[2007] UKSSCSC CJSA_2472_2005 (19 March 2007) 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal to the Commissioner is allowed. The decisions of the Birkenhead appeal tribunal dated 6 June 2005 in relation to the first decision (entitlement to jobseeker's allowance) of the Secretary of State given on 31 March 2005 and in relation to the second decision (variation of jobseeker's agreement) of the Secretary of State given on 31 March 2005 are erroneous in point of law, for the reasons given below, and I set them aside. I adjourn further consideration of the claimant's appeal against the first decision of 31 March 2005 on the terms set out in paragraph 32 below. It is expedient for me to give the decision that the appeal tribunal should have given on the appeal against the second decision of 31 March 2005 (Social Security Act 1998, section 14(8)(a)(i)). My decision is that the appeal is allowed; that if the claimant were to comply with the variation proposed by him on 7 February 2005 he would not satisfy the condition in section 1(2)(a) of the Jobseekers Act 1995 and it would not be reasonable to expect him to comply with the jobseeker's agreement as proposed to be varied; and that I give the directions set out in paragraph 31 below that the jobseeker's agreement of 31 January 2005 is to be varied and as to the terms on which the parties are to enter into an agreement to vary and the date on which a varied agreement is to be treated as taking effect (Jobseekers Act 1995, section 10(5) and (6)).

2.	This case is about a question to which one would expect the jobseeker's allowance (JSA) legislation to provide a simple answer: is a claimant who is not prepared to work at all on a day which is stated on the current jobseeker's agreement as a day of availability thereby not available for work, and not entitled to JSA? Although I have concluded that the legislation does supply a clear, though harsh, answer, the route is not easy to follow. It also raises difficult questions about the operation of the process for varying a jobseeker's agreement.

The factual background
3.	The essential facts are these, omitting the detail on some issues that have been strongly disputed, but turn out to be side-issues on my view of the law. A claim for JSA was made from 24 January 2005. The claimant was interviewed by an employment officer on 31 January 2005 to draw up a jobseeker's agreement. There can be no entitlement to JSA unless a claimant has entered into a jobseeker's agreement which remains in force (Jobseekers Act 1995, section 1(2)(b)). At the interview there were unresolved differences of opinion about the sorts of occupations for which the claimant should make himself available under the "permitted period" rules, about the acceptable daily travel times and start times in the light of the reliability or otherwise of public transport, and in particular about whether he should make himself available to work on Saturdays as well as Monday to Friday and about the total number of weekly hours of availability. Be that as it may, the claimant did sign the jobseeker's agreement now at pages 5a and 5b on 31 January 2005, along with employment officer, described as an adviser. The employment officer's notes of the interview record that the claimant said that he was signing under duress, as he has repeated consistently since. In his letter dated 7 February 2005 he stated that he signed the agreement in order not to lose benefit. The agreement stated the types of job that the claimant was looking for as "welfare benefits adviser, admin general office, customer service occs". It stated that he was available for work Monday to Saturday from 9am to 6pm, with maximum hours of 54. An award of JSA was made on 10 February 2005.

4.	The claimant's letter of 7 February 2005 was an application to vary the terms of the jobseeker's agreement signed on 31 January 2005. He wanted changes to the jobs to be looked for (including a "permitted period" of 13 weeks restricted to welfare rights adviser as his usual occupation), to the acceptable travel time, to availability for eight hours a day Monday to Friday and to a weekly maximum of 40 hours. He said that he would have realistic prospects of finding a job on his proposed conditions. The letter in reply from the business manager of the Jobcentre Plus office, dated 11 February 2005, rejected all those proposals except for that about the maximum hours of availability. The claimant was asked to come into the office to sign an amended agreement.

5.	The claimant attended another interview on 7 March 2005. However, the jobseeker's agreement put forward by the employment officer (pages 10a and 10b) made no alteration on any of the points proposed by the claimant, not even on maximum weekly hours. The claimant did not sign that agreement. Instead, he seems to have signed again the form ES2JCP that he had originally completed on 31 January 2005 on which he restricted himself to eight hours a day between 9am and 6pm from Monday to Friday. The employment officer explained that that restriction would lead to a suspension of payment of JSA and that the case would be referred to a decision-maker on behalf of the Secretary of State. The decision-maker sent the claimant a detailed questionnaire. Amongst his replies was the explanation that he was not willing to work Saturdays because he had contact visits with his children on that day. On a later reply he stated that his children were aged 11 and 17 and that the day of contact visits could not be changed because his ex-wife was a Christian and she and the children attended services and events on Sundays.

