Secretary Of State For Social Security v David

Regulation 13(3) of the Jobseeker's Allowance Regulations 1996 concerns restrictions arising from a claimant's own physical or mental condition. It does not cover an external restraint, such as police detention. The provision operates prospectively through the jobseeker's agreement and cannot retrospectively excuse non-availability. Regulation 55 confirms that construction by providing a separate scheme for short periods of sickness. The court also noted, obiter, the absence of discretion for unforeseen and excusable interruptions to availability and gave procedural guidance to Commissioners deciding points raised on their own initiative.

The respondent had entered a jobseeker's agreement without restricting the days or hours of his availability. He was detained in police custody for 42 hours during the benefit week. The adjudication officer treated him as unavailable for the whole week. The Social Security Appeal Tribunal awarded five-sevenths of the weekly allowance, but the Social Security Commissioner held that detention did not make him unavailable and awarded the full allowance. The Secretary of State appealed. The central issue was whether police detention could be treated as a reasonable restriction under regulation 13(3) of the Jobseeker's Allowance Regulations 1996, retrospectively and without a corresponding restriction in the jobseeker's agreement.

Lord Justice Simon Brown delivered the leading judgment. Lord Justice Thorpe agreed with the result and the further observations, and Lord Justice Jonathan Parker also agreed. The appeal was therefore allowed unanimously.

1. Regulation 13(3) of the Jobseeker's Allowance Regulations 1996 was confined to restrictions reasonable in light of the claimant's personal physical or mental disability. The phrase did not include an external physical constraint imposed by police detention.
2. The regulation operated prospectively and in connection with the completion of the jobseeker's agreement. It did not allow a claimant, after the relevant week, to have non-availability caused by detention retrospectively disregarded. The Commissioner's construction would also make regulation 55, which provides for short periods of sickness, unnecessary.
3. The Commissioner had therefore erred. The appeal should have been decided in favour of the adjudication officer, with the consequence that the claimant was disentitled to the allowance for the whole week. There was no power to award benefit for part of a week.
4. As further guidance, the court stated that a Commissioner deciding an appeal on written representations may raise a point of law independently, but should first alert the parties and give them an opportunity to comment.
5. The court also observed that the scheme's requirement of immediate availability was stringent and that the legislation contained a troubling lacuna for unforeseen and excusable interruptions such as detention. It suggested that the Secretary of State consider conferring a discretion or making ex gratia payments. Those observations were not part of the basis for allowing the appeal.

• Court of Appeal (Civil Division): appeal allowed. [2000] EWCA Civ 330
• Social Security Commissioner: on 19 March 1999, held that the respondent was not unavailable merely because he had been in police custody and awarded the full week's allowance.
• Social Security Appeal Tribunal: on 6 November 1997, held that the respondent was disentitled for two days and entitled to five-sevenths of the weekly allowance.