Secretary of State for Work and Pensions v DC (JSA): [2017] UKUT 464 (AAC) ; [2018] AACR 16
Upper Tribunal Administrative Appeals Chamber decision by Judge Rowland on 27 November 2017.
Read the full decision in
Judicial Summary
Reported as [2018] AACR 16
Tribunal procedure and practice – evidence – presumption of regularity – party failing to comply with direction to provide document – whether tribunal entitled to conclude that burden of proof was not satisfied Employment, Skills and Enterprise Scheme – whether authorisation of provider to issue notices must be in writing
The claimant failed to attend two work programme appointments (in June and August 2012) under the Employment, Skills and Enterprise scheme. The Secretary of State imposed 26-week sanctions in respect of each of the missed appointments. The claimant appealed against those decisions, stating that he was not aware of the appointments. In response to the first appeal (relating to the August appointment), the Secretary of State said that the claimant was given a notice of the appointment by hand. In response to the second appeal (relating to the June appointment), notification was by first class post. In both cases, the notice was provided by Interserve Working Futures Ltd (“Interserve”), a “provider” under the scheme. In the first appeal, the First-tier Tribunal Judge directed the Secretary of State to provide copies of all notices issued to the claimant. In the second appeal, the Judge directed a submission from the Secretary of State to confirm Interserve was a provider authorised to issue notices under the scheme. The Secretary of State did not provide copies of the notices within the time allowed. The Secretary of State confirmed that Interserve was an authorised provider, but could only provide a 2013 authorisation letter in support. The First-tier Tribunal allowed both appeals. In the first appeal, it decided that the Secretary of State had not established that the claimant had been adequately notified of the August appointment, and in the second appeal, that he had failed to establish that Interserve had the relevant authority to issue notices. The Secretary of State appealed to the Upper Tribunal, relying on the presumption of regularity to support the contention that the claimant had adequate notification and that the First-tier Tribunal erred on the authority issue.
Held, dismissing the first appeal and allowing the second appeal in part, that:
1. where, on appeal, the First-tier Tribunal directs the party who bears the burden of proof in respect of a particular matter to provide evidence as regards that matter and that party fails to provide the evidence within the time allowed, the First-tier Tribunal is entitled to consider the investigation of that matter to be at an end and, if there is no other evidence on the point, to the determine the issue against the offending party simply on the ground that that party has failed to prove its case (paragraph 29);
2. the presumption of regularity is a rebuttable presumption and, as it is not unknown for documents to be issued in an unapproved form or in a form that is not reasonably intelligible to an uninitiated recipient, the First-tier Tribunal may require strict proof of a matter so that, in the first appeal, the Secretary of State had to bear the consequence of having failed to comply with the direction or to provide a satisfactory explanation for not doing so (paragraphs 32, 33 and 37);
3. whether there had been authorisation to issue notices was a question of fact and degree (Tanks & Drums Ltd v Transport and General Workers’ Union [1992] ICR 1) and, as regulation 18 of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 did not require authorisation to be in writing, the absence of a formal letter of authorisation was not determinative. Authority may be found to exist on the basis of evidence as to the conduct of those concerned, including what they have said and written over a period of time, and the First-tier Tribunal erred in law in failing to give adequate reasons for finding that Interserve had not been authorised to issue the notice of appointment (paragraphs 46 to 50).
In the second appeal, the Upper Tribunal substituted its own decision for that of the First-tier Tribunal, finding that Interserve had been authorised to issue notices but that the sanction imposed should have been for 4 weeks, rather than for 26, because the claimant had “re-complied” before it was imposed.
Last updated 15 January 2019 + show all updates
-
Decision selected for reporting as [2018] AACR 16
-
First published.