PLH                                                                         Commissioner's File:  CJSA  2414/01

JOBSEEKERS ALLOWANCE ACT 1995
SOCIAL SECURITY ACT 1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Jobseekers Allowance
Tribunal:	Newtown 
Tribunal case ref:	U/03/199/2000/00098
Tribunal date:	21 September 2000
Reasons issued:	27 April 2001

[ORAL HEARING]
1.	This appeal by the claimant is dismissed, as in my judgment there was no material error of law in the decision of the tribunal chairman sitting alone at Newtown on 2 August and 21 September 2000, when she determined a total of eight separate appeals brought by the claimant relating to certain conditions of entitlement to the jobseekers allowance he was trying to obtain.  This appeal to me is concerned only with the decision given on one of those appeals, which was by the claimant against the decision of an adjudication officer given on review on 25 February 1997, confirming some directions originally given on 11 November 1996 as to the terms of a jobseeker’s agreement it was reasonable for the claimant to be required to enter into in order to meet the “agreement” condition in section 1(2)(b) Jobseekers Act 1995 for entitlement to the allowance over the period from 11 October 1996 to 20 February 1997, the period to which the claim or claims under consideration on that question related.  
2.	The decision of the tribunal chairman on that appeal (tribunal appeal reference   U/03/199/2000/00098) was set out in the decision notice issued to the claimant on 7 November 2000, at page 117 of the appeal file before me.  It allowed the appeal to the extent of modifying the stipulated terms of the jobseeker’s agreement it would be reasonable to require him to enter into so as to meet the condition in section 1(2)(b), and directed that upon an agreement in the modified terms being signed by both parties it should take effect so as to satisfy the condition in section 1(2)(b) retrospectively from 11 October 1996 until the end of the claim period concerned.  
3.	The reasons for that decision were given later in a detailed statement of reasons covering the decisions on all eight appeals, issued to the claimant on 27 April 2001 at pages 118 to 126.  The other seven appeals related to successive adverse decisions of adjudication officers that the claimant had not met the separate condition in section 1(2)(c) of “actively seeking employment” during the successive fortnightly or shorter periods over the total period from 11 October 1996 to 9 January 1997 inclusive for which the claimant had been repeatedly trying to obtain the benefit.  Each of the seven appeals on that issue was allowed and determined in favour of the claimant by the tribunal chairman, who held on the facts that throughout the successive periods in issue up to and including 9 January 1997 he had been actively seeking work.  
4.	The present appeal to me does not relate to the chairman’s decision on any of those other seven appeals, or to any other relevant condition of entitlement to the jobseeker’s allowance the claimant was seeking to obtain from 11 October 1996 onwards.  It is only concerned with the question of the agreement he should be required to enter into so as to be treated as having met the section 1(2)(b) agreement condition retrospectively from that date and throughout the remainder of the period while the claims under consideration in all eight appeals were to be treated as subsisting.  That was confirmed by the tribunal’s statement of reasons paragraph 44 as the period up to and including 20 February 1997, even though the periods for which he was found to have met the separate condition of actively seeking employment in the other seven appeals ended on 9 January 1997; apparently that was the last day covered by his most recent attendance at the employment office to sign on as available for work, recorded in the chairman’s note of evidence on page 117d as having been on 20 December 1996. I do not know what happened about signing on or the actively seeking work condition for the further period down to 20 February but for present purposes that does not matter.
5.	As explained in paragraph 52 of the tribunal’s statement of reasons, the practical effect of its decision on the eight appeals before it was that if the claimant now entered into a jobseeker’s agreement in the terms directed by the tribunal, each of the conditions in section 1(2)(a) to (c) inclusive of the 1995 Act would be treated as having been met for the period 11 October 1996 to 9 January 1997 inclusive; and he would accordingly be entitled to the allowance at any rate for that period.  
6.	However the claimant never entered into an agreement in accordance with the tribunal’s directions.  Instead he disputed that aspect of the decision, sought to have it set aside by the tribunal and has pursued this appeal against it.