The decisions under appeal to the appeal tribunal
6.	On 31 March 2005 two decisions were made. The first superseded the decision awarding JSA with effect from 7 March 2005 on the ground that there had been a relevant change of circumstances, in that the claimant was not available for employment from that date. The superseding decision was that there was no entitlement to JSA from 7 March 2005. The second decision was as follows:

 "I determine that if [the claimant] were to comply with the proposed variation dated 07 February 2005 he would not satisfy the condition that he is available for employment and it would be unreasonable to expect [the claimant] to comply with the terms of the proposed variation of the Jobseeker's Agreement.

 I direct that the Jobseeker's Agreement should be varied, and that the terms of the variation should be as follows:
  • [The claimant] should be looking for welfare benefits adviser, administration/general office, customer service and any other work that he is capable of
  • He must be available to start work immediately
  • He must be available for at least 40 hours work each week
  • He must not restrict the days and hours that he is available for work
  • He must be prepared to travel at least 1 hour to a place of work (rising to 1½ hours after 13 weeks of making a claim to Jobseekers Allowance)
  • He must take the steps agreed on Jobseeker's Agreement dated 31 January 2005 to identify and apply for jobs."

It is now known that the letter notifying the claimant of the second decision said that arrangements would be made for him to be seen by an adviser to draw up a revised agreement, but that after further correspondence and the lodging of the appeals the claimant did not attend any such meeting.

The appeal to the appeal tribunal
7.	The claimant appealed against both decisions. The written submission to the appeal tribunal for the Secretary of State submitted that the claimant did not have a usual occupation, so could not have a "permitted period", that the restrictions on Saturday working and on start and finish times were unreasonable and that he had not shown that he had reasonable prospects of gaining work subject to the restrictions imposed. On the second decision, it was submitted that the variations proposed by the claimant would not leave him with reasonable prospects of finding work, so could not be accepted, and that the direction given by the decision-maker should be upheld. The claimant put in a detailed written submission dated 28 May 2005, with supporting documents, including a copy of Commissioner's decision CJSA/4435/1998 and copies of many job advertisements. I shall not attempt to summarise the claimant's submission, which challenged all the judgments of reasonableness and also submitted that the jobseeker's agreement signed on 31 January 2005 contained a number of illegal terms. He said that he had signed the agreement so as not to lose benefit, after failing in 90 minutes of argument to get a reasonable agreement, concluding that any illegalities could be corrected by an immediate application for a variation.

8.	The claimant attended the appeal tribunal hearing on 6 June 2005. There was clearly a fairly detailed discussion, although the claimant has said that there was some pressure of time at the end of the hearing. The appeal tribunal stated that it disallowed the appeal against both decisions. It took the view that the issues in dispute had narrowed down to the effect of the claimant's restrictions on days and hours of availability. The claimant says that the appeal tribunal was wrong to regard him as having conceded that the issues of permitted period and of travelling time were not in dispute. He was merely agreeing that he did not need to make oral submissions on those points in addition to his existing written submissions. But on my view of the case it does not matter who is right on all that.

9.	The appeal tribunal rejected the claimant's points on the reliability of public transport and then concluded that, despite further evidence that his ex-wife was difficult about varying the contact arrangements for the children, alternative arrangements for contact could be arranged if he were to secure employment that involved working on a Saturday. The statement continued:

"7. Regulation 7 of the Jobseeker's Allowance Regulations provides that a person `may restrict the total number of hours for which he is available for employment in any week to 40 hours or more providing
 (a)	the times at which he is available to take up employment (his `pattern of availability') are such as to afford him reasonable prospects of securing employment;'
Regulation 7 also requires that `his prospects of securing employment are not reduced considerably by the restriction imposed by his pattern of availability'. It is for the claimant to establish that he has reasonable prospects as per Regulation 10(2)."

The appeal tribunal concluded that the claimant did not have reasonable prospects of securing employment on the pattern of availability imposed from 7 March 2005. On the variation of the jobseeker's agreement, the appeal tribunal accepted that "customer service" should be omitted from the types of work to be sought (apparently following a concession by the presenting officer for the Secretary of State), but otherwise rejected the claimant's proposed variations.

