IN THE UPPER TRIBUNAL	Case No.  CJSA/2655/2012
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is dismissed.

REASONS FOR DECISION

1.	This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 25 April 2012 to the effect that the claimant’s appeal to that tribunal, lodged on 1 April 2011, against either a decision made by the Secretary of State on 7 December 2010 (as revised on 23 February 2011) or a consequential decision, possibly made on 9 December 2010), or both, had lapsed.  The appeal was at one time supported by the Secretary of State, who submitted that the appeal to the First-tier Tribunal had not lapsed.  However, he now considers that the appeal to the First-tier Tribunal had lapsed but he also accepts that the claimant was entitled to benefit during the substantial period in dispute.  Accordingly, he has arranged for the claimant to be paid the arrears due to him.  The claimant has therefore achieved practical success even though I accept the Secretary of State’s later submission that this appeal should formally be dismissed. 

2.	The history of this case is not straightforward and the reason that it has reached this level is that decisions have not always been made in appropriate terms and, on the Secretary of State’s current analysis, the vital error was an administrative failure to pay benefit that had been awarded which, of course, was not shown in those documents that dealt with entitlement.

3.	The claimant was in receipt of jobseeker’s allowance from 5 September 2009 until late 2010.  On 7 December 2010, the Secretary of State decided that the claimant “had not, and cannot be treated as having, entered into a Jobseeker’s Agreement which remained in force from 13/11/2010”. That decision was revised on 23 February 2011 to substitute 26 November 2010 as the correct date.  Meanwhile, possibly on 9 December 2010, the Secretary of State had apparently decided that the claimant was not entitled to jobseeker’s allowance.   A decision of 19 May 2011, which I am now told was a reconsideration that did not lead to a revision, refers to a decision of 29 November 2010 that was also revised on 23 February 2010 and it appears that matters were sufficiently confused at the time for the claimant to have brought judicial review proceedings on 17 December 2010.  Those proceedings were withdrawn upon an understanding that the Department would treat the claimant as having appealed against a relevant decision so that the merits of the case could be considered by the First-tier Tribunal.

4.	The Secretary of State’s response to this deemed appeal stated that the decision being challenged by the claimant was a decision dated 9 December 2010 to the effect that the claimant was not entitled to jobseeker’s allowance from 27 July 2009 (which appears to have been a date on which he had made an earlier claim).  However, as recorded above, the decision made on 7 December (although notified on 9 December) was concerned with the question whether a jobseeker’s agreement was in force from 13 November 2010 or, after revision on 23 November 2010, from 26 November 2010 and the decision that was possibly made on 9 December 2010 appears to have awarded jobseeker’s allowance to 26 November 2010 but not thereafter.  In any event, by this time the claimant had in fact been paid jobseeker’s allowance up to 26 November 2010.  His complaint was that he had not been paid anything since then.

5.	The appeal proceedings were adjourned on 2 March 2012, because there was no-one from what appeared to be the relevant Departmental team (the “labour market” team, as opposed to the “JSA” team) to explain the Secretary of State’s case.  The case was certainly not clear from the documents.  On 30 March 2012, the Secretary of State again revised the decision of 7 December 2012 and this time decided that the claimant “was not disentitled or sanctioned”, thus apparently also revising the entitlement decision that had possibly been made on 9 December 2010.   Despite the terms of that decision, it did not lead to any payment of benefit.

6.	Having been informed of the decision of 30 March 2012, the First-tier Tribunal unsurprisingly ruled on 25 April 2012 that the appeal before it had lapsed.  However, because he had not been paid anything in consequence of the decision, the claimant objected to the ruling.  The judge reconsidered it on 9 May 2012 but did not alter it, correctly stating that the First-tier Tribunal had no power to order payment.  The claimant subsequently applied for the setting aside of the decision of 9 May 2012, which was quite properly refused, and he then applied for permission to appeal, upon which application no action was taken.  Having been told that no further action would be taken by the First-tier Tribunal, the claimant applied to the Upper Tribunal for permission to appeal against the decision of 9 May 2012 or, inferentially, the decision of 25 April 2012.