7.	I held an oral hearing of the appeal which had been directed by another Commissioner on the claimant’s application.  The claimant appeared and conducted his case in person and the Secretary of State was represented by Mr Vaughan Lewis of the solicitor’s office, Department for Work and Pensions.  Apart from one early intervention to clarify the Secretary of State’s position during the course of the claimant’s argument, I did not find it necessary to call on Mr Lewis for any oral argument to supplement the written submissions on behalf of the Secretary of State already in the appeal papers, of which the claimant was of course well aware.  
8.	The claimant is a man now aged 55, unemployed since 20 January 1996, who has been conducting a long war of attrition with the authorities over what, if any, practical efforts at obtaining normal paid employment he should make as a condition of getting the means‑tested public assistance he has been obtaining or seeking to obtain ever since that date.  That assistance for a person in his position was in the form of income support down to 10 October 1996, and income-based jobseeker’s allowance for the weeks from 11 October 1996 onwards.  This appeal concerns only the jobseeker’s allowance he was trying to get from the latter date.   
9.	The tribunal found the claimant was highly-educated but had had a somewhat unsettled work life, with minimal actual work experience; a person of fixed views and an unusual personality, unprepared to compromise with the employment service over a strategy to obtain employment.  It is apparent that the tactics in his war include the bringing of multiple appeals; the generation of much correspondence, contention and complaint at each level of the system he encounters; and an extreme unwillingness to get caught assenting or even responding directly to what is put to him by anyone.  While possibly mere caution in case of giving something away, applied at the appeal hearing before me even to such questions as “Are you asking for an adjournment?” it gave the impression of a man for whom the discussion and dispute was the thing: any form of resolution secondary, and not particularly welcome even if it might be in his favour.
10.	The tribunal decision against which the claimant has pursued this appeal was in fact very substantially in his favour.  It was given after a rehearing, which occupied the tribunal for two days, of his eight appeals originally launched in early 1997 against successive refusals of jobseeker’s allowance for the period 11 October 1996 to 9 January 1997.  These had already been the subject of one or more previous tribunal decisions that had to be set aside on appeal for procedural reasons.  As already noted, his seven appeals on the question of whether he was to be treated as meeting the condition of actively seeking work over this period were determined entirely in his favour, and I am only concerned with the remaining appeal on the agreement condition, which the tribunal found concerned the whole of the period from 11 October 1996 not only to 9 January to which the appeals on the other point related, but also to 20 February 1997.
11.	The appeal on that condition was brought to the tribunal under section 11(3) Jobseekers Act 1995 against the decision of an adjudication officer given on 25 February 1997. That decision had confirmed on review the earlier decision of a different adjudication officer on 11 November 1996 to give directions on a reference under section 9(7) as to the terms of the jobseeker’s agreement it was appropriate and reasonable for the claimant to enter into and comply with so as to meet the condition in section 1(2)(b) of having entered into such an agreement for the purposes of continuing entitlement from 11 October 1996 onwards.  
12.	The requirement of entering into an agreement for the purposes of jobseekers’ allowance was a new one, not previously imposed on unemployed income support claimants. Under transitional provisions in the Jobseekers Allowance (Transitional Provisions) Regulations 1996 SI No. 2567 this claimant was treated, along with others continuing to claim and draw income support at the date of the changeover, as having an automatic award of jobseeker’s allowance without having to make a separate claim for it from that date, subject to the conditions of entitlement to the new allowance being satisfied.  By transitional regulation 8(2) the new condition of a jobseeker’s agreement under section 1(2)(b) was treated as satisfied while that transitional award otherwise remained in force, until the date of the directions given by the adjudication officer on any reference under section 9(7) as to what actual agreement should be entered into. Such directions were, as already noted, given in this claimant’s case on 11 November 1996.  Consequently from that point on, the only way the condition in section 1(2)(b) could be satisfied was by complying with the adjudication officer’s directions, or any directions substituted under section 11(4) by the tribunal on the appeal.  
