IN THE UPPER TRIBUNAL			Case No	CJSA/1408/2013
ADMINISTRATIVE APPEALS CHAMBER			CJSA/1409/2013

Before UPPER TRIBUNAL JUDGE WARD 

Decision:

I extend time so as to validate the claimant’s submission dated 15 June 2015.  Further, I waive the claimant’s non-compliance with the directions of 9 April 2015.

The appeals are allowed.

The decision of the First-tier Tribunal sitting at Plymouth on 24 September 2012 under reference SC200/12/00528 involved the making of an error of law and is set aside.

Acting under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), I substitute a decision in the following terms:

	The DWP’s decision of 6 February 2012 is set aside.  The proposed 	jobseeker’s agreement in respect of the claimant is to be referred to the 	Secretary of State under section 9(6) of the Jobseekers Act 1995 (“the 	1995 Act”) for determination whether it is reasonable to expect the 	claimant to have to comply with the proposed agreement and for 	consideration of whether to make direction under section 9(7).  This will 	carry fresh appeal rights to the First-tier Tribunal.

The decision of the First-tier Tribunal sitting at Plymouth on 24 September 2012 under reference SC200/12/00590 involved the making of an error of law and is set aside.

Acting under section 12(2) of the 2007 Act, I substitute a decision in the following terms:

	The appeal is allowed to the extent that the claimant is entitled to 	payments of the hardship allowance between 26 January 2012 and 17 	December 2012 (inclusive).

REASONS FOR DECISION

1. The case raises, in particular, significant issues about whether the form of jobseeker’s agreement in use in the period 2012 to 2014 was compliant with the law, the consequences if it was not, and the mechanisms for dealing with disputes in relation to it, particularly where those disputes are occasioned by matters said to relate to a claimant’s disability.  Readers who are interested in those issues rather than the minutiae of the process of this case may wish to skip paras [5] to [16]. 

2. The claimant had appealed to the First-tier Tribunal (“the tribunal”) against two decisions:

(a) in appeal SC200/12/00528 (now CJSA/1409/2013) against a decision dated 6 February 2012 in the following terms:

	“Jobseeker’s allowance is not payable from 04/01/2012. This is 	because [the claimant] has not, and cannot be treated as having, 	entered into a jobseeker’s agreement which remains in force from 	04/01/2012.”

I refer this as the “main appeal”.

While the claimant argues that his claim should run from 29 December 	2011, even if the scope of the original appeal against the decision did 	extend to the start date (as to which I make no finding), (i) the evidence 	at pp82-84 of file 1409 does not show that a claim was made on the 	earlier date, merely that the claimant tried to do so and (ii) the 	circumstances do not fall within any of the backdating provisions of the 	Social Security (Claims and Payments) Regulations 1987.

(b) in appeal SC200/12/00590 (now CJSA/1408/2013), against a decision dated 15 February 2012 in the following terms:

	“[The claimant] is not entitled to jobseeker’s allowance hardship 	payments from 26/1/12.  This is because he does not satisfy the 	conditions of entitlement to jobseeker’s allowance.”

I refer to this as the “hardship appeal”.

3. The claimant’s primary point in the main appeal was that he should not be expected to sign the form of jobseeker’s agreement which had been presented to him.  Much of his argument revolved around the law of contract, the relevance of which the tribunal dismissed, rightly: see 1995 Act, s.9(2) (set out at [18] below).  If one looks rather to the substantive issues, they are related to the claimant’s complaint that the proposed jobseeker’s agreement failed to address his asserted disabilities.  

4. In the hardship appeal the arguments as put forward were essentially the same, albeit the legal consequences were potentially different.

5. It would be fair to say that the claimant sets considerable store by asserting what he regards as rights he possesses in respect of his disability.  He has, or has had, a long-running civil action against the DWP.  In relation to the present matter, in grounds of appeal extending to 183 pages plus appendices, he sought permission to appeal from the First-tier Tribunal.  A District Tribunal Judge was persuaded to grant permission to appeal on the questions:

	”(i) whether the Tribunal accurately identified the issues on which it was 	required to make a decision for the purposes of the appeals and (ii) 	whether the proceedings were conducted in a manner fair to the 	appellant.”