7.	A ruling that an appeal has lapsed is in principle appealable (see LS v LB Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27).  I agree with the Secretary of State that the First-tier Tribunal has no power to decide whether or not an appeal should lapse, because lapsing occurs automatically by virtue of, in this case, section 9(6) of the Social Security Act 1998.  However, if there is a dispute as to whether an appeal has, by operation of law, lapsed, the First-tier Tribunal must rule on the issue and such a ruling is appealable.

8.	Rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) requires that, before applying to the Upper Tribunal for permission to appeal, an applicant must have made an application to the First-tier Tribunal, which must have been refused or not admitted.  However, the First-tier Tribunal’s computer system appears not to have been programmed to deal with applications for permission to appeal against procedural decisions and the claimant cannot be blamed for not having secured an appropriate ruling from the First-tier Tribunal.  In these circumstances, the Upper Tribunal usually waives the irregularity arising from the lack of compliance with the requirement imposed by rule 21(2).  Such a waiver is implicitly permitted by rule 7(1), which provides –

“An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or direction, does not of itself render void the proceedings or any step taken in the proceedings.”

(Rule 7(2)(a) does not apply because it is the First-tier Tribunal’s failure rather than the claimant’s that has caused the non-compliance and, in any event, it is arguable that rule 7(2) does not confer powers but merely describes powers to be found elsewhere.) 

9.	I waived the irregularity in this case, and granted permission to appeal, because the claimant said he still had not been paid jobseeker’s allowance for a period of just over six months from 27 November 2010 which raised a question as to whether there really had been a relevant revision.  I also said –

“6.	Moreover, a similar, but not identical, case appears now to be the subject of an application for permission to apply for judicial review that is currently before the Administrative Court (CO/2436/2012), arising out of a decision made by the Secretary of State a year after the decision that has given rise to the present case.  On 20 December 2011, the Secretary of State decided to impose a “sanction” for the period from 24 December 2011 to 13 April 2012 and on 22 December 2011 the claimant was informed that jobseeker’s allowance was not payable from 24 December 2011.  The claimant appealed and, on 5 October 2012, his appeal was allowed and the First-tier Tribunal has said in terms that there were “no grounds for superseding the decision awarding [the claimant’s] jobseeker’s allowance” and that the claimant “continued to be entitled to JSA for the period 24/12/2011 to 13/04/2012”.  In a letter to the Administrative Court dated 3 December 2012, the Litigation Division of the Department for Work and Pensions appears to submit that, notwithstanding the decision of the First-tier Tribunal, the claimant is not entitled to jobseeker’s allowance in respect of the period from 24 December 2011 to 13 April 2012 because the claimant “did not have a Jobseeker’s Allowance claim during that period”.  I do not have all the documents relating to the proceedings before the Administrative Court and, in particular, have not seen the acknowledgement of service, but the proceedings seem to raise issues that are similar to those raised in the present case.  If permission to apply for judicial review is not refused, those proceedings could be transferred to the Upper Tribunal if the Administrative Court thought that appropriate.

7.	If the Secretary of State had indeed revised in the claimant’s favour the decision being challenged in the present case, the First-tier Tribunal was clearly correct to find the appeal to have lapsed, for the reasons set out in paragraph 3 of the judge’s decision dated 9 May 2012.  However, if the Secretary of State has refused to pay the claimant the money due if the decision was as the First-tier Tribunal was told it was, there is raised the question whether the decision as revised really was “more advantageous to the appellant” for the purposes of regulation 30 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) than the original decision being challenged.  Notwithstanding regulation 30(2)(b) (which, I note, does not refer to the Jobseekers Act 1995), I have some doubt that appeals should lapse when the Secretary of State merely wishes to substitute one ground of disallowance for another that is of a similar type.  The lapsing of appeals is supposed to simplify matters; not complicate them.