13.	It is beyond dispute that the claimant never complied with the directions either of the adjudication officer or of the tribunal as regards the period at issue, and so from 11 November 1996 onwards has not actually met the condition of entitlement under section 1(2)(b), of having entered into an agreement of the prescribed type. 
14.	The decision of the tribunal, clearly set out in the decision notice as issued to the claimant at page 117, was to give the claimant a practical and generous opportunity of being treated retrospectively as having met that condition over the entire period from 11 October 1996 to 20 February 1997, if he now entered into such an agreement in the terms the tribunal directed should be tendered to him. As the tribunal clearly recognised, the actual conclusion of such an agreement for a past period when the “actively seeking work” question had already been answered in his favour would be more of a formality than anything else, albeit a necessary one to comply with the legislation. The terms the tribunal directed should be included in the agreement were substantially more favourable to the claimant than those originally directed by the adjudication officer. They were based on a jobseeker’s agreement actually concluded between the claimant and the employment service for a later claim period on 28 May 1998.  The claimant told me these terms had been largely dictated by himself, and he had no objection to them in substance.  Their adoption by the tribunal was plainly intended as a pragmatic and easy solution to end the wrangle over an agreement for the earlier period now long in the past. Coupled with the decisions on the other seven appeals, this in effect handed him the jobseekers allowance in dispute for the period 11 October 1996 to 9 January 1997.
15.	The claimant was not appeased.  He sought to have the decision set aside, and demanded a statement of detailed reasons with a view to challenging it further.  When the employment service tendered him an agreement for signature in the terms the tribunal had directed in its decision notice on page 117, he refused to sign it.  His grounds were that he was then still waiting for the detailed statement of reasons for the decision, and the agreement did not contain a further term enabling him to insist on its provisions being submitted to yet another adjudication officer for variation or review, with in due course a further appeal to a tribunal, so that he could go round the whole process again.  Then when it was determined there were no grounds for setting aside the decision and he was sent the tribunal’s statement of detailed reasons on 27 April 2001, he brought this appeal.  In his notice of appeal dated 14 May 2001 at page 151 he alleged among other things that the tribunal had failed to focus on the relevant issues, and had erred by requiring him to sign an agreement with which it was impossible to comply because it related to steps he should have been taking to obtain employment back in 1996.  He included further complaints, of maladministration and other matters.  
16.	Leave to pursue the appeal was granted by the chairman on 8 June 2001.  Since that time the appeal file has grown to well over 300 pages, as a result of the various written submissions and interlocutory and other directions that have been made.  Finally it was directed to be set down for oral hearing, and came before me: more than two and a half years after the tribunal (itself a rehearing, of appeals originally launched in 1996 and 1997) and over six years after the actual events to which the case related.  
17.	The claimant opened his remarks at the oral hearing by presenting (among other fresh documents he produced) a written application for an indefinite adjournment of the appeal.  He said he had recently been given to understand that the decision of the tribunal was not what he had previously taken it to be, and there was now confusion over whether he had ever made a claim for jobseeker’s allowance from 11 October 1996, which required investigation.  In particular, he wished to consult solicitors experienced in public law over whether he could bring proceedings for maladministration.  I was left unpersuaded that these concerns could be relevant to anything I had to decide, and as the claimant proceeded with his observations on the appeal I was unable to discern any real ground for postponing it yet further.  After some 45 minutes, I stated for clarity that I was not going to do so: an exercise of discretion that I now confirm, the claimant having had ample opportunity to prepare and take advice on all relevant issues ever since his notice of appeal of 14 May 2001, now just under two years ago.
