumstances. The reference in section 28(1)(b) to a "situation" just meant a job. In order to accept a situation a person would have to submit to employment and take up the job. He referred to dictionary meanings of the word "accept" and suggested that the claimant never truly accepted the situation and should be regarded as having refused it. If he was wrong in that submission then the tribunal ought to have considered the operation of the alternative provisions of section 28(1)(a) and (c). Despite the warnings as to necessary precautions in taking up a new case referred to in reported decision R(U)2/71 Mr Liddle submitted that the tribunal would have been entitled to go ahead on one or other of the alternative provisions since no new facts were involved and to do so despite the claimant's absence from the hearing. He further submitted that since in cases where section 29 applied any disqualification under section 28 was excluded, the tribunal ought logically to have dealt with the former provision first.
10. On behalf of the claimant Mr Phillips submitted that the evidence showed that the claimant intended to accept the vacancy and did accept it. He suggested that there was a time significance in the expression "....when offered ...." in section 28(1)(b). There was, he said an agreement here although either party might have refused to implement it. He suggested that the case might more appropriately be dealt with under paragraphs (a) or (c) but he submitted that it was apparent from the tribunal's reasons that they had considered that possibility and had decided against dealing with the case on an alternative basis. It followed that the tribunal had not failed to exercise their discretion to consider whether or not to entertain a different case. Although the tribunal should perhaps have considered section 29 first that was not he submitted a fatal error in the circumstances of the case. Although the decision of the tribunal was not fully reasoned he submitted that it should stand.
11. I do not find myself able to accept either set of the above competing submissions in their entirety. I agree that it is necessary to consider section 28(1)(b) in its context. I also agree that section 29 providing circumstances of exemption from disqualification ought perhaps logically to be dealt with first, but the significance of the omission of reference to that section depends largely on the correct answer to the issue arising on section 28(1)(b). There is in my mind no doubt that on Friday, 21 October 1994 the claimant expressed acceptance of the offer of employment which was made to her that day. Equally I have no doubt that over the next 48 hours the claimant decided against taking up the job and did not do so. The statutory provisions of section 28(1)(b) refer to a "situation in any employment" and to a person who has "refused to accept that situation when offered to him". In the ordinary case acceptance of an offer of a situation will be tantamount to acceptance of the situation in the employment. However I cannot believe that Parliament intended by the words used that it should be sufficient to defeat the provision in section 28(1)(b) to express an acceptance in theory but repudiate in practice. I consider the statutory provisions referring to the acceptance of a "situation" enable what would otherwise be an absurd result to be avoided. Applying that approach to the facts of this case I conclude that the claimant did not "accept the situation" within the meaning of section 28(1)(b).
12. I am unable to attach any decisive significance to the expression "...when offered ..." as suggested by Mr Phillips. I consider that Mr Liddle was probably correct in submitting that it just means "after it had been offered". However even if the expression was intended to have some more definite time connotation linking the refusal to accept with the offer of the situation, the claimant's refusal to accept the situation manifested by her refusal to take up the employment was in my view sufficiently close in time to the offer to come within the wording of the paragraph.
13. In the result I am satisfied that the tribunal in the present case erred in law in deciding that the claimant had not fallen foul of the provisions of section 28(1)(b). It follows that they also erred in not considering section 29 or the other possible relieving provisions available under the provisions of statute and regulation quoted above. In the circumstances the question of the propriety or otherwise of the tribunal proceedings, particularly in the claimant's absence, to consider the applicability of the alternative provisions of section 28(1)(a) or (c) does not arise, but I am not to be taken as accepting Mr Liddle's submission that this could have been properly done without an adjournment and notice to the claimant.
14. I set aside the decision of the tribunal. It was suggested by Mr Phillips that the case ought in that event to be remitted to another tribunal to allow further consideration of the possible relieving provisions. However as already mentioned there is no dispute regarding the essential facts of the case and the reasons for the claimant's decision not to take up the employment. The effect of the provisions in question in the light of those facts does not in my view leave room for any substantial doubt or argument beyond what was advanced to me. I have therefore decided that a remit to another tribunal would not be justified and that it is expedient for me to exercise the power to substitute my own decision for that of the tribunal.