The appeal to the Commissioner
10.	The claimant now appeals against the appeal tribunal's decisions with the leave of Mr Commissioner Levenson. He granted the claimant's request for an oral hearing of the appeal after the first round of written submissions was completed. The oral hearing was at Bury County Court on 2 June 2006. The claimant attended. The Secretary of State was represented by Mr Huw James, solicitor, instructed by the Solicitor to the Department for Work and Pensions. I thank them both for their submissions, but there had to be further written submissions on questions of interpretation of the legislation that had not previously been considered. The Secretary of State's further submission was dated 5 July 2006. The claimant's submission in reply was dated 14 August 2006. Because my consideration of the case took me well beyond what had been dealt with in those submissions, I issued a draft decision to the parties to give them an opportunity to comment. Their comments did not raise any significant objections to the draft decision.

11.	Because of the excessive complications of the application of the legislative structure to the unusual circumstances, I have had first to look at the appeal tribunal's decision on the appeal against the first decision given by the Secretary of State on 31 March 2005 in isolation, then at its decision on the appeal against the second decision given on 31 March 2005 and finally at the interaction of my conclusions about the appeal against the second decision with the appeal against the first decision.

(a) The decision on availability and entitlement from 7 March 2005
12.	 In my judgment the crucial provision is regulation 7(2) of the Jobseeker's Allowance Regulations 1996 ("the JSA Regulations"), which only approaches the making of sense if the whole of regulation 7 is looked at:

 "(1) Except as provided in regulation 13 and in regulation 17(2), a person may not restrict the total number of hours for which he is available for employment to less than 40 hours in any week.
  (2) A person may restrict the total number of hours for which he is available for employment in any week to 40 hours or more providing--
  (a) the times at which he is available to take up employment (his "pattern of availability") are such as to afford him reasonable prospects of securing employment;
  (b) his pattern of availability is recorded in his jobseeker's agreement and any variations in that pattern are recorded in a varied agreement; and
  (c) his prospects of securing employment are not reduced considerably by the restriction imposed by his pattern of availability.
  (3) A person who has restricted the total number of hours for which he is available in accordance with paragraph (2) and who is not available for employment, and is not to be treated as available for employment in accordance with regulation 14, for one day or more in a week in accordance with his pattern of availability shall not be regarded as available for employment even if he was available for a total of 40 hours or more during that week."

The circumstances of the present case do not fall within any of the categories set out in regulation 14 in which a claimant is to be deemed to be available for employment. Nor can the claimant benefit from any of the rules in regulation 13, on the assumption that regulation 7(2) is potentially subject to them.

13.	First, I am satisfied that, as asserted by the Secretary of State in the submission of 5 July 2006, regulation 7 covers cases of restrictions not just on the total hours to be worked in a week or on the start and finish times on a day, but also restrictions on the days of the week on which a claimant is available. The phrase "the times at which he is available" in regulation 7(2)(a) has a broad enough meaning to cover such cases. There is then also a neat fit with regulation 8, which deals with restrictions on the nature, terms and conditions or locality of employment.

14.	Second, the effective test under regulation 7(2) where a claimant puts some restriction on the total weekly hours of availability, but not a restriction to less than 40 hours, is that the claimant can only be available for employment if all three of sub-paragraphs (a) to (c) are satisfied. That follows from the rigour and scope of the general rule in section 6(1) of the Jobseekers Act 1995 that a claimant is available for employment if willing and able to take up immediately any employed earner's employment. The appeal tribunal concentrated on sub-paragraphs (a) and (c). However, in my judgment sub-paragraph (b) is fatal to the claimant's case here. The "pattern of availability" in regulation 7(2) is the pattern of times and days for which a claimant is in fact available from time to time. Sub-paragraph (b) requires the claimant's actual pattern of availability in any week to coincide with or be less restrictive than the pattern of availability recorded in the jobseeker's agreement in force in that week. Sub-paragraph (b) would have no practical effect if it was satisfied when any pattern of availability was recorded in the agreement. And if sub-paragraph (b) is not satisfied, it does not matter that the claimant has reasonable prospects of securing employment subject to his actual restrictions as to times and days and satisfies sub-paragraphs (a) and (c). The claimant does not qualify for the protection of regulation 7(2).

