HL/SH/IW/RC/1
THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CJSA/4435/1998

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER H LEVENSON

1.	This appeal by the claimant succeeds.  In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision made by the social security appeal tribunal on 23 February 1998.  I substitute my own decision.  I set aside the termination or ending of the jobseeker’s agreement.  I direct that the jobseeker’s agreement entered into on 2 September 1997 be varied and that the terms on which the claimant and the employment officer are to enter into the agreement are as specified in paragraph 2 below.  I further direct that if the claimant complies with this direction within 21 days from the date that my decision is sent to him, the agreement as varied is to be treated as having effect from 25 November 1997.  If the claimant does not so comply, the agreement entered into on 2 September 1997 is to come to an end.  I refer to the Secretary of State questions relating to entitlement to and payment of benefit on this basis.  In the event of any adverse decision, the claimant will have further rights of appeal.  

2.	The terms referred to in paragraph 1 above are:

	(a)	The claimant will be available for work for at least 40 hours per week between the hours of 8.00 am and 5.00 pm Monday to Friday.

	(b)	He is to be available for work as a computer programmer, book‑keeper, welfare rights or debt adviser, accounts clerk and for general office and administrative work.

	(c)	The claimant is to write to at least one employer each week.

	(d)	The claimant is to contact the Jobcentre at least once each week.

	(e)	The claimant is to apply for at least 2 vacancies each week.

	(f)	The claimant is to continue to search newspapers, magazine and trade papers and register with relevant employment agencies.  

3.	Section 1(2) of the Jobseeker’s Act 1995 sets out a number of conditions which must be satisfied by a claimant in order for him to be entitled to a jobseeker’s allowance.  There are separate conditions relating to being available for employment (section 1(2)(a)) and actively seeking employment (section 1(2)(c)).  This appeal is not concerned with whether those conditions have been satisfied, although actual entitlement to benefit might depend on their satisfaction.  Section 1(2)(b) sets out a further condition, which is that a claimant “has entered into a jobseeker’s agreement which remains in force”.  If no jobseeker’s agreement is in force, the claimant is not entitled to jobseeker’s allowance.  There might be entitlement to an income based jobseeker’s allowance payable to a person in hardship (sometimes referred to as a hardship payment) but such entitlement does not feature in this appeal.  

4.	Section 9 provides that a jobseeker’s agreement is an agreement which is entered into by a claimant and an employment officer which complies with the prescribed requirements in force at the time.  It must be in writing and be signed by both parties.  An employment officer shall not enter into such an agreement unless in the opinion of the officer the requirement to be available for and actively seeking employment would be satisfied by the claimant if he were to comply with, or be treated as complying with, the proposed agreement.  In the present case, the claimant, who was born on 30 November 1950, had claimed unemployment benefit from 19 August 1995 (replaced by jobseeker’s allowance from 9 October 1996).  He entered into a jobseeker’s agreement on 2 September 1997.  Section 10 of the 1995 Act provides for variation of the jobseeker’s agreement.  Any agreement to variation must also be in writing and signed by both parties and an employment officer shall not agree to such variation unless in the opinion of the officer the conditions relating to availability for and actively seeking employment would continue to be satisfied.  If asked to do so by the claimant the employment officer must refer any proposed variation of a jobseeker’s agreement to an adjudication officer, who then determines whether, if the claimant were to comply with the agreement the conditions of being available for and actively seeking employment would be satisfied, and “whether it is reasonable to expect the claimant to have to comply with the agreement as proposed to be varied”.  (Section 10(5)).  The adjudication officer gives such directions as he considers appropriate as to whether the agreement should be varied and, if so, the terms on which the claimant and the employment officer are to enter into an agreement to vary it (section 10(6)).  Section 10(6)(c) provides that the adjudication officer may bring the jobseeker’s agreement to an end where the claimant fails, within a prescribed period, to comply with a direction to enter into an agreement to vary the previous agreement.  The prescribed period is 21 days beginning with the date on which the direction was issued (regulation 38 of the Jobseeker’s Allowance Regulations 1996).  Since the present case arose the law has changed so that the Secretary of State has taken over the role of the adjudication officer.

5.	In the present case, on 25 November 1997, following an interview with the claimant, the employment officer proposed to extend the type of employment that the claimant should consider to include general unskilled work.  The list of work in the original agreement had been similar (although not identical) to the list in (b) of paragraph 2 above.  The claimant did not agree that this was reasonable and the proposed variation was referred to the adjudication officer.  On 1 December 1997 the adjudication officer directed that the agreement should be varied on the terms proposed by the employment officer.  