The claimant has, further, at various points disputed the treatment he received in the course of the Upper Tribunal proceedings.  

6. The Secretary of State’s initial position was that:

	(a) he supported the hardship appeal inasmuch as the tribunal failed to 	accurately identify the issue and decide upon it;

	(b) the decision dismissing the appeal against the DWP’s decision in 	the main appeal was correct; and

	(c) he did not support the appeal insofar as it was based on the tribunal 	proceedings having been conducted in a manner unfair to the claimant.

7. In reply the claimant filed a submission consisting of a further 30 pages plus appendices of a further 196 pages.  Upper Tribunal Judge Williams directed an oral hearing of the appeals in Exeter (this Chamber of the Upper Tribunal’s regular venue in South-West England) but subsequently switched it to Plymouth to accommodate the claimant following a complaint by him.  The files were transferred to me to conduct that hearing.

8. Also listed with them was an application for permission to appeal in relation to a decision on the claimant’s disability living allowance, under reference CDLA/1318/2014.  The cases were listed together as a matter of administrative convenience for the Upper Tribunal and for the claimant, bearing in mind that Plymouth is not a regular venue.  Despite what the claimant asserts, there is no other link between them.  CDLA/1318/2014 has long since been adjudicated upon by the Upper Tribunal.

9. In the event the anticipated oral hearing did not happen.  This was because, despite my having offered to put in place what I regarded as a range of measures to assist the claimant at the most generous end of what might be regarded as reasonable adjustments he indicated that he would not be attending.  I accordingly cancelled the hearing and directed that the case be determined on the papers.

10. In reviewing the case thereafter I noted a point which, although undoubtedly related to the substance of the claimant’s complaint about the proposed jobseeker’s agreement, was not how it had thus far been articulated in legal terms at any stage.  It is discussed further below.  I raised it in Directions dated 20 June 2014, which required a submission on it from the Secretary of State and a submission from the claimant in reply.  As I disagreed with much of what was written on behalf of the Secretary of State, I issued further Directions on 24 October 2014, receiving a reply dated 11 November 2014.  As I found myself still in disagreement with the Secretary of State, by Directions dated 2 January 2015 I indicated my provisional views of the flaws in the analysis I was being offered, sought further information and offered a provisional indication of how I thought the appeals might fall to be dealt with.  I indicated that the claimant would be offered a chance to respond, but at the stage when the Secretary of State’s position had been definitively established.  Given the claimant’s evident difficulty (see e.g. [5] and [7] above) in providing submissions that were remotely concise, or adequately focussed, it appeared pointless (and a considerable burden both for him and for the Upper Tribunal) to require submissions from him on the Secretary of State’s position when it was less than definitively stated.  The Secretary of State’s reply of 3 February 2015 then raised a fresh issue, which I also considered to be misconceived.  In Directions of 6 February 2015 I set out why.  By a submission dated 26 March 2015 the Secretary of State accepted that my reservations in that regard were justified.

11. I should make clear that although I have repeatedly disagreed with written submissions from the Secretary of State, I am intending no criticism of his representative.  Indeed, he has shown a proper and constructive willingness to re-visit earlier submissions in the light of my comments challenging them in this difficult case.

12. By Directions dated 9 April 2015 (issued on 7 May) I summarised the position arrived at through the processes described in [10].  By this stage, the Secretary of State was effectively conceding both appeals, although on a basis which was unlikely to commend itself to the claimant in its entirety.  I directed a submission from the claimant, provided guidance as to what the submission needed to do and directed that the submission was not to exceed four pages of typed A4 without the prior permission of the Upper Tribunal.

13. By email dated 21 May 2015 the claimant asserted that the Direction was, as regards both the one month time limit for compliance and the four page limitation, unlawful and unreasonable. I took that as an application to review the Direction which on 27 May I refused, pointing out that the Directions in any event provided for an application to be made to make a longer submission, while an application could be made to extend time.

14. On 15 June 2015 the Upper Tribunal received the claimant’s submission.  It is 12 sides long, using a small font.  I take it as containing an implied request for time to be extended, which I grant: it was only 8 days late, which is of little significance in the overall timescale and there will have been no prejudice to the Secretary of State.