15.	In the present case, the claimant had made it clear by 7 March 2005 that his actual pattern of availability (excluding Saturday) did not coincide and was not less restrictive than the pattern recorded in the jobseeker's agreement signed on 31 January 2005 (including Saturday). That agreement continued in effect down to 7 March 2005, if not further. The only ways in which the Jobseekers Act 1995 allows an agreement which has come into force to cease to have effect is on the coming to an end of the award of JSA (section 9(12)) or by a variation under section 10. An agreement to vary only takes effect when signed by an employment officer and the claimant (section 10(2)). If a claimant's proposal for a variation, as here, is not agreed by an employment officer and is referred to a decision-maker in accordance with section 10(5), a decision in the form of the second decision in the present case does not in itself vary the existing agreement. A direction as to the terms on which the claimant and an employment officer are to enter into a variation agreement can produce at least three outcomes. One is that both parties do sign the variation agreement and it takes effect. Another is that the claimant fails, within 21 days of the issue of the direction (JSA Regulations, regulation 38), to sign an agreement on the terms directed and the decision-maker brings the existing jobseeker's agreement to an end under section 10(6)(c). A third is that the claimant fails to sign as above, but the decision-maker takes no further action to terminate the existing agreement. In that third situation, which is what appears to have happened in the present case, the existing jobseeker's agreement continues in force unless and until it comes to an end under section 10(12). Thus, as at 31 March 2005, the claimant could not be found available for employment from and including 7 March 2005, because of the effect of regulation 7(2).

16.	Could that conclusion be avoided if the claimant's arguments about illegal conditions in the jobseeker's agreement of 31 January 2005 or about duress were to be accepted? The claimant is in danger of creating a Catch 22 situation for himself here. If there was no valid agreement because of duress or illegality, then he would not have satisfied the condition in section 1(2)(b) of the Jobseekers Act 1995 and no award of JSA should have been made until he entered into a valid jobseeker's agreement (which can be backdated: regulations 35 and 32 of the JSA Regulations and section 9(7)(c)). However, I do not think that the claimant was really asserting before the appeal tribunal that the whole agreement was invalid because of illegality. In his written submission of 28 May 2005 he was asserting that the illegality of five conditions (eg to be available for 54 hours, in excess of the 48 stipulated in the Working Time Regulations, and to travel for 1½ hours immediately, instead of after 13 weeks) made it reasonable for him not to have complied with the agreement. The claimant did not assert that the condition of availability on Saturdays was illegal, merely unreasonable. However, under regulation 7(2) reasonableness of the pattern of availability recorded in the agreement is not relevant. Once the claimant has entered into the agreement, he must make himself available at least for the pattern recorded.

17.	Nor can an argument about duress be sustained. A claimant who cannot persuade an employment officer conducting an interview to change the terms of the officer's proposal that the claimant considers unreasonable has a choice. He can decline to sign the agreement on that occasion and come back for another discussion on a later date (as the employment officer here says was offered to the claimant) or ask for the proposed agreement to be referred to the Secretary of State under section 9(6) of the Jobseekers Act 1995. In both of those circumstances, no JSA will be awarded at that point. But an agreement subsequently entered into without a reference to the Secretary of State is automatically backdated to the date of claim (JSA Regulations, regulation 35) and one entered into after a direction by the Secretary of State may be backdated in accordance with the direction depending on the reasonableness of the claimant's not having accepted the originally proposed agreement (section 9(7)(c) and regulation 32). The other choice for a claimant is to sign the agreement despite the belief that it is unreasonable and immediately to apply for a variation, with the hope that the variation will be backdated. That choice allows an award of JSA to be made at that point, but with the consequence that the claimant is bound to the pattern of availability recorded in the agreement unless and until a variation in that pattern is recorded in a varied agreement signed by both sides. The choice may well be a very difficult one for a claimant to make and the circumstances of an interview may well make it very difficult for a claimant to think clearly through the alternative consequences. But that falls well short of anything that could properly be described as duress and certainly well short of anything that could render the claimant's assent to and signature of the agreement of 31 January 2005 ineffective.

18.	Accordingly, the appeal tribunal's decision on availability from and including 7 March 2005 was the only one legally open to it on the circumstances obtaining on 31 March 2005 as known to the appeal tribunal. It does not matter whether the appeal tribunal's reasoning on the reasonableness of the claimant's unwillingness to work on Saturdays and on his prospects of securing employment on a Monday to Friday basis can be challenged as inadequate. That would not justify setting aside the appeal tribunal's decision. But I come back below to the question of whether there was nevertheless an error of law.