6.	Section 11 of the 1995 Act has since been repealed but at that time Section 11(1) provided that any determination of or direction given by an adjudication officer under section 9 or 10 could be reviewed by a different adjudication officer on the application of the claimant or of an employment officer.  In this case the claimant asked for a review under section 11(1).  On review, a different adjudication officer confirmed the decision of the previous adjudication officer.  In particular, the claimant was directed to enter into a jobseeker’s agreement which provided for him to “be available for all types of work which are within his capabilities”.  The reviewing adjudication officer had the same powers and was bound by the same rules as the original adjudication officer (see regulation 41 of the Jobseeker’s Allowance Regulations 1996).  The claimant failed to comply with the reviewing adjudication officer’s direction to enter into the jobseeker’s agreement and on 7 January 1998 the adjudication officer terminated the original Agreement of 2 September 1997.  This decision was made prematurely, because the claimant had not been given 21 days within which to comply with the direction.  Accordingly, that decision itself was subsequently reviewed to the effect that the original agreement was terminated from 20 January 1998.  I do not think it is significant in this case whether that final review decision was given under the authority of section 11 of the 1995 Act or section 25 of the Social Security Administration Act 1992.  Section 11(3) of the 1995 Act provided that the claimant could appeal to a social security appeal tribunal against any determination of, or direction given by, an adjudication officer on a review under section 11.  Section 11(4) provided that the tribunal could give a direction of a kind which an adjudication officer could give under section 9(7) in relation to the original jobseeker’s agreement, or section 10(6)(b) in relation to a variation.  Section 14(8)(a) of the Social Security Act 1998 allows the Commissioner, when setting aside a tribunal decision as having been erroneous in law, to give a decision that the tribunal could have given.  Accordingly, in the present case I have power to give any direction which the reviewing adjudication officer could have given. 

7.	On 9 January 1998 the claimant appealed to the social security appeal tribunal against the decision of the reviewing adjudication officer.  The tribunal considered the matter on 23 February 1998 and allowed the appeal to the extent of varying some of the contents of the agreement which the reviewing adjudication officer had directed the claimant to enter into.  However, on the most contentious issue, it confirmed the adjudication officer’s decision that the claimant should be available for any type of work within his capabilities.  On 8 October 1998 the chairman of the tribunal refused the claimant’s application for leave to appeal to the Social Security Commissioner.  However, leave to appeal was granted by Mr Commissioner Sanders on 30 November 1998.  There have been complex submissions in this case and the matter was not referred to me for decision until 24 February 2000.  I then requested a further submission and the final comment from the parties was not received until 25 April 2000.  The adjudication officer recently concerned (and now the Secretary of State) supports the appeal, although the grounds of such support have shifted.  

8.	The first issue of law is whether the appeal to the tribunal against the direction of the reviewing adjudication officer necessarily includes an appeal against a decision to terminate or end the jobseeker’s agreement.  In my opinion, it does.  The termination of the agreement is the consequence of, and sanction for, the claimant failing to comply with a direction to enter into the agreement.  If the tribunal (or Commissioner) subsequently decides that it is not reasonable to expect the claimant to have to comply with the agreement as proposed to be varied (section 10(5)(b)) it would be wrong in principle to allow the sanction to remain in place.  Accordingly, the termination or ending of the agreement is inevitably part of the appeal against the direction to enter into the agreement.  The present case is complicated by the fact that the termination decision was itself reviewed after the appeal had been lodged.  However, the review simply changed the effective date of the termination.  If the original termination should never have taken place, then the subsequent review decision simply abates.  Even if the termination decision is not made until after the appeal has been lodged, it must follow from my reasoning that the appeal nevertheless includes an appeal against the termination decision.  The tribunal gave no consideration to the effect of the termination decision.  That left the period prior to the tribunal’s decision in a kind of limbo and in this respect the tribunal’s decision was made in error of law.  In general terms, paragraph 3 of the submission of 16 June 1999 from the adjudication officer supports this approach.

9.	There is a possibility that if the tribunal (or Commissioner) in any particular case varies the terms of the proposed jobseeker’s agreement, even to a very minor extent, then the effect of my approach will be that the termination of an agreement is set aside and a claimant can postpone any sanction for failure to sign until 21 days after the issue of the tribunal decision.  However, it would be a high risk strategy for a claimant to rely on this outcome.  It seems that it would be much safer for the claimant to sign the agreement and comply with it in the meanwhile, until the outcome of any appeal is known.  Although from the implementation of the relevant provisions of the Social Security Act 1998 the Secretary of State takes decisions formerly taken by the adjudication officer and review has been replaced by procedures known as revision and supersession, the same general analysis applies.

10.	The next issue relates to the terms of the proposed variation in the jobseeker’s agreement. I comment only on the type of work for which the claimant should be available.  In other respects I have adopted the tribunal’s conclusions, with one minor variation which seems to be a consequence of the variations made by the tribunal.  (The tribunal was of the opinion that instead of applying for at least two advertised vacancies from the Jobcentre each week and writing to at least two employers each week, the claimant should apply for any two vacancies each week and write to at least one employer each week.  It seems to me logical then that he should be required to contact the Jobcentre at least once, rather than at least twice each week).  

