IN THE UPPER TRIBUNAL	Case No.  CJSA/1511/2009
ADMINISTRATIVE APPEALS CHAMBER

1.	This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Stoke-on-Trent on 9 March 2009. For the reasons set out below I dismiss the appeal. 

2.	The Claimant is a man now aged 54. 

3.	The Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 28 August 2008, that a sanction be imposed disentitling him to JSA in respect of the period 30 August 2008 to 27 February 2009 on the ground that he had lost place on an intensive activity period training scheme “through misconduct”, within s.19(5)(c) of the Jobseekers Act 1995.  

4.	It is common ground that the facts were that the Claimant was required to attend a work experience course with Juniper Training, beginning on 23 June 2008, and that he attended on 23 June, but did not attend on 24, 25 or 26 June, and did not inform Juniper why he was not attending, and did not respond to messages left for him. He was therefore dismissed from the course on 26 June. The Department then sought further information from Juniper Training and the Claimant, and the sanction decision was made, as I have said, on 28 August 2008.

5.	The Claimant has made the following points in support of this appeal. 

6.	First, that the course was irrelevant to his training and work needs, and therefore that he was better off spending his time actively seeking work, which he did. He has relied in support of this contention on the fact that, according to him, Juniper Training have since been “axed” as course providers. However, it was not for the Claimant to judge whether the scheme would be of benefit to him. That is for the Department to decide, at the time of considering whether to require him to attend the course. The only question was whether he had been required to attend it, and whether he had lost his place on it “through misconduct.” Although attending interviews elsewhere might have been a valid excuse for not attending on a particular day (or part of it), he did not inform Juniper Training of the reasons for his absence on three successive days, and the Tribunal was clearly entitled to find that he had lost his place through misconduct. 

7.	Secondly, he has contended that he was unable to start the course because the paperwork was not completed. However, it is clear that that alleged incident relates to a later course, apparently in September 2008 (p.37 – Record of Proceedings), not to the course which began in June 2008. 

8.	Thirdly, the Claimant has said that he did not like role play, in that he felt embarrassed, and that it was not relevant to his prospective employment, for which he is qualified, as a driver. However, again, it is not for the Claimant to judge the suitability of the course. 

9.	Finally, the Claimant has said that, owing to the stopping of his JSA, he had no money, and therefore could not afford to get to the course. Again, as far as I can see that cannot relate to this course, as his benefit had not been stopped by 23 June 2008, but to a later course. But in any event the Tribunal decided, and was in my judgment entitled to decide, that the Claimant could reasonably be expected to walk the 2.5 miles from his home to the course. 

10.	I do not therefore think that any of the points which the Claimant has made by way of justification for his not attending can possibly have meant that he did not lose his place on the course through misconduct. The Tribunal was right to reject the Claimant’s contentions. 

11.	The ground on which I gave permission to appeal was that the Tribunal appears to have been under the impression that the length of the sanction was discretionary, when in fact it can only have been a mandatory one of either 2, 4 or 26 weeks, depending on whether this was the first, second or third sanction: see reg. 69(1) of the Jobseeker’s Allowance Regulations 1996. The sanction history was not clear from the Secretary of State’s submission to the Tribunal, and I requested the Secretary of State to clarify it in her submission in this appeal. 

12.	The information which the Secretary of State has provided is that the Jobcentre’s computer system records only two sanctions. This one, and a sanction (apparently imposed on 25 June 2008 – see p.27) in respect of the period from 26 June 2008 to 23 July 2008 (i.e. 4 weeks), also for misconduct on an employment programme, apparently in May 2008 (see pp.20 and 28). However, the Jobcentre have stated, according to the submission, that it is possible that there were previous sanctions because the system only holds information for a limited period. The Secretary of State refers me to the “sanction information stencil” at p.13 of the papers, which appears to record a sanction in respect of the period 4 to 17 January 2008 (i.e. 2 weeks). The Claimant has not in his submission in reply disputed that there had been two previous sanctions, and I therefore consider that there was evidence before the Tribunal indicating (i) that the sanction imposed in respect of the Claimant’s losing his place on the course in June 2008 was the third such sanction which had been imposed and (ii) that the third sanction had been imposed within 12 months of the beginning of the second sanction period. On that footing, the requirements for a 26 week sanction set out in reg. 69(1)(d) of the 1996 Regulations were satisfied. Although, therefore, the Tribunal wrongly considered that it had a discretion as to the length of sanction, its actual decision upholding sanction decision was correct. 

13.	Nevertheless, I emphasise that the Secretary of State’s submission to the Tribunal was thoroughly unsatisfactory, as regards the correct length of sanction. It should have set out clearly what the dates of the previous sanction decisions were, and the periods in respect of which each sanction applied, with supporting evidence in so far as possible, so that the correct length of this sanction as being 26 weeks was clearly demonstrated. If the records which are kept do not enable that to be done (see above in relation to the computer system) then clearly the system for maintaining records as to the length of sanction needs to be reviewed. The terms of reg. 69(1)(d) require the Secretary of State to be able to prove, in the cases of a 26 week sanction, (i) that there have been two previous sanction decisions, and (ii) the period covered by the second one.

Charles Turnbull
Judge of the Upper Tribunal
1 December 2009