(b) The decision on the proposal for a variation of the jobseeker's agreement
19.	A first question might be whether there was any point in the making of this decision, or its consideration by the appeal tribunal, given that the first decision of 31 March 2005 had terminated the claimant's entitlement to JSA from 7 March 2005. That would normally lead to the jobseeker's agreement of 31 January 2005 ceasing to have effect from 7 March 2005 (Jobseekers Act 1995, section 9(12)) and it rather looks as though it could not have continued to have effect under regulation 36 of the JSA Regulations, as any new claim would have been made outside 14 days from the end of the award of JSA and the other conditions do not seem to be met. However, there was still a point because it is possible for a varied jobseeker's agreement to take effect retrospectively, at least if there has been a reference to the Secretary of State. Section 10(6)(d) allows the decision-maker to direct that if the jobseeker's agreement is varied and any appropriate conditions are satisfied:

"the agreement as varied is to be treated as having effect on such date, before it would otherwise have effect, as may be specified in the direction."

The legislation does not provide any general rule as to when a varied agreement would have effect or, in contrast to the situation under section 9, what factors are to be taken into account in considering a direction under section 10(6)(d) (regulation 39 of the JSA Regulations seems only to have a practical application in relation to section 10(6)(b)). Neither the second decision of 31 March 2005 nor the appeal tribunal's decision said anything at all about the date on which any agreement signed in pursuance of its direction would come into effect. But there was at least the potential for a direction that it would come into effect from 7 March 2005 or before (eg the date of the claimant's application), so as potentially to impact retrospectively on the application of regulation 7(2) to the actual pattern of availability put forward by the claimant from 7 March 2005. Such an impact is possible even if a jobseeker's agreement has ceased to have effect. It can have an impact in the period for which the agreement did have effect.

20.	However, such an impact could not have been considered by the appeal tribunal on the appeal against the first decision of 31 March 2005 as things stood on 6 June 2005. That is because of the rule in section 12(8)(b) of the Social Security Act 1998 prohibiting the taking into account of circumstances not obtaining at the date of the decision under appeal. An existing jobseeker's agreement is only replaced by a varied agreement when that agreement is signed by both parties. It is not replaced by a mere direction. No varied agreement was signed in the present case, but even if one had been signed, that would necessarily have happened after 31 March 2005, so that at first sight it could not have been taken into account. But the signing of a varied jobseeker's agreement with retrospective effect to 7 March 2005 or earlier could be said to make an alteration to the circumstances obtaining on 31 March 2005. An analogy can be drawn with the decision of Mr Commissioner Jacobs in CJSA/2375/2000. There the claimant had failed to attend two training courses and was sanctioned by losing two weeks' benefit for the first failure and four weeks' for the second. Four weeks' loss of benefit could only be imposed if there already been a two week sanction. The appeal tribunal allowed the claimant's appeal against the first sanction, finding good cause for his non-attendance. But it dismissed his appeal against the second sanction and the length of the loss of benefit. The Commissioner held that section 12(8)(b) did not prevent the appeal tribunal from taking into account the effect of its decision on the first failure to attend on the length of loss of benefit for the remaining failure. He said that in a case like the one before him:

"an appeal tribunal is entitled to take account of any factor known to it that relates to a past period or past event that was relevant to the decision under appeal, even if the position at the date of the hearing is different from that at the date of the decision. This gives section 12(8)(b) a sensible operation."

21.	If, for some reason, that argument does not work, the signing of the varied agreement would be a relevant change of circumstances in relation to the appeal tribunal's decision on availability from that date. It could be relied on as a ground of supersession of that decision (by analogy with Commissioner's decision R(G) 3/58 and Chief Adjudication Officer v McKiernon, appendix to R(I) 2/94). But there would, at least in the circumstances of the present case, be difficult and convoluted issues to resolve about the date from which any superseding decision could take effect either following an application by the claimant or following supersession action on the Secretary of State's own initiative.

22.	On either alternative, however, there was a point to the appeal tribunal's consideration of the appeal against the second decision of 31 March 2005. In my judgment it was therefore an error of law for the appeal tribunal not to have investigated what the point of the appeal against the second decision of 31 March 2005 was and not to have considered the date from which any varied agreement signed in pursuance of its direction was to take effect.