15. Not untypically for the claimant’s submissions, it contains at least some potentially apposite points but also passages that are irrelevant or repetitious or which rely on unreasoned criticism.  If the submission had been confined to the apposite points, the submission could have been contained within the limit imposed by the Directions.  However, I accept that the claimant, by his lights, has made an effort to keep the submission (relatively) short.  It would be disproportionate to exclude the submission in its entirety for non-compliance.  To limit consideration of the submission to the first four pages would be to fail to do justice to such potentially apposite points as the claimant does make, which are scattered throughout.  I therefore waive the non-compliance with the Directions of 9 April 2015 and confirm that the whole submission is being read and considered.  That does not mean, however, that I will descend to detail in dealing with matters that are irrelevant or repetitious, or which rely on unreasoned criticism.

16. The claimant appears to think that there may have been some sort of stitch-up between the Upper Tribunal and the Secretary of State.  He could not be more wrong.  The process set out in [10] involved a process of taking points that were evident to me from the file to the claimant’s advantage but which he had (not unreasonably) failed to articulate himself.  There followed a prolonged process of disagreement with points made by the Secretary of State before eventually the Secretary of State's acknowledgment that the disagreements were at least largely, if not entirely, justified was obtained.  I would add that it is by no means unusual for a judge not to invite a party or their advocate to make a submission on a point, if the judge is convinced that it is wrong in any event, so the claimant should not be surprised that he was not asked to reply to submissions that were misguided.  If the Secretary of State’s acknowledgement does not go as far as the claimant would wish, he has had the chance to say so, which he has taken up, and those points are being considered in the present decision. 

17. I turn to the relevant law.  In doing so, I do not address respects in which I considered the Secretary of State’s position erroneous and which he has since modified unless necessary to do so in order to address the position arrived at and the claimant’s dispute with it.

18. By section 1 of the 1995 Act:

	“(1) An allowance, to be known as a jobseeker’s allowance, shall be 	payable in accordance with the provisions of this Act.

	(2) Subject to the provisions of this Act, a  claimant is entitled to a 	jobseeker’s allowance if he –
	(a) is available for employment;
(b) has entered into a jobseeker's agreement which remains in force;
(c) is actively seeking employment;
…”

19. By section 9:

	“(1) An agreement which is entered into by a claimant and an 	employment officer and which complies with the prescribed 	requirements in force at the time when the agreement is made is 	referred to in this Act as “a jobseeker's agreement”.

	(2) A jobseeker's agreement shall have effect only for the purposes of 	section 1.

	(3) A jobseeker's agreement shall be in writing and be signed by both 	parties.
	…
	(6) The employment officer may, and if asked to do so by the claimant 	shall forthwith, refer a proposed jobseeker's agreement to the 	Secretary of State for him to determine— 
	(a) whether, if the claimant concerned were to comply with the 	proposed agreement, he would satisfy—
	(i) the condition mentioned in section 1(2)(a), or
	(ii) the condition mentioned in section 1(2)(c); and
	(b) whether it is reasonable to expect the claimant to have to comply 	with the proposed agreement.

	(7) On a reference under subsection (6) the Secretary of State — 
	(a) shall, so far as practicable, dispose of it in accordance with this 	section before the end of the period of 14 days from the date of the 	reference;
	(b) may give such directions, with respect to the terms on which the 	employment officer is to enter into a jobseeker's agreement with the 	claimant, as the Secretary of State considers appropriate; 
	(c) may direct that, if such conditions as he considers appropriate are 	satisfied, the proposed jobseeker's agreement is to be treated (if 	entered into) as having effect on such date, before it would otherwise 	have effect, as may be specified in the direction.

	(8) Regulations may provide—
	(a) for such matters as may be prescribed to be taken into account by 	the Secretary of State in giving a direction under subsection (7)(c); ….”

