Ferguson v Secretary of State for Work and Pensions

Where a failure to attend or to provide a required declaration triggers cessation of jobseeker’s allowance, the cessation event and the effective date of cessation are distinct matters. Under Jobseeker's Allowance Regulations 1996, regulation 25 identifies the triggering events. Regulation 26 fixes the earlier effective date and may terminate entitlement from the day after the last day for which the claimant supplied information or evidence demonstrating continuing entitlement.

A signed declaration can be evidence for regulation 26(a). Regulations 26(b) and (c) retain practical operation in appropriate cases. The fair construction is not affected by a presumption favouring either claimant or Secretary of State.

The claimant had been receiving jobseeker’s allowance (JSA). He failed to attend and sign the required declaration on 1 June 1999, then next attended on 14 June. He accepted that he was not entitled to JSA from 1 to 13 June, but disputed the earlier date from which entitlement ceased.

A Social Security Commissioner allowed his appeal from an Appeal Tribunal in part. The Commissioner held that entitlement ceased on 1 June rather than at an earlier date. The Secretary of State appealed, with permission, contending that regulation 26(a) of the Jobseeker's Allowance Regulations 1996 fixed an earlier cessation date. The central issue was the proper relationship between the cessation events in regulation 25 and the timing rules in regulation 26.

1. Appeal allowed unanimously. Lady Justice Arden gave the judgment, with Lord Justice Keene and Lord Justice May agreeing. The Commissioner’s construction was wrong. The court declared that the claimant was not entitled to JSA from 19 May to 13 June 1999 inclusive.

2. Section 8 of the Jobseekers Act 1995 distinguishes the circumstances in which entitlement ceases from the time at which cessation takes effect. That distinction is carried into the Jobseeker's Allowance Regulations 1996. Regulation 25 identifies cessation events; regulation 26 fixes the effective date. Regulation 26(a) is directed to the factual date after the last day for which the claimant provided material showing continuing entitlement. It does not itself create a further cessation event.

3. Regulation 26(a) did not deprive regulations 26(b) and (c) of content. A claimant may fail to attend yet later provide satisfactory evidence of entitlement, so that a different timing provision operates. Regulation 26(c) was not confined to postal claimants and could also apply where a claimant attended but failed to sign a required declaration.

4. A declaration was capable of being evidence within regulation 26(a), and could show continuing entitlement within the limits of its contents. The distinction drawn in regulation 24 between information, evidence and declarations did not require a declaration to be excluded from regulation 26(a).

5. The absence from regulation 25 of a cessation event for failure to provide information or evidence under regulation 24(5) did not create a material gap. The Social Security and Child Support (Decisions and Appeals) Regulations 1999 provided separate machinery for suspension, requirements for information, and termination following non-compliance. The five-working-day good-cause provisions in regulations 27 and 28 also mitigated the consequences of non-attendance.

6. Applying regulation 26(a), entitlement ceased from 19 May 1999, so that no JSA was payable for that day. The formal declaration, rather than the apparent date error in the reasoning, governed the order.

• Court of Appeal (Civil Division) — in [2003] EWCA Civ 536, allowed the Secretary of State’s appeal and substituted the effective cessation date reflected in its declaration.

• Social Security Commissioner — Commissioner Williams, on 29 July 2002, allowed the claimant’s appeal from the Appeal Tribunal in part and held that entitlement ceased on 1 June 1999.

• Appeal Tribunal — held that the claimant was not entitled to JSA from 19 May to 13 June 1999.