23.	The appeal tribunal stated on the decision notice that the claimant's appeals were disallowed and that both of the Secretary of State's decisions of 31 March 2005 were confirmed, but nonetheless made an alteration to the direction contained in the second decision of 31 March 2005 to exclude customer service occupations from the types of job to be looked for. That was in substance an allowance of the claimant's appeal, although not giving him everything that he had asked for. That confusion might be overlooked providing that it is clear that it is the substance that had to be applied as a result. However, there was a consequent error of law, as submitted by the claimant. If customer service occupations were to be disregarded, that would change the basis of the judgment under section 9(5) of the Jobseekers Act 1995 that the claimant would not satisfy the condition of being available for work subject to the restrictions he was proposing. The reasonableness of his prospects of securing employment would have to be judged in relation only to the other categories. The claimant had produced a number of notifications of job vacancies in welfare benefits advice and general office administration which only required work from Monday to Friday, and hours of about 9am to 5pm. The appeal tribunal needed to deal expressly with the claimant's argument based on that evidence in order to explain why it did not change the decision-maker's direction ("must not restrict the days and hours that he is available for work") so as to allow the exclusion of Saturdays and Sundays if keeping to availability for at least 40 hours a week.

24.	For those reasons, I conclude that the appeal tribunal erred in law in its decision on the appeal against the second decision of 31 March 2005 and its decision must be set aside.

(c) The interaction of the conclusion in (b) with (a)
25.	I need to look at what consequences might have followed if the appeal tribunal had not made the errors of law identified in (b) above and on the assumption that it decided to direct that the terms on which a varied agreement was to be made not only excluded customer service occupations but also only required the claimant to be available on Mondays to Fridays from 9am to 6pm for a total of at least 40 hours a week. I shall also assume for present purposes that the appeal tribunal decided to direct that the varied agreement was to take effect from 7 February 2005, as it followed the substance of the claimant's application of that date. As explained above, that would not in itself have varied the jobseeker's agreement of 31 January 2005. That would only happen once the claimant signed a varied agreement on the terms specified in the direction. It seems that the employment officer has no choice other than to accept whatever is directed by the Secretary of State or an appeal tribunal. On the reasoning set out in paragraph 20 above, the signing of a varied agreement effective from 7 February 2005 would produce an alteration in the circumstances obtaining as at 31 March 2005 in relation to the first decision of that date. What therefore should the appeal tribunal have done in relation to that appeal if it was minded to do what I have assumed in relation to the appeal against the second decision?

26.	I do not think that it would have been proper for the appeal tribunal in those circumstances simply to have stood by what it would have decided on entitlement to JSA from 7 March 2005 on the circumstances as they were known to be on 6 June 2005, and thereby expose the claimant to all the difficulties and uncertainties of the supersession process. On the assumptions made above, the appeal tribunal would have itself created the basis, by its directions, for the making of a significantly varied jobseeker's agreement taking effect within the period prior to the date of the decision under appeal. The only proper course would have been to adjourn the hearing of the appeal against the first decision of 31 March 2005 to give the claimant an opportunity to sign a varied agreement on the terms specified in the directions. If he did sign it, then the circumstances obtaining as at 31 March 2005 would have altered and at the hearing after the adjournment the appeal tribunal could reconsider the question of the application of regulation 7 of the JSA Regulations on that altered basis. If the claimant had not signed the varied agreement after having been given a reasonable opportunity to do so, the appeal tribunal would be justified in considering that question on the existing basis that the jobseeker's agreement in effect was that signed on 31 January 2005.

27.	Accordingly, as the appeal tribunal's decision on the appeal against the second decision of 31 March 2005 must be set aside as erroneous in point of law, its decision on the appeal against the first decision of 31 March 2005 must fall with it. If the appeal tribunal had avoided the errors of law on the appeal against the second decision, the consequences might have required it to adjourn the appeal against the first decision, as explained in the previous paragraph. That is a sufficient error of law to require the setting aside of that decision also.

The Commissioner's conclusions on the appeal
28.	The question then arises of whether I should refer the case to a new appeal tribunal for rehearing or whether I should substitute a decision. I take the view that the appeal tribunal of 6 June 2005 made the essential findings of primary fact. The disputes are about the inferences and conclusions to be drawn from those primary facts. It is therefore expedient for me to substitute a decision, at least on the appeal against the second decision of 31 March 2005. However, in relation to the appeal against the first decision of 31 March 2005 there may be further findings of relevant fact to be made and further consideration of that appeal is adjourned in paragraph 32 below.