20. Chapter V of the Jobseeker’s Allowance Regulations 1996/207 (“the Regulations”) contains provisions about the jobseeker’s agreement.  Regulation 31 provides:

	“The prescribed requirements for a jobseeker's agreement are that it 	shall contain the following information –
	…
(c) any restrictions on the claimant's availability for employment, including restrictions on the location or type of employment, in accordance with regulations 5, 8, 13, 13A and 17;
(d) ...
(e) the action which the claimant will take –
(i) to seek employment; and
(ii) to improve his prospects of finding employment;
	...
(g) a statement of the claimant's right –
	(i) to have a proposed jobseeker's agreement referred to the Secretary 	of State; 
	(ii) to seek a revision or supersession of any determination of, or 	direction given by, the Secretary of State; and 
	(iii) to appeal to an appeal tribunal against any determination of, or 	direction given by, the Secretary of State following a revision or 	supersession . 
	….”

21. Regulation 32 provides:

	“In giving a direction under section 9(7)(c), the Secretary of State shall 	take into account all relevant matters including – 
	(a) where the claimant refused to accept the agreement proposed by 	the employment officer, whether he was reasonable in so refusing;
	(b) where the claimant has signified to the employment officer or to the 	Secretary of State that the claimant is prepared to accept an 	agreement which differs from the agreement proposed by the 	employment officer, whether the terms of the agreement which he is 	prepared to accept are reasonable; 
	(c) where the claimant has signified to the employment officer or to the 	Secretary of State that the claimant is prepared to accept the 	agreement proposed by the employment officer, that fact; 
	(d) the date on which, in all the circumstances, he considers that the 	claimant was first prepared to enter into an agreement which the 	Secretary of State considers reasonable; and 
	(e) where the date on which the claimant first had an opportunity to 	sign a jobseeker's agreement was later than the date on which he 	made a claim, that fact.”

22. Regulation 33 requires that a claimant be notified of any determination made, or direction given, by the Secretary of State under section 9.  “A decision in relation to a jobseeker’s agreement as proposed to be made under section 9…” carries a right of appeal to the First-tier Tribunal: see Social Security Act 1998, sch 3, para 8. The Secretary of State accepts that that right applies to the present case.

23. Regulation 34 provides for a jobseeker’s agreement to be treated as having been made in certain circumstances, none of which apply here.

24. It is also necessary to refer as background to regulation 13, which provides:

“(1) In any week a person may restrict his availability for employment in the following ways, if the circumstances set out apply.
(2)...
(3) A person may restrict his availability in any way providing the restrictions are reasonable in the light of his physical or mental condition.”

and to regulation 18, which provides:

“(3) In determining whether, in relation to any steps taken by a person, the requirements of section 7(1) are satisfied in any week, regard shall be had to all the circumstances of the case, including –
(a) his skills, qualifications and abilities;
(b) his physical or mental limitations;
...”
(Section 7 is the section which defines when someone could be regarded as “actively seeking employment”.)

25. Part IX of the Regulations contains provisions dealing with hardship payments.

26. The effect of section 1(2) of the 1995 Act is that, unless a claimant falls within reg 34 (inapplicable here) and subject to the operation of s9(6) and (7), he cannot be paid jobseeker’s allowance (“JSA”) unless he has a jobseeker’s agreement.

27. Following his claim for JSA, the claimant was presented with a jobseeker’s agreement to sign, which he refused to do. I have indicated above the nature, in broad terms, of his disagreement with it which was set out in writing, in some detail.  The agreement presented to him used the form ES3JP 05/11.  The section headed “My rights” read as follows (emphasis in original):

	“I know if there is any doubt about my benefit claim or disagreement 	about my Jobseeker’s Agreement, my case may be sent to a decision 	maker, which could result in the loss of my Jobseeker’s Allowance.  If 	this happens I will be told.  If I am not satisfied with the decision I can 	ask for it to be explained or reconsidered or I can appeal to an 	independent appeals tribunal.”

