MH v Secretary of State for Work and Pensions (JSA)

A claimant may be sanctioned for failure to participate in the Work Programme only where there has been a lawful selection for the scheme and written notification which, in substance, meets the requirements of the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013.

Written material may be read together. The question is whether it informs the claimant in substance of the participation requirements, rather than whether every matter appears in a single notice. A replacement notice issued after the earlier regulations were quashed may evidence a fresh selection under the 2013 Regulations. Where an earlier sanction is removed, the duration of a later escalating sanction must be recalculated under the applicable sanction provision.

The appellant challenged two First-tier Tribunal decisions which had upheld sanctions on his jobseeker's allowance for failures to participate in the Work Programme.

The first sanction followed a mandatory activity notice issued on 12 February 2013, after the earlier 2011 Regulations had been quashed but before the 2013 Regulations came into force that evening. The Secretary of State conceded that the provider's authority to issue that notice had been withdrawn.

The second sanction concerned a notice issued on 4 March 2013 under the 2013 Regulations. The issues were whether the appellant had been lawfully selected and notified to participate, and the resulting duration of the sanction.

1. Appeals allowed. The First-tier Tribunal decisions contained material errors of law and were set aside. The Upper Tribunal remade both decisions.
2. There was no lawful basis for the mandatory activity notice issued on 12 February 2013. The Secretary of State had withdrawn providers' delegated authority to issue such notices after the earlier Regulations were quashed and before the 2013 Regulations came into force. The appellant therefore could not fail a requirement in that notice, and no sanction was payable for the first period.
3. For the second appeal, the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 required both selection by the Secretary of State under regulation 4(1) and a compliant written notice under regulation 5(2). Selection could not be delegated, but the notification function could be delegated to an authorised provider.
4. The WP05(C) letter was properly construed as a fresh selection notice under the 2013 Regulations. Read with the appointment letter of 4 March 2013, it gave adequate written notice in substance of each requirement in regulation 5(2), including mandatory participation, the start of participation, the activities required, the duration of the requirement, and the consequences of non-participation. The Upper Tribunal followed the approach in SSWP v TJ and others [2015] UKUT 56 (AAC) that the requisite information may appear in more than one written notice.
5. The appellant had no good reason for failing to attend the 11 March appointment. However, because the first sanction was invalid, regulation 69A(1) reduced the second sanction from 13 weeks to four weeks. The Upper Tribunal had no power to award costs in this social-security appeal.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appellant's appeals, set aside the First-tier Tribunal decisions of 29 October 2013, and remade the decisions.
• First-tier Tribunal: Dismissed the appellant's appeals against the two sanction decisions.