Commissioner’s File:  CSJSA/495/2007
CSJSA/505/2007
SOCIAL SECURITY ACT 1998

APPLICATION FOR LEAVE TO APPEAL ON A QUESTION OF LAW FROM A DECISION OF AN APPEAL TRIBUNAL

DETERMINATIONS BY SOCIAL SECURITY COMMISSIONER

These applications by the claimant for leave to appeal on a question of law from the decisions of the appeal tribunal dated 4 July 2007, in respect of appeals against decisions of the decision maker of 27 March 2007 and 1 May 2007, came before me for oral hearing, on my direction, on 17 October 2007.  The claimant did not appear before me.  He explained in a letter that he had joined a religious order and that his superiors would not permit him to attend the hearing on 17 October 2007.  He indicated that he would be obliged if the Commissioner could proceed without his presence at the hearing.  He was not represented.  The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Matheson, Solicitor of the Office of the Solicitor to the Advocate General.  In terms of regulation 24(4) of the Social Security Commissioners (Procedure) Regulations 1999, I decided to proceed with the hearing of these applications in the absence of the claimant.  

The claimant had, in response to my direction of 15 October 2007, given consent under regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999, in the event that I granted leave, to treat and determine the application as an appeal.  Mr Brodie, on behalf of the Secretary of State, declined to give such consent.  His position in respect of both applications was that they did not disclose any arguable error in law on the part of the tribunal and that, in any event, there were no realistic prospects of success likely to benefit the claimant.

In CSJSA/495/07, the decision of 27 March 2007, which was appealed against to the tribunal, the decision was that a sanction was imposed for the period 3 April 2007 to 16 April 2007 in respect of the claimant’s award of Job Seeker’s Allowance.  This was because the claimant was notified by an employment officer of a place on an intensive activity period employment programme which was or was about to become vacant and he refused to accept that place when it was offered to him and he did not have good cause for his refusal.  The decision appealed against in CSJSA/505/07 of 1 May 2007 was an identical decision imposing a sanction in respect of the claimant’s award of Job Seeker’s Allowance from 8 May 2007 to 4 June 2007.

The tribunal heard both appeals against these decisions on 4 July 2007.  It disallowed the appeal in both cases and confirmed both decisions of the Secretary of State.  	

The claimant has appealed against both these decisions with identical grounds of appeals.  The grounds of appeal are set out at some length.  They are principally but not exclusively directed to the independence of the tribunal and his profound objection to the New Deal Programme of which, under the scheme of the Job Seeker’s Act and Regulations made thereunder, the “intensive activity period employment programme” forms part.  Identifying what errors in law are asserted by the claimant, as opposed to disagreement with the scheme, has been difficult.  I have, in the event, dealt with each of the numbered paragraphs contained in the grounds of appeal in turn, which has resulted in this determination being unavoidably lengthy.

The first ground of appeal was that the tribunal were not made aware of the true reason for the claimant’s non-appearance at the tribunal on 4 July 2007.  It is suggested on the grounds of appeal that there is a possibility that his non-appearance before the tribunal may have given the tribunal the wrong impression and cast him in an unfavourable light.  He says that a negative impression from the outset may have contributed to the tribunal’s decisions to refuse his appeals.  I do not consider that this ground of appeal is arguable.  The claimant had presented to the tribunal a full written submission of his position.  He does not set out any basis for his assertion that his non-appearance may have given the tribunal the wrong impression and cast him in an unfavourable light.  Perusal of the tribunal’s statement of reasons does not import that this was the case.  Further, the assertion is not linked to any specific example as to why the decisions were adverse to the claimant by virtue of the tribunal forming an attitude in respect of him by virtue of his non-appearance.  It is quite clear from perusal of the tribunal’s statement of facts that they were capable of properly determining the appeal on the written submissions that had been presented to them by the claimant and this is what they did. 

