AB v Secretary of State for Work and Pensions (JSA): [2018] UKUT 43 (AAC) ; [2018] AACR 20
Upper Tribunal Administrative Appeals Chamber decision by Judge Wright on 2 February 2018.
Read the full decision in
Judicial Summary
Reported as [2018] AACR 20
Jobseeker’s Allowance – whether an A4e advisor assisting a claimant under the Work Programme was “an officer of the Department for Work and Pensions” for the purposes of regulation 19(5)(d) of the Claims and Payments Regulations
The claimant made a claim for Jobseekers’ Allowance (JSA) on 17 June 2012 but asked for it to be payable from 9 January 2012, the day after his previous JSA award had ended. The Secretary of State refused to “backdate” the claim to the earlier period. The claimant challenged the decision and explained that he had been offered employment as a taxi driver but this was subject to CRB (criminal records bureau) checks as the work involved driving children to and from school. It was said that his A4e adviser had (wrongly) advised him to stop claiming JSA once he had accepted the offer of the job. The job offer was later withdrawn following the CRB checks. The First-tier Tribunal dismissed the claimant’s appeal and stated that the employment agency, A4e, were not part of the DWP and it was not reasonable for him to have assumed so. The claimant appealed to the Upper Tribunal.
Held, dismissing the appeal, that:
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the test as to whether a person was an ‘officer of the [DWP]’ under regulation 19(5)(d) did not involve whether the claimant reasonably believed or assumed that to be the case; a test of reasonableness is found in regulation 19(4)(b) but that test only applies once the factual circumstance under regulation 19(5)(d) has arisen (paragraph 24);
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the words ‘an officer of the [DWP]’ are words of limitation as it is not any information whosoever its provider that falls within regulation 19(5)(d) and can found the statutory basis for a late claim for benefit (paragraph 26);
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if the Carltona principle (from Carltona Limited v Commissioner of Works [1943] 2 All ER 560) is embodied by regulation 19(5)(d), it can only be on the basis that the duty or power on the Secretary of State (and hence her officials within the DWP) to provide information to claimants arises by way of necessary implication from the duties imposed on the Secretary of State under the Social Security Act 1998 to decide claims for benefit; there is no express statutory power or duty on the Secretary of State to provide information. However, there is nothing in the statutory scheme that vests any statutory decision-making function in external providers such as, here, A4e. The A4e advisor was therefore not an “officer of the [DWP]” because it was no part of the functions delegated to him to make any decision on the appellant’s entitlement to JSA and, by implication, nor was it any part of his delegated functions to provide information to the appellant about the conditions of entitlement to JSA including whether his existing ‘claim’ should remain in payment (paragraphs 36 to 38 and 40 to 43);
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alternatively, even if the duty to provide information to claimants relevant to the conditions of entitlement to a social security benefit arises from the good and fair administration of the social security scheme as a whole (by way of analogy with paragraphs [59]-[65] of R(Reilly and Wilson) v SSWP [2013] UKSC 68; [2014] AC 453; [2014] AACR 9), the responsibility for that scheme and its conditions for entitlement still vests fundamentally with the Secretary of State for Work and Pensions, and nothing in the statutory provisions discussed in relation to A4e’s functions can impliedly, by way of fairness or needs of good administration, vest an information function in relation to the conditions of entitlement of jobseeker’s allowance, or any other social security benefit, in A4e or its employees (paragraphs 39 and 44); and
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further alternatively, even if the approach in CJSA/2232/2012 and/or CJSA/610/1998 is applied, it still leads to the same conclusion that the A4e official was not acting, or to be regarded, as an officer of DWP. The legal background to the A4e official discharging the functions delegated to him under regulation 18 of the 2011 JSA Regulations would plainly be part of the factual circumstances to consider. Other considerations are also relevant. The “My Work Programme Agreement” document entered into by the appellant and A4e said most relevantly that the appellant was expected to “Notify your JCP advisor when you have started work and inform them that you need to sign off benefits”. This pointed to the Jobcentre Plus office as the source of information about benefits
Last updated 31 July 2019 + show all updates
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Decision selected for reporting as [2018] AACR 20
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First published.