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

A claimant may be required to participate in the Work Programme only if the Secretary of State has selected the claimant and written notice complying in substance with regulation 5 of the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 has been given. Adequacy of notice may be assessed by reading the selection notice and later appointment letter together. The statutory question concerns the substance of the information given, rather than whether it appears in one document or two.

A tribunal must give adequate reasons for deciding that it is in the interests of justice to determine an appeal in a party's absence. It must also rationally assess whether alleged misconduct by a work-programme provider, if established, could constitute good reason for non-attendance.

The Secretary of State imposed two jobseeker's allowance sanctions after DH did not attend Work Programme appointments with Ixion on 8 and 23 April 2013. The appointments followed a February 2013 WP05(C) letter sent after the replacement of the earlier 2011 Regulations.

The First-tier Tribunal dismissed both appeals in DH's absence. It found that his allegations of lies, threats, perjury and improper conduct by Ixion did not amount to good reason for non-attendance. A District Tribunal Judge later refused to set aside those decisions.

DH appealed to the Upper Tribunal. The issues were whether the First-tier Tribunal had erred procedurally and in its approach to good reason, and whether the WP05(C) and appointment letters gave valid notice under the 2013 Regulations.

1. The appeals were allowed. The First-tier Tribunal's decisions involved material errors of law. They were set aside and remitted for a fresh oral hearing before a differently constituted tribunal.

2. The First-tier Tribunal did not adequately explain why it was in the interests of justice, under rule 31(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, to decide the appeals in DH's absence. This was material because the tribunal considered that his serious allegations against Ixion required substantiation.

3. The tribunal also failed rationally to direct itself on good reason. It could not simply state that perjury, lies, threats and improper conduct would not constitute good reason even if true. It had to assess whether the allegations were established and, if so, whether they could justify non-attendance.

4. Subject to any factual finding that DH did not receive the documents, the WP05(C) and the appointment letters gave adequate notice. Under regulations 4 and 5 of the Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013, selection by the Secretary of State and compliant written notification are separate requirements. The selection function could not be delegated to the provider, although the notification function could be.

5. Following the approach in SSWP v TJ and others [2015] UKUT 56 (AAC), the notices could be read together and satisfied each requirement in regulation 5(2). Properly construed, the WP05(C) evidenced a fresh selection under regulation 4(1), rather than reliance on the legally ineffective earlier selection under the 2011 Regulations.

6. Repayment of one sanctioned sum did not make either appeal academic. The First-tier Tribunal must determine whether each sanction lawfully applied, since the earlier sanction could affect the duration of the later sanction.

• Upper Tribunal (Administrative Appeals Chamber): allowed DH's appeals, set aside both First-tier Tribunal decisions, and remitted them for a fresh hearing.

• First-tier Tribunal: on 16 August 2013 dismissed DH's appeals against two sanctions. A District Tribunal Judge later refused DH's application to set aside those decisions.