28. The “claimant’s right” which is being referred to in reg 31 is a reference to the right under s.9(6) and (7).  The text set out above makes no reference to such a right.  The only rights mentioned in the above paragraph are (a) the right to be told if the case is sent to a decision maker (b) the right to ask for it to be explained or reconsidered and (c) the right of appeal.  The language of the opening sentence is that of an acknowledgment that JSA may be in jeopardy rather than of a right on the part of a claimant to require a referral to be made.  If the paragraph were truly concerned to notify a claimant of his rights under s. 9(6)(b) it would (a) indicate that the decision maker has the power to decide that compliance with the proposed jobseeker’s agreement would be unreasonable and to direct that it be changed and (b) indicate that the right arose prior to the claimant signing it (“I acknowledge that prior to entering into this jobseeker’s agreement I have had the right to refer it to the decision maker to decide…”).  I conclude it was non-compliant with reg 31.  It is nothing to do with contractual terms (as the claimant invites a tribunal, once again, to conclude): see [3] above.

29. It is perhaps a tacit acknowledgment by the DWP of the shortcomings of the 2012 version that the same document in its version of 01/14 contains an additional sentence “I know that if there is a disagreement about my Jobseeker’s Agreement, I can ask for this to be reviewed.”  The claimant has referred additionally to the older form of jobseeker’s agreement in use in 2006, which appears at p25 of file 1409, but this adds little to the matter with which I am concerned as the point for which he relies upon it (the service which jobcentres say they provide to people with disabilities) is not a matter covered by reg 31.  Whether the 2014 version itself is sufficiently compliant with reg 31 is not the issue before me and I express no view upon it.

30. I turn to examining the effect of the non-compliance with reg 31 on the jobseeker’s agreement.  Contrary to what was originally suggested on behalf of the Secretary of State, it does not follow that if a jobseeker’s agreement which was non-compliant with reg 31(g) were implemented it would necessarily not be a jobseeker’s agreement, resulting in a condition for payment of JSA not being fulfilled.  The correct approach is set out in Wade and Forsyth, Administrative Law, 11th Edition, at p184:

	“Sometimes the legislation makes it plain what the effect of non-	observance [of a condition about procedure] is to be.  But more often it 	does not, and then the court must determine the true import of the 	legislation.  Here the court takes account of, among other things, the 	inconvenience of holding the condition ineffective against the 	inconvenience of insisting upon it rigidly.  It is a question of 	construction, to be settled by looking at the whole scheme and purpose 	of the Act and by weighing the importance of the condition, the 	prejudice to private rights, and the claims of the public interest.”

31. I have little doubt that the purpose of reg 31(g) is to ensure that claimants are informed of their right to have a proposed jobseeker’s agreement looked at by someone other than the employment officer.  Both the employment officer and the decision maker are officers of the Secretary of State, but the role of employment officer is a much narrower one, essentially concerned with labour market issues, his role being set out in a few sections of the 1995 Act and in several of the Regulations.  It is clear from the history and structure of s. 9 that the decision maker is intended to be someone other than the employment officer.  The opportunity for referral to a decision maker should allow for more rounded consideration of the case.

32. It would be an extraordinary conclusion that by reason of the DWP’s failure to include the information that ought to have been included to draw attention to claimants’ rights, they were all wrongly paid JSA and I do not reach it.  The Secretary of State was right not to persist with his original argument.

33. Rather, the claimant should have been given the chance to have his reservations about the proposed jobseeker’s agreement considered by the person envisaged by the legislation, namely (the decision maker on behalf of) the Secretary of State.  The claimant appears to be wanting me to rule that the Secretary of State’s decision makers are in someway disqualified from taking such a decision because of the flaw I have found there to be in the form of jobseeker’s agreement.  That is asking the Upper Tribunal to tear up section 9 of the 1995 Act, when, rather, it is the Upper Tribunal’s function to see that it (and relevant provisions of the Regulations) are properly applied.

34. Was the section 9 process implemented at the time?  It is convenient to start with p42 on file 1409, a memo to the decision maker from Steve Shears, whom I infer is a member of staff at the jobcentre.  From that it is clear that there had been an earlier, ineffective, referral to the decision maker on 11 January 2012.  It is clear from the reference in the fifth paragraph on p42 that the main emphasis then had been to the terms of para 21824 (of the DWP’s Decision Makers Guide) which effectively replicates the requirements of s1(2)(b) of the 1995 Act.  It appears from p86 (13 January 2012) that, perhaps as the result of issues raised by the decision maker on the first referral, a doubt had arisen about whether the claimant’s proposed jobseeker’s agreement was reasonable.  However when the matter was re-referred by p42 on 2 February 2012, the issue was exactly the same as it had been the first time:

“The [question] I am sending this up for is [the claimant’s] ability to receive JSA without the need for a signed [jobseeker’s agreement] and I ask that you make the decision on this matter” (penultimate paragraph on p43).