The claimant, in his appeal to the tribunal, had asserted that the “appeal service” which was to hear his appeal cannot claim to be independent because it is state-funded.  In the statement of reasons, the tribunal chairman said:

	“In any civilised country, the judicial system is paid for by the State”.

It is asserted that in so saying, the tribunal erred in law upon the basis that it was not for the tribunal chairman to indicate	whether this country is civilised or not and that this cannot be proved.  The grounds of appeal then go on to say:

“Mr Kidd’s, [the tribunal chairman’s] statement being subjective is therefore irrelevant.  It cannot be used to support his claim that the Appeals Service is independent.  This fact casts a doubt on the integrity and the ability of the Appeals Service to judge my two appeals with impartiality.  Mr. Kidd’s proposal that we live in a civilised nation is subjective, unproven and hence irrelevant.  His use of this proposal is a mistake and wrong in law.  Chairmen of Tribunals should not base their appeal refusals on the irrelevant.”	

Mr Brodie submitted that this ground of appeal did not demonstrate any arguable error in law on the part of the tribunal.  I agree with that proposition.  This ground does not demonstrate that the decision of the tribunal on the material issues before the officials was erroneous in law.  The chairman’s comment does not go to the essence of the issues which were before the tribunal.

The independence of the tribunal is also raised in the third ground of appeal.  It is said that the tribunal had asserted that state funding does not compromise the independence of the judicial system.  The ground of appeal then went on to say:

“In the Oxford English Dictionary, independent is described as:  1.  free from control in action, judgement etc;  autonomous, 2.  not dependent on anything else for function, validity, etc;  separate.  3.  not reliant on the support, esp. financial support, of others.  Unless there is a mistake on this page in my dictionary the Appeals Service cannot claim to be independent, especially in relation to financial support.  This claim is illogical as the above evidence shows.  Your forms should in future state that The Appeals Service will attempt to be impartial.  Mr. Kidd’s statement that State funding does not compromise Appeals Service independence is not true.  This fact casts doubt on the Appeals Service integrity and ability to judge my two appeals with impartiality and is unlawful.  Mr. Kidd’s proposal that the Appeals Service can be independent even when it receives State funding is a mistake and therefore this proposal cannot be used as a defence to my initial claim.  Mr Kidd has made a conscious error of judgement here.  Mr Kidd should have investigated the definition of independent firstly and this procedural error would not have occurred.”

Mr Brodie submitted that these grounds of appeal were unarguable.  What they did not do was address the way in which the independence of the judiciary is to be tested.  It was his submission that the funding of the Courts, including tribunals, does not of itself compromise the independence or impartiality of the judges that sit in them.  He also submitted that the fact that the salary of the judges was paid by the State does not leave the judge obligated to the Government.  It was his submission that the claimant’s argument would apply to any case before the Court or tribunals in which the State was a party to the proceedings before them.  Indeed, he submitted that in the instant cases on the argument of the claimant, the Commissioner and the Superior Courts would be in the same position as the Tribunal Service.  It was his submission that the security of tenure given to the judge, in this case the tribunal chairman, by virtue of his appointment, guaranteed the independence.  He also submitted that the Tribunal Service was completely independent of the Department of Work and Pensions.  I have no hesitation in finding this ground of appeal unarguable.  I accept Mr Brodie’s submission.  I consider that it is clearly and obviously correct.  

The fourth ground of appeal shortly put related to the fact that, in the statement of reasons, it was said:

“The appellant objects to the New Deal programme on the basis that it is “a form of slavery”.”  