15. I consider first the question of the claimant's possible relief from any disqualification under the provisions of section 29 relating to the "permitted period". Section 29(1)(b) is of possible relevance but is barely applicable to the claimant's circumstances in its reference to the "usual occupation" and a level of remuneration not lower than the person is "accustomed to receive". However on the assumption that the provision might just be applicable it is necessary to look at the regulations made under section 29 and in particular regulation 12F quoted above in this decision. The period of disqualification in terms of that regulation is to be not less than 7 days nor more than 13 weeks from the first day in respect of which the person makes a claim for unemployment benefit. I have considered the factors referred to in regulation 12F(2) so far as relevant in this case. The claimant's only previous occupation appears to have been as a cleaner many years before. The papers show that she underwent training in 1993 which appears to have been relevant to that occupation but the claimant's employment in that occupation in the past must necessarily have been relatively brief having regard to her age and the fact that it ended in 1975. The occupation of a cleaner is relatively unskilled and the claimant had not been so employed for about 19 years at the material time. Having regard to her tenuous connection with a job as a cleaner and the absence of any evidence of likely suitable vacancies in that occupation it appears to me that the minimum period of 7 days would be appropriate if any permitted period were to be regarded as justified on the facts of the present case. On that basis since the claimant claimed unemployment benefit on 27 September 1994 and the issue of employment as a lampshade maker did not arise until 21 October 1994 section 29 would not present any bar to disqualification of the claimant under section 28.
16. Returning to the provisions of section 28(1)(b), it is of course necessary that the situation in question has been "properly notified" to the claimant. "Properly notified" is defined in sub-section 6 of section 28 as meaning, among other things, notified by the Secretary of State as occurred in this case. As I have held that the claimant refused to accept that situation the next question is whether she did so "without good cause" within the meaning of section 28(1)(b). Unlike the issue of good cause in other contexts the circumstances which are or are not to be taken into account as relevant are extensively laid down in regulation 12E. Specific circumstances relevant to the question of good cause are stated in regulation 12E(2)(a) to (e). The actual reasons for the claimant's decision were clearly explained by her in her written response to enquiries and in her grounds of appeal. These essentially related to the inadequate nature of the wage offered in relation to her financial commitments. None of the circumstances referred to in regulation 12E(2) have ever been suggested to be applicable. While financial considerations might have entered into the consideration of good cause by way of the expenses referred to in sub head (e) of paragraph (2) of the regulation, the claimant's employment was, as noted above, local, and neither that sub-head nor sub-head (d) relative to the length of time taken in travelling nor indeed any of the other provisions of the paragraph arise for consideration in this case.
17. Regulation 12E(5) does provide good cause for a person refusing employment in an occupation other than that in which he or she has within the previous 4 weeks undergone training for a period of not less than 2 months. The papers in this case show that the claimant had undergone a period of training of 3 months within the 4 week period mentioned. However the nature of that training is shown not to have been specific to any particular employment but to have been in the nature of course on preparation for work generally. I therefore conclude that paragraph (5) of the regulation is not of assistance to the claimant. Paragraph (6) and (7)(a) in effect provide good cause for a refusal to accept a situation unless the situation had been notified to the person in question by the Secretary of State. As there was notification of the situation in this case by the employment service on behalf of the Secretary of State, as well as of course directly by the employer, I conclude that paragraph (6) does not afford the claimant any relief from potential disqualification either.
18. Paragraph (4) of regulation 12E specifically excludes as good cause a reason relating to the claimant's income or outgoings and section 28(5) of the Contributions and Benefits Act itself expressly directs that any matter relating to the level of remuneration in the employment in question is to be disregarded when considering possible good cause. As the claimant has made it perfectly clear that these were the considerations which caused her to reject the employment I conclude that it is not possible for the claimant to establish good cause within the meaning of section 28(1)(b) for refusing to accept the employment.
19. In these circumstances it is necessary to consider the appropriate period of disqualification under section 28. Such disqualification is not to exceed 26 weeks. The adjudication officer originally sought to impose a disqualification of 10 weeks from 24 October 1994, ending on 31 December 1994. the adjudication officer in his submission to the tribunal however submitted that that was an inappropriate disqualification and suggested the substitution of a period of 4 weeks. Mr Liddle on behalf of the adjudication officer supported that restricted period of disqualification before me. I have of course to exercise a judicial discretion in determining the appropriate length of the period of disqualification in this case. I take into account that although it is not capable of constituting good cause the claimant had some substantial justification for refusing the employment in question. Although it bore to be employment at a weekly wage of £79 for 12 weeks while training, rising to £103 per week thereafter, the details recorded at page 37 of the appeal papers indicate that employment was only definitely offered until Christmas 1994 by which date the training period would not even have expired. Furthermore the initial wage, even in a training period, appears to have been remarkably low for a working week of 43½ hours. As to the other circumstances of the refusal the claimant accepts that she did not properly consider the implications of the offer at the time and that she ought to have notified the employer of her decision. Taking all these circumstances into account as best I can I have decided that disqualification for the period of two weeks would be appropriate in this case. My substituted decision is therefore as set forth in paragraph 1 above.
20. To the extent indicated in this decision the appeal of the adjudication officer is upheld.

J.G. Mitchell
Commissioner 
22 February 1996