11.	The dispute related essentially to whether the claimant should be required to be available for manual and factory work.  The employment officer was of the opinion that the original agreement did not offer the claimant the best chance of obtaining a job and that the scope of jobs for which he was searching should be extended to include general unskilled work.  The claimant relies on regulations 8 and 10 of the Jobseeker’s Allowance Regulations 1996.  So far as is relevant, regulation 8 provides that any person may restrict his availability for employment by placing restrictions on the nature of the employment for which he is available “providing he can show that he has reasonable prospects of securing employment notwithstanding those restrictions” (my underlining).  

12.	Regulation 10(1), so far as is relevant, provides that:

		10.-(1)	For the purposes of regulations ... ... in deciding whether a person has reasonable prospects of securing employment, regard shall be had, in particular, to the following matters -

					(a)	his skills, qualifications and experience; 

					(b)	the type and number of vacancies within daily travelling distance from his home;

					(c)	the length of time for which he has been unemployed; 

					(d)	the job applications which he has made and their outcome;

					(e)	if he wishes to place restrictions on the nature of the employment for which he is available, whether he is willing to move home to take up employment.

13.	Regulation 10(2) provides that it shall be for the claimant to show that he has reasonable prospects of securing  employment if he wishes to restrict his availability [in accordance with regulation 8].

14.	The claimant referred to his previous work experience and evidence that “there is an adequate supply of vacancies” for the type of job for which he was searching.  Details of both of these matters are given at length in the file, I do not understand them to be in dispute and it is not necessary for me to reproduce the details in my decision.  The claimant told the tribunal that he had never done a labouring or factory job but the tribunal did not accept that he would be unable to do such a job.  The tribunal was, of course, entitled to take this view although I am not sure that I am of the same opinion, given that the claimant was at the time 47 years old and had never done manual work.  However, the error made by the tribunal in this context was in its statement that the tribunal agreed that the claimant “has not shown that he has a good prospect of securing employment by continuing to restrict his search for work to certain fields of employment” (my underlining).  Regulation 8 and regulation 10(2) both use the phrase “reasonable prospects”.  I agree with the claimant (supported in paragraph 14 of the submission of 15 January 1999 from the adjudication officer) that the tribunal has applied the wrong test.  In the words of the adjudication officer “the tribunal ... imposed a burden of proof on the claimant which is higher than that set out in the regulation”.  In the same submission the adjudication officer expressed the view that the claimant’s prospects were in fact reasonable in the light of his proposals.  In a later submission of 16 June 1999 a different adjudication officer disagrees with the position taken by his colleague.  He refers to regulation 31(e) of the 1996 Regulations.  This provides that the jobseeker’s agreement must contain information about the action which the claimant will take “to improve his prospects of finding employment”.  That provision sits uneasily with the wording of regulation 8.  It seems that regulation 31(e) imposes a very general requirement.  This must be subject to the right in regulation 8 of the claimant to place restrictions (otherwise regulation 8 would have no meaning) providing the claimant can show that he has reasonable prospects of securing employment notwithstanding those restrictions.  I find support for this approach from the fact that regulation 31(c) specifies that the agreement shall include any restrictions on the claimant’s availability.

15.	On the facts of the present case, having regard to the claimant’s age and experience, the types of employment set out in (b) of paragraph 2 above seem to be appropriate.  It is reasonable to expect the claimant to have to comply with the agreement as I have proposed to be varied, but it would not be reasonable to expect the complainant to have to comply with the agreement as originally proposed by the employment officer to be varied.  The claimant has placed restrictions on the nature of the employment for which he is available but he has shown that he has reasonable prospects of securing employment notwithstanding those restrictions.  The other terms of the proposed agreement deal with the action which the claimant must take to improve his prospects of finding employment (as compared with his prospects if he does not take such actions).  I acknowledge that the claimant did not find work of the kind he was seeking, but there was plenty of such work for which he was a suitable candidate and his failure to obtain work did not derive from his restrictions on the type of work he was seeking.

16.	Section 10(6)(d) provides that the reviewing adjudication officer (and by extension the tribunal or the Commissioner) may direct that if the jobseeker’s agreement is varied and such conditions as he considers appropriate are satisfied, the agreement as varied is to be treated as having effect on such dates, before it would otherwise have effect, as may be specified in the direction.  Section 10(7)(a) provides for regulations to prescribe the matters to be taken into account in giving such a direction.  There seems to be no specific regulation, but regulation 32 of the 1996 Regulations lists some of the matters to be taken into account in giving a similar direction under the provisions of section 9(7)(c).  This includes whether the claimant was reasonable in refusing to accept the agreement proposed by the employment officer (and in my view he was reasonable in so doing) and whether the claimant has signified that he is prepared to accept terms of an agreement which are reasonable (and in my view the evidence shows that the claimant was all along prepared to accept the wide field of employment corresponding with my indication in (b) of paragraph 2 above).  I have taken account of these matters in formulating my decision.  

					(Signed)	H Levenson
							Commissioner

					(Date)	12 June 2000