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

A sanction for failing to apply for employment under Jobseekers Act 1995, section 19(2)(c), requires evidence that an employment officer informed the claimant of a situation which was vacant or about to become vacant, and that the required application related to that situation.

Section 19(2)(c) and (d) overlap but impose distinct statutory conditions. Where paragraph (c) does not apply, the tribunal must separately determine whether there was a reasonable opportunity of employment under paragraph (d), whether the claimant failed to avail himself of it without good reason, and whether procedural fairness requires that the claimant be given an opportunity to address that alternative basis.

The claimant's jobseeker's allowance was reduced by 100% for 13 weeks after he attended a recruitment-agency registration appointment but did not complete the registration form and was asked to leave the session. The Secretary of State made the sanction decision under section 19(2)(c) of the Jobseekers Act 1995.

The First-tier Tribunal dismissed the claimant's appeal. It treated his conduct as a failure to apply for a vacancy without good reason. On appeal, the Secretary of State accepted that the evidence did not establish that an employment officer had informed the claimant of a vacant or impending situation in employment. He nevertheless submitted that the First-tier Tribunal's decision could be upheld under section 19(2)(d).

The issue was whether the error concerning paragraph (c) was immaterial because paragraph (d) could instead sustain the sanction.

1. Appeal allowed. The First-tier Tribunal's decision involved an error of law. It was set aside and remitted for a fresh oral hearing before a differently constituted tribunal.

2. There was insufficient evidence that an employment officer had informed the claimant of a situation in employment which was vacant or about to become vacant, or that the form he was asked to complete concerned such a situation. Section 19(2)(c) of the Jobseekers Act 1995 therefore could not sustain the sanction.

3. The error could not be treated as immaterial by substituting section 19(2)(d). Paragraphs (c) and (d) both require absence of good reason, but they are not coextensive. Paragraph (d) additionally requires a reasonable opportunity of employment. A finding that it was reasonable to ask a claimant to apply does not decide whether the employment opportunity was reasonable.

4. The First-tier Tribunal had made no findings directed to the statutory question under paragraph (d). The evidence that the claimant might have received employer and role details if he had completed the form did not itself establish a reasonable opportunity of employment.

5. It would also likely have been unfair to dismiss the appeal under paragraph (d), when the Secretary of State's decision and the case presented to the First-tier Tribunal relied on paragraph (c). The claimant had not been given an opportunity at a fact-finding hearing to answer the distinct case under paragraph (d). The fresh tribunal was directed to consider paragraph (c) and, if necessary, paragraph (d), without any finding or view as to the eventual result.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal's decision for error of law, and remitted the case for a fresh hearing.
• First-tier Tribunal: on 8 June 2015, dismissed the claimant's appeal against a sanction imposed under section 19(2)(c) of the Jobseekers Act 1995.