18.	Reverting to his point that there was confusion over the question of a claim for jobseeker’s allowance he was sure he had never made on 11 October 1996, the claimant said there was something seriously wrong with the tribunal’s decision in that it referred to the terms of the jobseeker’s agreement to take effect “until the end of the claim”.  This did not make clear what the tribunal meant, nor did it comply with the directions earlier given by the Commissioner setting aside the previous tribunal decision and remitting the case for the rehearing (CJSA 2154/98) that the relevant questions of entitlement for the period were to be dealt with.  A claim could never end if it had never existed.  
19.	I reject that argument as a mere quibble. There was and can be no doubt whatever that the claimant was seeking to get jobseeker’s allowance on a continuing basis, and had been accepted by the department as a claimant, for the period from 11 October 1996 to 20 February 1997 as recorded by the tribunal.  It is quite clear that the tribunal’s decision related, and was referring, to the terms of the jobseeker’s agreement to apply as regards that period so as to meet that particular condition of entitlement to the allowance.  The need to determine this for that period arose in part from the transitional provisions above referred to and the fact of his previous income support claim, and in part from his being accepted as having made further continuing claims for jobseeker’s allowance itself between 11 October 1996 and 20 February 1997, for example by continuing to sign on. The tribunal had been specifically directed by the Commissioner when remitting the case for the rehearing that it was concerned only with the specific periods to which the claims in the eight appeals remitted applied, which so far as this question was concerned had been confirmed to the Commissioner by the Secretary of State as ending on 20 February 1997: (page 54 of the present appeal file, and paragraph 15 of the decision in CJSA 2154/98, page 94). The tribunal on the rehearing recorded as a fact (paragraph 44 on page 125) that the relevant claim in relation to the terms of the agreement had ended on 20 February 1997; a finding with which I was shown no reason whatever to interfere. I therefore reject the claimant’s submission that the decision should be set aside because it did not go into the question of whether a claim existed.  The issue it correctly addressed concerned the content of the jobseeker’s agreement to apply for the relevant claim period thus identified. 
20.	Next the claimant said the decision was also wrong because it had directed the terms of the agreement to be submitted to him for signature within 28 days.  The tribunal had no jurisdiction to set time limits, and anyway the direction had not been implemented, because he himself applied to set aside the decision and required a statement of reasons to be given, which held matters up. (In the event, the document containing the provisions directed was tendered to the claimant only on 29 March 2001). In my judgment however the tribunal on an appeal under section 11(3) of the 1995 Act clearly have power under section 11(4) to give consequential directions of this nature for the implementation of their decision on the terms of an agreement, and the conditions under which any such terms are to be given retrospective effect.  I was unable to see that it could be any ground in law to invalidate the decision itself that one of the consequential directions given for implementing it had not been complied with in the time originally directed, especially when the claimant’s own actions had contributed to the delay. The tribunal itself confirmed in the statement of reasons issued on 27 April 2001 that compliance with the original time limit was not crucial to the substance of the decision, by extending it for a further short period.  Neither the delay nor the extension stopped the claimant signing the agreement when tendered to him, or invalidated the decision that he should if the agreement condition was to be treated as met.
21.	Then the claimant said it was a ground for invalidating the tribunal’s decision, and justification for his having refused to sign the agreement when tendered to him, that it did not contain any provision entitling him to take further issue with its terms; for example by seeking a variation of them under section 10 with the possibility of then applying for a review and bringing a further appeal to a tribunal if or when he and the employment office failed to agree on whatever fresh points he might raise.  Although he regarded the terms themselves set out in the tribunal’s decision at page 117 as acceptable, the lack of any opportunity to require a variation or take issue with them subsequently was a principal reason why he had refused to sign.  In my judgment that was not a proper ground of objection to the terms directed by the tribunal, which related of course entirely to a period now long in the past.  This was the final decision under the appeal process, to determine what should have been in the agreement as regards that past period.  Any question of applying to have that reviewed, varied or reconsidered on appeal yet again was of course quite inappropriate, and it was no arguable error either by the tribunal not to have directed such a thing, or by those who drew up the agreement itself not to have put it in.
