[2007] UKSSCSC CJSA_4196_2006 (05 June 2007)

CJSA/4196/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	By consent, I refuse leave to appeal against the decision of a legally qualified panel member dated 15 February 2006 whereby the claimant’s appeal to an appeal tribunal was struck out.

REASONS

2.	This application raises a short point of general interest as to the effect of a decision of an appeal tribunal allowing an appeal against a decision to terminate an award of jobseeker’s allowance on the ground that the claimant has failed to “sign on”.

3.	It appears that, on 25 January 2005, the Secretary of State superseded an award of jobseeker’s allowance on the ground that the claimant had failed to “sign on” on 17 January 2005.  The claimant appealed and her appeal was allowed by an appeal tribunal sitting on 7 September 2005 because the tribunal accepted that the claimant had attended the Jobcentre on 17 January 2005 ready and able to “sign on” but had been prevented from doing so by a member of staff who had taken issue with her about a request to check her payment record.  The tribunal decided that “the appellant should be treated as if she had signed on on that date”.  The Jobcentre appears to have taken the view that that decision was adequately implemented by deciding that there had been no overpayment up to 17 January 2005.  The claimant struggled in vain to obtain payments in respect of the period after that date, being told in a letter dated 16 January 2006 that the tribunal decision did not cover any period after that date.  On 18 November 2005, she had completed a form for appealing again to a tribunal but that was not initially processed because the claimant had been unable to identify a decision against which she wished to appeal.  All she sought was what she regarded as the proper implementation of the tribunal’s decision.  Eventually she insisted on the form being sent to the Appeals Service.  On 16 February 2006, the clerk to the tribunal wrote to her saying –

“I received your appeal on 14/02/2006.

The law says that the tribunal does not have the power to deal with the decision you are appealing against.

This means that your appeal has been brought to an end.”

Subsequent correspondence revealed that the claimant’s appeal had been referred to a legally qualified panel member who had struck it out on 15 February 2006.  After much further correspondence with the Appeals Service, the claimant wrote to the Commissioners’ Office on 27 October 2006 to seek leave to appeal.  Some time was then taken trying to obtain the tribunal’s file, which had been destroyed, and it was not until 11 January 2007 that the file was first referred to me.

4.	It is obviously true that there cannot be an appeal to an appeal tribunal under section 12 of the Social Security Act 1998 without there first having been a decision of the Secretary of State and it is also clear that there had been no relevant decision here when the claimant lodged her appeal.  Nonetheless, I have some doubt as to whether the legally qualified panel member was entitled to strike the claimant’s appeal out summarily, rather than declining jurisdiction after the claimant had been given the chance to attend a hearing.  Regulation 46(1)(a) and (3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991) permits a legally qualified panel member to strike out an “out of jurisdiction appeal” but that term is curiously defined in regulation 1(3) in such a way that it does not include all cases where a tribunal lacks jurisdiction.  On the other hand, there is no point in my giving leave to appeal if a new tribunal would ultimately have to decline jurisdiction.

5.	It has been possible to remedy the injustice that the claimant has suffered without giving leave to appeal.  The Secretary of State’s current representative accepts that the Jobcentre’s understanding of the effect of the decision of the tribunal dated 7 September 2005 was wrong.  The tribunal had not been entitled to consider whether the claimant had failed to “sign on” on any date after 25 January 2005 (the date of the Secretary of State’s decision to supersede the original award of jobseeker’s allowance) due to the effect of section 12(8)(b) of the Social Security Act 1998 and therefore it had not been entitled to deal with the consequences of any such failure.  The effect of the tribunal’s decision was therefore to reinstate the award of jobseeker’s allowance for an indefinite period, rather than only up to 17 January 2005.  If the Secretary of State wished to refuse to pay jobseeker’s allowance due to the claimant’s failure to “sign on” on a date after 25 January 2005, he had to issue another decision superseding the award of jobseeker’s allowance (as reinstated by the tribunal).  The Secretary of State’s representative, who has not conceded that I have any jurisdiction in this case, has helpfully arranged for a decision to be given against which the claimant can appeal.  (The jurisdictional question may soon be determined by the Court of Appeal in an appeal against my decision in CIS/1363/2005.)  On her side, the claimant has equally helpfully accepted that she should pursue such an appeal and that the application before me should be dismissed.  I accordingly dismiss this application.

6.	I do, however, note that a further element of confusion has crept into this case.  I hope the claimant and the local Jobcentre will be able to resolve it between them.  On 26 April 2007, the Secretary of State made a decision to the effect that the claimant was not entitled to jobseeker’s allowance from 7 September 2005 and he deferred the making of a decision in respect of the period from 18 January 2005 to 6 September 2005 while further enquiries were made.  The claimant was sent a letter to that effect, telling her that she had a right of appeal.  She replied saying that she was not clear why the letter had been sent as it appeared that the Jobcentre’s investigation was not complete.  On 3 May 2007, the Jobcentre asked her to “treat my initial letter as a courtesy letter to keep you updated on the current action being taken”.  The consequence appears to be that the claimant has not appealed, even though I do not think that she accepts that she is not entitled to jobseeker’s allowance from 7 September 2005.  My reading of the documents is that the Secretary of State has made a decision in respect of the period from 7 September 2005 and will make a decision in respect of the earlier period.  If I am right in thinking that the claimant wishes to challenge the decision in respect of the period from 7 September 2005, I suggest she writes to the Jobcentre now, saying that she wishes to appeal against the decision dated 26 April 2007 and that she will give her reasons when the decision in respect of the period from 18 January 2005 to 6 September 2005 has been made.  If the decision in respect of the earlier period is adverse to the claimant and she wishes to appeal against that decision too, it will obviously be desirable for the two appeals to be dealt with together.  She may wish to enclose with her letter a copy of this decision as an explanation for her letter and the lateness of her appeal.

7.	However, I must not be taken to be expressing any view as to the merits of the Secretary of State’s decision of 26 April 2007 or as to any appeal the claimant may make.  Not having seen the relevant evidence or heard any argument, it would be inappropriate for me to say anything about the broader merits of the parties’ cases.

	(signed on the original)	MARK ROWLAND
		Commissioner
		5 June 2007