29.	I start with the appeal against the second decision of 31 March 2005. It is plain that the decision under appeal was right in directing a variation of the jobseeker's agreement of 31 January 2005 to make the minimum weekly hours of availability only 40, rather than 54, and to amend the term about travelling time. I then see no reason to differ from the judgment of the appeal tribunal of 6 June 2005 that customer service occupations should, in the light of the claimant's work history, be excluded from the categories of jobs to be looked for. My judgment is then that the claimant should only be required to make himself available for employment as a welfare rights adviser or in general office administration from Monday to Friday, within the hours of 9am to 6pm. I take account of what is common knowledge of the days and hours on which advice organisations and many offices operate, as well as the details of job vacancies provided by the claimant. Although some advice or office jobs might require weekend or evening working, or an earlier start than 9am, I am satisfied that a sufficiently large proportion would not for the claimant to have had reasonable prospects of securing employment subject to the conditions above. To put it another way, I am satisfied that his prospects would not have been significantly lessened compared with being available without restriction as to days of work and start and finish times. The claimant's proposed variation so as to have a permitted period of 13 weeks in which to look exclusively for work as a welfare rights adviser is rejected, as he had not been employed in that capacity since 1997 or 1998 and it could not be regarded as his usual occupation. Because of that, his proposal would not meet the conditions in section 10(5) of the Jobseekers Act 1995. But those conditions would be satisfied by a variation on the basis set out above and directions should be given under section 10(6) that the parties should enter into an agreement to vary the agreement of 31 January 2005 on those terms.

30.	On the question of whether a direction should be given as to the date on which any varied agreement is to be treated as having effect (section 10(6)(d)), it seems to me that, in the absence of any provision specifying when such an agreement would take effect if there were no direction, a direction needs to be given in most, if not all, cases. The prescribed manner for varying an agreement (in writing and signed by both parties: JSA Regulations, regulation 37) includes the requirement that the agreement stems from a proposal by the claimant or the employment officer. The obvious choices for date of effect are therefore the date on which the varied agreement is signed by the second party and the date on which the proposal to vary was made. Where the proposal for variation comes from the claimant, and in the light of the difficult choices described in paragraph 17 above, there must be a strong pointer towards the date on which the proposal was made. That at least would be the position where the variation makes the terms of the jobseeker's agreement less restrictive on the claimant. If the variation has been agreed as proper by the employment officer, why should the claimant not benefit from it from the date that he asked for the variation, unless it rests on some specific change of circumstances (eg a change in physical or mental condition) on a later date? In the present case there is no such factor. The variation I have directed accepts the substance of the claimant's proposal. I shall direct that if a varied agreement is entered into pursuant to my directions it is to take effect on 7 February 2005.

31.	Accordingly, my decision on the appeal against the Secretary of State's second decision of 31 March 2005 is to allow the appeal and to direct that the jobseeker's agreement of 31 January 2005 is to be varied and that the terms on which the claimant and the employment officer are to enter into an agreement to vary it are those set out in the second decision of 31 March 2005 with the exceptions that "customer service" is to be excluded from the first bullet point and for the fourth bullet point is to be substituted the term that the claimant must make himself available for work on Mondays to Fridays between the hours of 9am and 6pm (subject to the overall weekly figure of 40 hours) and with the addition that I direct that if the parties enter into a varied agreement on those terms it is to be treated as taking effect on 7 February 2005.

32.	It is therefore proper for me to adjourn further consideration of the claimant's appeal against the first decision of 31 March 2005 for the time necessary for arrangements to be made for the preparation of a varied agreement on the terms directed above and for the claimant to have the opportunity of entering into the varied agreement. I direct that, if the jobseeker's agreement is varied, the Secretary of State is, unless he exercises the power in regulation 3(4A) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, to make a written submission to the Commissioner as soon as practicable afterwards stating his view on the effect of that having happened on the proper decision on the appeal against the first decision of 31 March 2005 and how that appeal ought to proceed. The Secretary of State has in the response dated 4 December 2006 acknowledged the existence of the power in regulation 3(4A) to revise a decision that is under appeal where the appeal has not been determined. If that power is exercised, the Secretary of State is to give notice to the Commissioners' office as well as to the claimant. I further direct that if, six weeks after the date that this decision is sent to the claimant, the jobseeker's agreement of 31 January 2005 has not been varied, the Secretary of State is to make a written submission to the Commissioner setting out the state of affairs and making a submission about how the appeal ought to proceed.

(Signed)        J Mesher
Commissioner

Date:   19 March 2007