8.	On the documents before me, the claimant appears to have an arguable case.  If the Secretary of State misled the First-tier Tribunal as [to] what he had actually decided, the decision it made may be wrong in law, notwithstanding that the First-tier Tribunal was not at fault.  It may be that the Secretary of State can show that the money due under the revised decision was in fact paid to the claimant or that there is some other explanation for what has happened of which I am unaware and that the information provided to the First-tier Tribunal was merely incomplete but not materially inaccurate.  However, I am satisfied that permission to appeal should be given.”
	
10.	The Secretary of State agreed that merely substituting one ground for disallowance for another should not cause an appeal to lapse and submitted that the case should be remitted to the First-tier Tribunal with a view to it determining the case as an appeal against a supersession and disallowance of jobseeker’s allowance.  However, the claimant did not accept that submission and sought an oral hearing before the Upper Tribunal.  

11.	The difficulty with the Secretary of State’s submission was that there was no clear evidence of a supersession decision in the documents before me.  A refusal to agree to a variation of a jobseeker’s agreement does not without any further decision mean there is no entitlement to jobseeker’s allowance.  However, it may lead to a decision by the Secretary of State to bring a jobseeker’s agreement to an end under section 10(6)(c) of the Jobseeker’s Act 1995, which would lead to a further decision of the Secretary of State under section 10 of the Social Security Act 1998 superseding the award of jobseeker’s allowance and bringing the award to an end on the ground that the condition of entitlement imposed by section 1(2)(b) of the 1995 Act – that the claimant “has entered a jobseeker’s agreement, which remains in force” – was no longer satisfied.  Accordingly, I issued a further direction, pointing out that the evidence suggested that no decision had been made under section 10(6)(c) and stating –
 
“7.	So, the Upper Tribunal needs to know whether the original award of jobseeker’s allowance was superseded or revised in 2010, in which case the appeal to the First-tier Tribunal was presumably against that supersession or the award as revised as well as against any decision relating to the jobseeker’s agreement made under sections 9 or 10 of the 1995 Act.  It also needs to know whether any decision under section 10(6)(c) of the 1995 Act was made in 2012 so as to have effect from 26 November 2010 (which, I think, would have required evidence that there had been an appropriate direction made under section 10(6)(b)(ii) on or before 5 November 2010) and also whether any decision as to entitlement to jobseeker’s allowance from 26 November 2010 was made by way of revision or supersession in 2012.  If there were such decisions, the claimant should have been notified of them.

8.	In the light of that information, it will become clear whether there is a live issue to be determined in this appeal or in some other appeal (or, if uncontroversial, by way of a revision) or whether there has been some administrative error leading to a failure to make payments to which the claimant is entitled on the basis of existing decisions.

9.	The Upper Tribunal has no more formal power than the First-tier Tribunal to order the Secretary of State to make payments: like the First-tier Tribunal it makes decisions as to entitlement or payability which is not quite the same thing.  However, I have no doubt that if it becomes apparent in the course of proceedings before either tribunal that payments due to the claimant have not been made as a result of an administrative error, the Secretary of State will rectify the problem.”

12.	The Secretary of State’s current position is that there was a decision in December 2010 awarding jobseeker’s allowance up to 26 November 2010 but disallowing it thereafter and that that decision was revised on 30 March 2012 so that entitlement to jobseeker’s allowance continued from 27 November 2010.  He says that jobseeker’s allowance was withheld from 27 November 2010 to 23 June 2011 on the ground that there was no evidence that the claimant had attended the Jobcentre during that period.  However, he submits that it was wrongly withheld, both because there was no further supersession or revision decision justifying the non-payment following the decision of 30 March 2012 and because the claimant was not obliged to attend the Jobcentre once he had been told that he was not entitled to jobseeker’s allowance.  It is for that reason that he has arranged for payment of benefit to the claimant in respect of the period from 27 November 2010 to 23 June 2011.  The claimant is naturally content with that outcome.