It is said that tribunal misrepresented the claimant’s argument because it deliberately omitted the word “modern” from his appeal argument.  The claimant indicates that he is arguing that the New Deal was/is a form of modern slavery.  He then goes on to say:

“I have deliberately used the word “modern” because the word “modern” indicates our post-industrial, advanced capitalist present age and our technological/consumer/
service society.  One result of this type of society is an underclass.  By deliberately misinterpreting my argument Mr. Kidd is avoiding having to address the substantial difference between slavery and modern slavery and hence the modern slavery of today’s unemployed underclass.  Some definitions of advanced capitalism are:  modern, hi-tech and multinational.  John Kingdom who wrote a best setting book titled “Government and Politics in Britain” proposes in relation to the above facts that:  “Technology makes workers less important, increasing opportunities for the few to amass wealth”.  I think it is very clear from the way unemployed people are treated under New Deal that Mr. Kingdom certainly has a very valid argument.  The way in which Mr. Kidd has refused my two appeals against New Deal is further evidence of the State’s control and subjugation of the underclass.”

In my view, no identifiable error in law has been demonstrated in this ground of appeal.  There is an objection by the claimant to the statutory scheme in respect of the “New Deal” set out in the Job Seeker’s Act 1995 and the Regulations made thereunder.  The claimant’s perception that the New Deal programme is a form of modern slavery does not render the statutory scheme illegal.  The assertions that he makes would not independently demonstrate any error in law on the part of the tribunal with the result that the tribunal’s decision upholding the sanctions were erroneous in law.  Unless there was some legal basis for challenging the statutory scheme successfully, the tribunal were bound to apply the law as set out in the legislation and this they did.  

Further, as was pointed out by Mr Brodie, the claimant appears in paragraph 10 to be asserting that he was not relying upon an assertion that the statutory scheme, which gave rise to the decisions appealed against to the tribunal, was in breach of his human rights as contained in the European Convention for Human Rights.  He said:

“The tribunal have summed up my stating that the New Deal “programme” was not a breach of the appellant’s human rights”.  Nowhere in my two appeals have I ever used the term “human rights”.  It is unlawful and a mistake for the Tribunal to inject this term in an attempt at avoiding the denial of my above four arguments.”

Notwithstanding what the claimant has said in paragraph 10 of his grounds of appeal, in paragraph 5, it is his position that unemployed individuals are forced to work under the New Deal programme or their benefit is affected and that this amounts to forced labour contrary to article 4 of the Convention.  He submits that this is prohibited.  He goes on to say:

“It is also beyond dispute that any unemployed individual who does participate in the New Deal programme through fear of losing benefit is only paid an extra £15 per week approximately.  This is below the minimum wage and apart from being discriminatory is slave wages and hence a form of modern slavery.  According to Mr. Kidd slavery and forced labour are prohibited under Article 4.  Mr Kidd has not applied the European law that he has quoted.  A mistake has been made in this area and Article 4 of the European Law has not been applied correctly”.

Mr Brodie submitted that this ground was unarguable.  It was his submission that the claimant was not forced to do anything.  It was simply that, if the claimant did not take the placements, then he may be subject to a sanction.  He cited two cases, which have been decided by the European Court of Human Rights, which demonstrate that conditions such as those contained in the Job Seeker’s Legislative Scheme, did not breach Article 4.  They are application No. 7602/76 X v. the Netherlands and Johan Henk Talmon v. the Netherlands (application No. 30300/96).  

I consider that the claimant’s grounds are unarguable.  It is not arguable that Article 4(1) that no one shall be held in slavery or servitude has been breached, as it is quite clear that the kind of programme that the claimant was required to engage in, does not have the quality of either slavery or servitude.  The claimant would have to rely on Article 4(2) that “no one should be required to perform forced or compulsory labour”.  I consider that the decision in Application No. 7602/76 X v. the Netherlands is directly in point and demonstrates that any assertion of a breach of Article 4 at paragraph 4.2 would be unarguable.  What was said in that case was:

“This provision stipulates that “No one shall be required to perform forced or compulsory labour”.  The Commission observes however that in pursuance of Dutch legislation relating to unemployment benefits, no one is forced, by whatever penalty, to accept a job offer made by competent public authorities.  A refusal does not constitute an infringement of the law.  The acceptance of a convenient employment is only a condition for granting unemployment benefits.  The refusal is penalised by the temporary loss of these benefits, excluding any other measure.  There can therefore be no question of forced or compulsory labour within the meaning of Article 4, para. 2 of the Convention.