22.	Next the claimant said the tribunal’s directions as to the content of the agreement were objectionable, because to comply with the prescribed requirements in regulation 31 Jobseekers Allowance Regulations 1996 SI No. 207 an agreement had to specify “the action which the claimant will take” and this was a logical impossibility for an agreement to take retrospective effect only for a closed period in the past.  It would have been disingenuous for him to sign such a thing and he should not have been required to do so.  Whatever the position in strict logic I was not persuaded that this amounted to an argument for setting aside the tribunal’s decision in law.  As the tribunal itself recognised, its directions did involve some element of artificiality because the matter had dragged on for so many years: but the decision that if the claimant now signed an agreement in the terms directed, he should even after all that time be treated as having met the condition of having entered into a jobseeker’s agreement from 11 October 1996, was a permissible one for the purposes of section 1(2)(b), since the legislation itself provides for the artificiality of treating the condition as satisfied for the past. As already noted, the decision was a practical solution to the problem and a generous one so far as he was concerned; it certainly did not lie in his mouth to complain of it on this ground since the alternative would have been to hold that not having complied with the condition in section 1(2)(b) at the time, he could never now do so.
23.	Finally the claimant made numerous detailed submissions on various points in the tribunal’s statement of reasons, which he said invalidated the decision itself as  set out in the earlier decision notice on page 117.   First, he pointed to a superfluous and inapposite reference in paragraph 17 of the reasons to section 11(5) of the 1995 Act (just after the correct reference in the same paragraph to section 11(4) mentioned above); but in my judgment the terms of the decision itself and the rest of the statement of reasons leave no room for doubt in the mind of any reasonable person that the tribunal was correctly addressing the question under appeal, which concerned the directions to be given in accordance with section 9(7) about the terms of the agreement and the conditions on which it could be treated as effective for the past period, to enable the condition in section 1(2)(b) to be met ex post facto.  
24.	Then he said the statement of reasons was in some respects inconsistent with the decision itself.  I am not satisfied that there was any material inconsistency. The extension of time for the document to be presented to the claimant for signature was a wholly justified piece of tidying-up of the implementation of the tribunal’s directions given what had been going on in the meantime, and as I have already held did not invalidate the decision itself in any way.  Nor did what the tribunal added in paragraph 43 of the statement of reasons, about omitting para 4(d) of the 1998 agreement from the terms directed for the earlier period as irrelevant and potentially too favourable to the claimant: this exclusion was not made in the decision itself or the agreement actually tendered, and if they actually gave the claimant something more favourable than the tribunal intended I cannot see how that puts him in a position to complain in law. 
25.	Nor in my judgment was there any error identifiable in the claimant’s final point.  This was that the tribunal’s decision had not stated clearly enough what the consequence would be in terms of entitlement if he never signed an agreement in the terms directed - as has indeed happened.  Again in my judgment the tribunal’s decision was entirely correct, in determining exactly the questions that needed to be decided on the appeal: namely what terms the agreement should be directed to contain, and under what if any conditions it might be treated as effective for the past period at issue.  These questions were clearly and in my judgment entirely properly determined by the tribunal. 
26.	The consequences, in terms of entitlement, of the tribunal’s decision and the subsequent failure to enter into any agreement in accordance with it are equally clear.  The claimant having unequivocally repudiated the terms the tribunal directed should be offered to him, by refusing to sign the agreement containing them (either when tendered  to him, or within anything that could remotely be described as a reasonable time for compliance with and implementation of the tribunal’s decision so as to give those terms retrospective effect) there is and can be no question of his having complied, or being treated as having complied, with section 1(2)(b) of the Jobseekers Act 1995 at any time from 11 November 1996 when the protection under regulation 8 of the transitional regulations ceased to apply to him, down to and including 20 February 1997 which was the end of the period at issue before the tribunal, so he cannot ever be entitled to any jobseeker’s allowance for that period.
27.	The appeal is dismissed accordingly.

(Signed)
P L Howell
Commissioner
6 May 2003