CJSA 2520 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal.

2	The claimant and appellant is appealing with my permission against the decision of the Liverpool appeal tribunal on 22 January 2002 under reference U 03 203 2001 01650.

3	For the reasons below, the decision of the tribunal is set aside. I take instead the decision that the tribunal should have taken. This is:
The claimant is entitled to jobseeker's allowance from and including 26 July 2001.  
But this decision applies only up to 5 August 2001, as the claimant started work on 6 August. 

4	I deal with the case briefly as it is common ground that the decision of the Secretary of State was wrong, and the tribunal was wrong in law in confirming it.  The decision set out at paragraph 3 is adopted from the submission of the secretary of state's representative.  The case was deferred at an earlier stage because it might involve issues common to my decision CJSA 2652 2001, then under appeal to the Court of Appeal. The Court of Appeal allowed the appeal in Ferguson v Secretary of State for Work and Pensions [2003] EWCA Civ 536, 12 March 2003. However, the secretary of state's representative now accepts that there is a different approach that could, and should, be taken in this case and under which the appellant wins. 

5	This case concerns facts also of concern in the Ferguson case, but not directly in issue in that case. The claimant (Mr J) claimed jobseeker's allowance on 16 July 2001, and his claim form was received on 25 July. He was told to “sign on” (to use the usual phrase) on 8 August. He did not do so because he started work on 6 August. On 10 August he sent in his signing on card (ES40). It did not reach the Employment Office until 22 August. On 16 August, his claim was closed for failure to sign on. 

6	The decision to close the claim was made under regulations 23 to 27 of the Jobseeker's Allowance Regulations 1996. It was based on the approach that Mr J last signed on on 25 July 2001, so could not receive benefit beyond that date. Put at its simplest, the Court of Appeal in Ferguson affirmed that approach.  The decision maker also noted that the claimant had not returned forms sent to him at the time, but nothing now turns on that.  The tribunal’s decision, again put at its simplest, endorsed the decision of the Secretary of State to close the claim. This it did largely by reference to the submission made by the secretary of state's representative to the tribunal.

7	Submissions were exchanged between the parties after the decision in Ferguson was issued. At that stage the secretary of state's representative made a submission supporting the appeal on an entirely new ground. His ground for doing so was that the Secretary of State should have taken the ES40 (the signing on card that arrived late) as an application for revision of the decision refusing the jobseeker's allowance. Further, the claimant had sent in a detailed appeal letter  and that should also have been considered as an application  to revise the earlier decision. The decision closing the claim was made on 16 August. The ES40 arrived belatedly on 22 August. The notification of the closure was received by Mr J on 23 August, having been sent just before the ES40 turned up late.  His letter of appeal arrived on 25 August. Both were within one month of the decision.

8	Regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 permits the Secretary of State to revise any decision if the process of revision is started within one month either of the notification of the decision or of a timely appeal against the decision. A decision may, under regulation 3 (and under section 9 of the Social Security Act 1998), be revised on any ground if the one month time limit is met. The Secretary of State now accepts – if I may say so rightly – that both the late ES40 and the letter of appeal should have triggered consideration of a revision. Further, the secretary of state's representative accepts that it would be appropriate to revise the decision closing the claim to a decision accepting that the claimant was available for work until the day before he started work on 6 August.  

9	 Is this submission consistent with the decision of the Court of Appeal in Ferguson?
The decision of the Commissioner in CJSA 2327 2001 that closing a claim for failure to sign on is a decision was referred to by counsel for the Secretary of State. It was  noted without comment at paragraph 26 of the judgment of Arden LJ. I assume from that reference that this issue is not in dispute.

10	Counsel for the Secretary of State also referred to the Social Security and Child Support (Decisions and Appeals) Regulations 1999, but not to regulation 3. Regulations 16 to 18 were relied on by counsel to fill a gap in the Jobseeker's Allowance Regulations 1996 on which I had commented in the decision under appeal. On this aspect of the argument for the Secretary of State, Arden LJ (after setting out several of the regulations) commented:

As I see it, the answer to [the concern expressed by the Commissioner about a gap in the Jobseeker's Allowance Regulations 1996] has been provided by the Secretary of State’s reference to the Social Security and Child Support (Decisions and Appeals) Regulations 1999, from which I have read extracts. Accordingly, there is separate statutory machinery which comes into operation if there is a failure to provide information or evidence and therefore it is not significant, in my judgment, that the failure to provide information is not a cessation event for the purposes of regulation 25. 

11	There was no specific mention of regulation 3 in Ferguson but, with respect, the general reasoning of Arden LJ  about those Regulations clearly also applies to regulation 3. The principle is that the Jobseeker's Allowance Regulations 1996 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999 both provide machinery to deal with claims for jobseeker's allowance. On that basis it is open to the Secretary of State to revise any decision closing a claim if the time limits are met. And it is open to a tribunal (or a Commissioner in place of the tribunal) to make such a revision if the Secretary of State has refused to make it. In this case, it would appear that technically the Secretary of State has not refused to make a revision. But the secretary of state's representative, now concedes that he should have considered and made the revision. On the basis of that concession, I have no hesitation in adopting the secretary of state's representative’s submission and awarding the jobseeker's allowance.
								
David Williams
									Commissioner
									
17 June 2003