There is not a hint there that there is a distinct adjudication mechanism, via s9(6), for the disputed content of the jobseeker’s agreement to be the subject of a decision by the decision maker or that that was the question which Mr Shears was asking to be decided.

35. To like effect is page 37, written between the first, ineffective, referral to the decision maker and the second one:  again, the issue on which it was intended the case be referred back to the decision making team was the one on which Mr Shears a week later did refer it: “a decision on whether JSA can be paid”.  I infer that it was Mr Shears’ referral on 2 February 2012 which led to the decision under appeal, dated four days later (p1D).  The language of the decision, set out in [2] above, is addressing s.1(2)(b) of the 1995 Act (set out in [18]).

36. There is not a document showing the decision maker’s determination on the referral.  Clearly there must be secondary evidence about what it was, hence the words quoted in [2]. There is certainly no basis for inferring that the decision was under s.9(6) or (7), as the Secretary of State (despite what the claimant says) now accepts: see file 1409, pp1003 and 1006.

37. In his submission, the claimant asserts that there had “in effect” been three separate referrals to a decision maker, the first one from the refusal to sign the jobseeker’s agreement on 6 January 2012, the second on 11 January 2012 and the third on 26 January 2012.  I have consequently gone back to the evidence.  It does not support the claimant’s contention: see in particular file 1409 at pp 37 and 38.  What the claimant appears to be arguing (to a point, against his case) is that there was a decision by a decision maker on the reasonableness of his proposed requests for amendment of the jobseeker’s agreement.  There is no evidence of any such decision within the papers, contrary to what the claimant suggests I have never ruled that there was and the Secretary of State does not submit that there was.

38. There does, therefore, need to be such a decision. The question has arisen as to how such a referral is intended to work and the extent to which, if at all, the respondent is set up to consider disability-related issues on such a reference.  The Decision Maker’s Guide deals with the procedure between paragraphs 21840 and 21888 of Volume 4.  Paragraph 21850 deals with consideration of matters under s.9(6)(a), which is essentially concerned with provisions in a jobseeker’s agreement that are out of accord with other bits of the JSA legislation. Paragraph 21851 addresses s.9(6)(b) but without giving any hint that the implications of a disability are something that might fall to be taken into account.

39. I was referred to the DWP’s Labour Market DMA Procedural Guide. This document in the version in evidence is not unproblematic: para 143, which purports to provide guidance on “Making the decision” appears to me to make no sense and the Secretary of State has been unable to suggest how it does.  It would benefit from being looked at again.  The Labour Market DMA Procedural Guide does however set out a procedure of general application under which both a claimant and the ”adviser” (whom I assume is the “employment officer”) set out their proposals together with a statement of their reasons for disagreement with those proposed by the other.  This process appears capable of being applied in the present case, where both the jobseeker’s agreement proposed by the jobcentre and the claimant’s objections have already been reduced to writing.  Given the claimant’s concerns about the s.9(6) process, it is worth emphasising that in the present proceedings, the Secretary of State has accepted that physical or mental limitations which are material ought to be considered under s. 9(6), pointing out that they should potentially be reflected in the terms of availability for work under reg 13(3) of the Regulations, and in steps to seek work under reg 18(3)(b) and that such matters, if they apply, should be reflected in the jobseeker’s agreement in line with reg 31(c) and (e).

40. I am persuaded therefore that the jobseeker’s agreement wrongfully failed to refer to the correct procedure and that the claimant’s dispute did not receive the consideration provided for by law and thus that the First-tier Tribunal, by failing to spot this, was materially in error of law in relation to the main appeal.

41. Wider questions of the service provided by the DWP to claimants with disabilities are not within the scope of these appeals.  My task is to determine the appeals before me, not a judicial review of provision by the Secretary of State nor an action under the Equality Act, as to neither of which the Upper Tribunal has (in this context) any jurisdiction.

