IN THE UPPER TRIBUNAL	Case No.  CJSA/2280/2009
ADMINISTRATIVE APPEALS CHAMBER

Before Deputy Upper Tribunal Judge Mark

Decision:  The appeal is allowed.  The decision of the First Tier Tribunal is set aside and the decision of the secretary of state given on 4 February 2009 is restored.

REASONS FOR DECISION

1.	Section 19(2) of the Jobseekers Act 1995 provides that in any of the circumstances mentioned in section 19(5) of that Act, the allowance is not to be payable for such period between one and twenty six weeks as may be prescribed.  The circumstances mentioned in section 19(5) include refusing or failing, without good cause, to carry out any jobseeker’s direction that was reasonable and, without good cause, neglecting to avail oneself of a reasonable opportunity of a place on a training scheme or employment programme.

2.	The prescribed period is provided for by regulation 69 of the Jobseeker’s Allowance Regulations.  So far as relevant here, the prescribed period is 2 weeks in any case that is not otherwise prescribed for under regulation 69(1).  Regulation 69(1)(b)(i) prescribes a period of 4 weeks in any case (other than certain specified ones that are not in point here) in which, inter alia, “on a previous occasion the jobseeker’s allowance was determined not to be payable to him in circumstances falling within section 19(5)” and “(ii) the first date on which the jobseeker’s allowance was not payable to him on that previous occasion falls within the period of 12 months preceding the date of the determination mentioned in (b)(i) above”.  In essence, the regulation goes on to provide for a period of 26 weeks non-payment where there have been two previous determinations in that 12 months period.

3.	In this case, the claimant was in receipt of jobseeker’s allowance, and on two occasions within a 12 months’ period acted so as to give rise to one of the circumstances in section 19(5).  The occasion with which this appeal is concerned took place in October 2008.  At that time, no sanction had been imposed in the preceding 12 months.  A sanction was imposed, however, in December 2008, when it was determined that the allowance should not be paid for two weeks.   When the October 2008 events came to be considered by the secretary of state in February 2009, the secretary of state decided that the sanction required by regulation 69 was therefore a four week sanction.  

4.	The claimant appealed, in part against the finding that he had had no good cause for his conduct in that case.  The tribunal dismissed that part of his appeal, but determined that the appropriate sanction was only two weeks because in October 2008 there had been no previous sanction.

5.	In its statement of reasons, the tribunal applied its own reasoning in another case, a copy of which was annexed to that statement.  The tribunal, a very experienced Regional Tribunal Judge, gave his reasons as follows:

“In my judgement, the question of whether or not there is a previous occasion on which the JSA has been determined not to be payable is to be judged at the date of the refusal; not at the date of the Secretary of State’s decision.  It seems to me instinctively that the claimant’s rights or penalties crystallised at that point and are not to be changed by subsequent events.  This instinctive approach is consistent with the scheme of Regulation 69.  It makes sense that an erring claimant should receive the sting of the two week sanction before running the risk of a four week sanction and then a twenty-six week sanction.  By contrast on the Secretary of State’s interpretation, three refusals in one day would result in a thirty-two week sanction straight away.” 

6.	The secretary of state now brings this appeal with the leave of the Regional Tribunal Judge.  In doing so, the secretary of state has advised that, in the present case, there was a delay in referring the papers to the decision maker immediately, so that a determination was made in respect of a failure to attend on 3 November 2008 before the determination in respect of this failure to attend in October 2008.  That evidence was not before the tribunal, and cannot in any event affect the construction of the relevant provisions.  One can envisage various circumstances in which this issue can arise, of which the alleged facts in this case are just one example.  There may have been several such failures before any of them are dealt with by a decision maker.  There may have been an instant reference to the decision maker in the first case, but a decision may have been delayed while an issue of good cause was considered.

7.	The secretary of state submits that the relevant time references are based on when the determinations are made, not on when the claimant brings section 19(2) and (5) into play by his conduct.  That submission is not elaborated on, and there have been no submissions from the claimant.

8.	On a literal reading of regulation 69(1)(b), it is clear that it is a precondition of the sanction that there has been a determination that a jobseeker’s allowance is not to be payable in the circumstances set out.  It is also clear that each of the alternative circumstances, of which one must be satisfied, includes the requirement that on a previous occasion the jobseeker’s allowance was determined not to be payable to the claimant, and regulation 69(1)(b)(iii) provides that the first date on which the jobseeker’s allowance was not payable on that previous occasion falls within the period of 12 months preceding the date of the determination mentioned in (b)(i) above.  

9.	In my judgment, the regulation is clear that the date from which the 12 months is to be measured is the first date on which the jobseeker’s allowance was not payable as a result of the previous determination, and it is to be measured to the date of the determination under consideration.

10.	I very much doubt that the practical result of this would be that three refusals in one day would result in a thirty-two week sanction straight away.  It appears to me to be likely that these refusals would be dealt with together.  They may well be treated as a single refusal.  Even if they were not, if they were dealt with on the same day, the prescribed period would normally only begin after the date of the decisions (see regulation 69(2)), so that the first date on which the allowance was not payable under the first decision would come after, and not before, the date of the second and third determinations.

11.	I also note that by looking at the date of the refusal in determining whether there has been a previous determination could mean that an earlier date of non-payment could fall within the 12 months period, whereas if the date of determination was to be looked at in the second case, it would be more than 12 months after the earlier date of non-payment.  In that case, the tribunal’s interpretation of the provisions would be less favourable to the claimant than that which I have held to be the correct interpretation.

Michael Mark
Deputy Upper Tribunal Judge

6 January 2010