13.	As regards the obligation to attend the Jobcentre, the Secretary of State refers to my decision in CJSA/1080/2002, in which I held that a requirement to attend a Jobcentre lapses when a claimant is informed that he or she is not entitled to jobseeker’s allowance.  At paragraph 15 of that decision, I said –

“Attendance is required to enable a claimant to prove continued entitlement to jobseeker’s allowance.  It is, as the claimant pointed out, unnecessary to sign on for jobseeker’s allowance purposes if there is no entitlement to jobseeker’s allowance. Furthermore, the consequence of a failure to attend and sign a declaration as required is that entitlement ceases under regulation 25 of the 1996 Regulations.  If it has already been decided that the claimant has no entitlement, there is plainly no entitlement that can cease.”

As the Secretary of State says in his submission in the present case, “it was clearly nonsensical … to penalise [the claimant] for having failed to sign during the period of his wrongful disallowance”.  This would seem equally applicable to the decision that led to the claimant’s 2012 application for judicial review (see paragraph 9 above).

14.	I am content to accept the Secretary of State’s analysis of the facts of this case.  However, it is possible that his earlier analysis may have been correct.  It appears that “labour market” decisions as to whether there is a jobseeker’s agreement in force are dealt with entirely separately from other decisions related to entitlement to jobseeker’s allowance.  In the present case, the former seem to have been dealt with in Glasgow and the latter in London.  I am still not entirely sure whether the “labour market” decision-makers make consequential entitlement decisions or not.  There is no mention of entitlement in the decision that was issued on 7 December 2010 and I have not seen any copy of a consequential decision (which I have said was possibly made on 9 December 2010).  On the other hand, the use of the words “not disentitled” in the decision of 30 March 2012 made in Glasgow suggests that they may make entitlement decisions.  That is consistent with the Secretary of State’s submission that, if the London office wished to decide that the claimant was not entitled to jobseeker’s allowance on some other ground, it needed to make a further revision decision (if there were grounds) or supersession decision (which might not have been possible retrospectively).  If, on the other hand, all entitlement decisions should be left to the London office, the decision of 30 March 2012 should be read as merely suggesting that the claimant ought not to be disentitled on the ground that there was no jobseeker’s agreement in force.  In those circumstances, the London decision-makers might have thought there was no need to issue a decision if they wished to maintain the existing disallowance on a different ground.  However, it seems to me that, if the Secretary of State wishes to maintain a decision by substituting a new ground for the original ground because the original ground has ceased to be valid, he ought to make and issue a decision in terms of supersession (or, in some circumstances, revision) so that the claimant knows what has been decided and may appeal.  Thus on either analysis of the facts of this case, a decision disallowing jobseeker’s allowance on the ground that the claimant had not attended the Jobcentre should have been issued in March 2012 and, insofar as it was an appeal against an entitlement decision, the appeal before the First-tier Tribunal would clearly not have lapsed.  

15.	Wherever the responsibility for making entitlement decisions lies when the decision is made in consequence of a decision relating to a jobseeker’s agreement, it seems to me to be important for decision-makers, submission-writers and the First-tier Tribunal all to bear in mind that there are two separate appealable decisions.  Decisions should be issued in terms of entitlement as well as decisions in terms of whether a jobseeker’s agreement is in force.  Furthermore, although decisions in relation to jobseeker’s agreements are in themselves appealable by virtue of paragraph 8 of Schedule 2 to the Social Security Act 1998, there may be some virtue in treating a claimant as having appealed against both such a decision and the consequential entitlement decision, particularly as it is not immediately obvious to me what power there is to revise an entitlement decision following a successful appeal in respect of a jobseeker’s agreement.  That might require some co-ordination between those who currently write submissions for “labour market” cases and those who write submissions in relation to entitlement decisions, which might be a good thing.  This case and the claimant’s 2012 judicial review both show that a labour market decision may not necessarily be determinative of entitlement.

16.	In any event, in the present case, the claimant has now been paid the benefit he sought.  On the Secretary of State’s analysis of the facts of the case, the First-tier Tribunal was correct to find that the appeal before it had lapsed.  The non-payment was due to administrative action unsupported by a proper decision.  I dismiss this appeal on that basis.

Mark Rowland
5 February 2014