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

A claimant must be given sufficient information before referral to a work-for-benefit scheme to make representations about its suitability. That duty of administrative fairness includes disclosure of a relevant departmental policy which may affect the referral.

A breach does not automatically invalidate a referral or sanction. The question is whether it was material and whether fairness requires the decision to be set aside. Where binding departmental guidance stated that a claimant already undertaking voluntary work must not be referred, the claimant should not have been referred and had good reason not to participate. A sanction for non-participation could not stand.

The appellant received jobseeker’s allowance and had long undertaken voluntary work in charity shops. He was referred to the Mandatory Work Activity Scheme and was later sanctioned for 13 weeks for failing, without good reason, to participate.

The First-tier Tribunal dismissed his appeal. On further appeal, it emerged that the Secretary of State’s contemporaneous Mandatory Work Activity guidance stated that claimants currently working, whether paid or voluntary, must not be considered for referral. The guidance had not been provided to the appellant or the First-tier Tribunal.

The central issue was whether that omission rendered the referral and resulting sanction ineffective in the appellant’s case.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside, and the Upper Tribunal substituted the decision that the Secretary of State’s sanction decision should be set aside.

2. The common-law duty of administrative fairness required the Secretary of State to give the claimant sufficient prior information about the scheme to permit representations about its suitability. The duty extended to a departmental policy relevant to whether the claimant should be referred. The governing approach in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68 was that a failure of prior information invalidates action only where material injustice results.

3. The applicable guidance expressly said that a claimant already working voluntarily must not be considered for referral. Had proper regard been had to it, the appellant ought not to have been referred to Mandatory Work Activity. Having been wrongly referred, he had good reason for not participating. The omission was therefore material and the sanction could not stand.

4. The Secretary of State also breached rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 by failing to provide the relevant guidance to the First-tier Tribunal. That omission caused the tribunal’s material error of law.

5. It was unnecessary to decide whether a selection or requirement to participate is independently appealable before a sanction decision. The judge nevertheless observed that, on a sanction appeal, the First-tier Tribunal must assess whether the claimant was properly referred under relevant guidance and had good reason not to participate. A complaint to the Independent Case Examiner cannot determine social-security entitlement or payability.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal in [2016] UKUT 351 (AAC), set aside the First-tier Tribunal’s decision, and substituted a decision setting aside the sanction.
• First-tier Tribunal: Sitting at Havant on 29 May 2014, it determined the appellant’s appeal from the Secretary of State’s sanction decision. Its decision was set aside for material error of law.
• Secretary of State: On 17 October 2013 imposed a 13-week sanction for alleged failure without good reason to participate in Mandatory Work Activity.