42. When the matter is referred to the decision maker under s. 9(6), it appears appropriate (and I have directed) that the decision maker consider under s.9(7)(c) of the 1995 Act whether, if the claimant’s challenge to the proposed jobseeker’s agreement succeeds, the agreement should be taken as having had effect from the date of claim.  If his challenge succeeded and if that request was agreed to, that would mean he would be eligible for the main rate of JSA rather than the hardship rate of JSA (see below).

43. That however is the only way by which the claimant can now access the main rate of JSA for the period in question.  As noted above, except in the limited circumstances where a person can be treated as having a signed jobseeker’s agreement, unless he actually has one, (main) jobseeker’s allowance cannot be paid.

44. The period in question in these proceedings only runs until the date before the claimant’s successful claim for a subsequent, inconsistent benefit i.e. employment and support allowance, namely 17 December 2012.

45. The Secretary of State concedes that even if the claimant were not to succeed on his reference under s.9(6) and application under s. 9(7)(c), he would be entitled to the hardship allowance between 26 January 2012 and 17 December 2012 and that the tribunal erred in law by failing to rule on the hardship appeal.  The claimant queries why the period only starts from 26 January 2012:  that is because he was paid (main) JSA up to 25 January 2012:  see file 1408, p3.

46. That, while an improvement on his position thus far, will not be a wholly satisfactory position for the claimant, in that the hardship allowance rate was significantly (broadly speaking, 40%) below the “main” jobseeker’s allowance rate.  Had the s. 9(6) mechanism been operating properly, the claimant would have received a decision on the disagreement about the jobseeker's agreement quickly: see s.9(7)(a).  If it had been in his favour and backdated, he would then have received the main rate.  If it had been against him, he would have had the right of appeal and would have had to decide whether meanwhile to sign under protest.  There would not have been such a long time before matters came to a head but that is not something the legislation permits me to do anything about except as I have set out in [42] and neither the claimant nor the Secretary of State have been able to suggest any other basis on which I can.  The jurisdiction of the Upper Tribunal, like that of the First-tier Tribunal, is, of course, defined and limited by statute.

47. The claimant mentions claims for “emergency JSA payment” or “interim JSA payments”.  There were in 2012 no such things distinct from the main JSA rate and hardship payments.  The urgent cases provision in part X of the Regulations was revoked in 2010. Severe hardship payments are only available to persons aged 16-18: 1995 Act, s.16.

48. The claimant mentions unlawful sanctions.  However, he was not sanctioned, but ruled to have been ineligible for JSA because of the lack of a signed jobseeker’s agreement, which is a different issue conceptually (though I appreciate the effect experienced by him may be similar.)  The “Poundland” case cited by the claimant – R(Reilly) v Secretary of State for Work and Pensions [2013] UKSC68; [2014] AC 453 - has no relevance to the present appeal.

49. The claimant will, I feel sure from his submission, feel frustrated that I have not further pursued the question of whether he received a fair hearing from the First-tier Tribunal.  Quite simply, there is no point.  If that hearing were found to have been unfair (as to which I make no comment) all that would happen so far as the appeals to the Upper Tribunal were concerned would be that the First-tier Tribunal’s decisions would be set aside and either a fresh hearing directed before the First-tier Tribunal or a decision substituted by the Upper Tribunal.  Either way, the issues would be those on which I have now ruled and the correct decisions would be those I have given in any event.  An investigation by the Upper Tribunal of issues of alleged lack of fairness would involve substantial extra time and resources, with the only result being at most to put an extra, unnecessary, stage in resolving the substantive issues in the appeals.  It is evident from his submission that the claimant has made a complaint in respect of the conduct of the First-tier Tribunal proceedings.  The Upper Tribunal does not have a generalised role in relation to complaints, which are the responsibility of a Regional Tribunal Judge of the First-tier Tribunal, and only deals with the issues giving rise to them if it is necessary to do so in order to fulfil its responsibilities to determine appeals on a point of law.  In this case it has not been necessary to do so in order to determine them and I therefore make no ruling on the second ground on which the First-tier Tribunal judge gave permission to appeal.

CG Ward
Judge of the Upper Tribunal
1 July 2015