[2007] UKSSCSC CJSA_3597_2006 (18 May 2007)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:
I SET ASIDE the decision of the Sheffield appeal tribunal, held on 24 May 2006 under reference U/01/138/2006/00544, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is that section 19 of the Jobseekers Act 1995 did not apply to the claimant and he is not barred from entitlement to credits under regulation 8A of the Social Security (Credits) Regulations 1975 for the inclusive period 17 August 2005 to 13 September 2005 by reason of the disqualification wrongly imposed on him under that section.

The issue and how it arises
2.	The issue in this case is whether the claimant is entitled to credits for social security contributions on the basis of unemployment. 
3.	The claimant was not awarded a jobseeker's allowance, because his earnings for work of less than 16 hours a week exceed his entitlement. However, he registered to claim credits. These were refused for the inclusive period 17 August 2005 to 13 September 2005, on the ground that the claimant had refused without good cause to take part in an Intensive Activity period employment programme. This led to a disqualification under section 19 of the Jobseekers Act 1995. And this led to the refusal to credit contributions for the period.
The law
4.	The claimant is entitled to credits if he satisfies regulation 8A of the Social Security (Credits) Regulations 1975. The relevant provisions read:
‘(2)	Subject to paragraph (5) this regulation applies to a week which, in relation to the person concerned, is-
…
(b)	a week for the whole of which he satisfied or was treated as having satisfied the conditions set out in paragraphs (a), (c) and (e) to (h) of section 1(2) of the Jobseekers Act 1995 (conditions for entitlement to a jobseeker's allowance) and in respect of which he has satisfied the further condition specified in paragraph (3)
…
‘(3)	The further condition referred to in paragraph (2)(b) is that the person concerned-
(a)	furnished to the Secretary of State notice in writing of the grounds on which he claims to be entitled to be credited with earnings-
	(i)	on the first day of the period for which he claims to be so entitled in which the week in question fell; or
	(ii)	within such further time as may be reasonable in the circumstances of the case; and 
(b)	has provided any evidence required by the Secretary of State that the conditions referred to in paragraph (2)(b) are satisfied.’
5.	The Secretary of State has not taken any point on paragraph (3), so I need only concern myself with paragraph (2)(b). The provisions of section 1 the Jobseekers Act 1995 referred to in that paragraph are as follows:
‘(2)	Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he-
(a)	is available for employment;
…
(c)	is actively seeking work;
…
(e)	is not engaged in remunerative work;
(f)	is capable of work;
(g)	is not receiving relevant education;
(h)	is under pensionable age’.
‘Remunerative work’ is governed by section 35(2), which refers to paragraph 1 of Schedule 1, which leads to regulation 51 of the Jobseeker's Allowance Regulations 1996, which defines it as work of not less than 16 hours a week.
6.	Paragraph (2) is subject to paragraph (5), which contains circumstances in which regulation 8A does not apply. None of those circumstances applies. The closest one is paragraph (5)(c):
‘(5)	This regulation shall not apply to-
…
‘(c)	 a week in respect of which, because of section 19 of that Act [the Jobseekers Act 1995], a jobseeker's allowance was not payable to the person concerned even though he satisfied the conditions for entitlement to that allowance’.
This does not apply. A jobseeker's allowance is not payable to the claimant, but that is not because of section 19; it is because of the claimant’s earnings. 
How the law applies
7.	The Secretary of State now concedes that the claimant should not have been disqualified under section 19, because he was not otherwise entitled to a jobseeker's allowance. I accept that concession as correctly made in law.
8.	The tribunal went wrong in law because it failed to consider regulation 8A. It dealt exclusively with the disqualification and whether that was rightly made. No doubt that reflected the way the appeal was presented to the tribunal by the claimant. However, the issue of disqualification was before the tribunal and it was obliged to deal with it. The ground on which I have allowed the appeal was different from that put forward by the claimant. However, that did not excuse the tribunal from deciding the case on the ground that the disqualification did not affect credits because the claimant was not otherwise entitled to a jobseeker's allowance. The tribunal would have realised that if it had read regulation 8A(5)(c). 
9.	The tribunal could also have come to the same conclusion by reading section 19(1). This provides:
‘Even though the conditions for entitlement to a jobseeker's allowance are satisfied with respect to a person, the allowance shall not be payable in any of the circumstances mentioned in subsection (5) or (6).’
That shows that the disqualification only operates to prevent payment. It has no application if the claimant is not entitled to payment of the allowance. And the opening words make clear that it only operates if the claimant otherwise satisfies the conditions of entitlement to an allowance. In view of his earnings, he did not satisfy those conditions. 
Disposal
10.	I allow the appeal and give the decision suggested by the Secretary of State. 
11.	I emphasise that I have only been concerned with the period covered by the decision under appeal. The claimant has been subject to disqualification for other periods. They are not before me.
12.	
I also emphasise that I have dealt with the issue of disqualification, which is the only issue raised before the tribunal and before me. There may be an issue whether the claimant, by reason of his refusal to take part in the programme, was available for and actively seeking work so as to satisfy section 1(2)(a) and (c). That is not before me. 

Signed on original
on 18 May 2007	Edward Jacobs
Commissioner