An examination of the complaint as presented by the applicant, does not show the slightest appearance of a violation of this provision.  It follows that the application, considered under Article 4, para (2) is manifestly ill-founded within the meaning of Article 27, para. (2) of the Convention”.

The sixth ground of appeal was in Mr Brodie’s submission, a misunderstanding by the claimant as to why and how case law was used by a legal decision maker.  Such a decision maker looks at the case law to determine what the principle is and having done so, whether the principle applies to the facts of the case.  Thus the consideration of the case of Van Droogenbroeck v. Belgium (1982) 6EHRR163 was used for the purpose of demonstrating how Article 4 is to be interpreted.  The conclusion reached by the tribunal that “the Strasbourg jurisprudence regards slavery, servitude and forced labour as something of a more extreme level of being required to take part in a programme as part of an entitlement to benefit.”

That in my view is a supportable and correct conclusion.  There was no intention on the part of the tribunal to insult the claimant or to “reduce” the claimant, as he puts it, “to the level of a Belgian convict”.  

Paragraph 7 of the grounds of appeal in my view is unarguable in respect that the conclusion reached by the chairman accurately reflected the position as I have indicated under reference to the cases which Mr Brodie cited to me and which I have referred to above.

I am satisfied that paragraph 8 does not demonstrate any error in law on the part of the tribunal.  What the tribunal were doing, using their inquisitorial jurisdiction, was to consider whether the claimant had any basis for establishing good cause for the purposes of Section 19(5)(b).  This was an exercise which was carried out to consider all aspects of the case which were material.  The claimant does not seek to demonstrate that there was any material error in law in respect of the substance of the approach of the tribunal.

In relation to paragraph 9 of the grounds of appeal, I am not satisfied that any arguable error in law on the part of the tribunal which would benefit the claimant has been established.  Like the claimant, it is not at all clear to me what the first paragraph on the last page of the statement is directed to.  However, it does not materially effect the decision made by the tribunal.  The claimant himself accepts that it is a procedural error at best.

Paragraphs 10 and 11 are directed to the issue of discrimination and the claimant’s assertion that the statutory scheme is a discrimination against social class.  He says in paragraph 11:

“I have argued that New Deal is a form of modern slavery. This has not been addressed or denied by the Tribunal.”

As I have indicated before, the claimant appears to be seeking to advance this argument outwith the scope of a breach of his rights under the European Convention.  He has not demonstrated any error in law unconnected to such a breach.  Mr Brodie accepted that Job Seeker’s Allowance is a possession covered by Article 1 of Protocol 1 of the Convention.  However, it was his submission that no case could be made out that there was breach of Article 14 in conjunction with the substantive right under Article 1 of Protocol 1.  It was his submission, that for the purposes of discrimination, he would have to rely on the phrase “other status” for the purposes of discrimination.  It was his submission that no relevant comparator has been established.  He also submitted that such a comparator could not be an employee either working in the companies to which the claimant was agreed to be attached for the purposes of the programme or to the workforce in general.  I accept Mr Brodie’s submission.  The claimant has not demonstrated true discrimination in the difference of treatment between himself and a relevant comparator in the context of an arguable breach of convention rights.  In such an absence, no arguable error in law on the part of the tribunal is established on these grounds.  The appendix to the grounds of appeal contains what appear to be three complaints which, in respect of two of them, the claimant is seeking apologies to himself or others and in the other, that the name of the programme should be changed.  However, I am only concerned with whether there is any arguable error in law on the part of the claimant.  

I refuse leave to appeal upon the basis set out above.

					(Signed)
					D J MAY QC
					Commissioner
					Date:  18 October 2007