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

A tribunal may determine an issue against the party bearing the burden of proof where that party fails, without adequate explanation, to provide evidence reasonably directed by the tribunal. This conclusion does not require a punitive adverse inference. The presumption of regularity is rebuttable and does not prevent a tribunal in its investigatory jurisdiction from requiring strict proof.

Authorisation under regulation 18 of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 need not be written. It is a question of fact, assessed by reference to the legislation’s purpose and the practical evidence. Where a claimant re-complies before a sanction is imposed, regulation 8 limits the sanction to four weeks.

The Secretary of State appealed, with permission, against two decisions of the First-tier Tribunal allowing the claimant’s challenges to jobseeker’s allowance sanctions imposed for missed Work Programme appointments in 2012.

In the first appeal, the First-tier Tribunal held that the Secretary of State had not proved adequate written notification after failing to provide the appointment letter. It also found no proof that the provider had authority to issue it. In the second, it held that the provider’s authority under regulation 18 had not been proved.

The central issues were the proper response to missing evidence, whether authorisation had to be evidenced by a formal letter, and the correct duration of any sanction following re-compliance.

1. The first appeal was dismissed. The First-tier Tribunal was entitled to decide the notification issue against the Secretary of State. Its reasoning did not depend on a punitive adverse inference. The Secretary of State bore the burden of proving that the appointment letter was sufficiently clear, had been given an adequate opportunity to produce it, and failed to do so in time without explanation. The WP08 provided only limited evidence of the letter’s contents.

2. The presumption of regularity could have supported a finding that the letter was effective, but it was rebuttable. In an investigatory jurisdiction involving unrepresented claimants, the First-tier Tribunal could require strict proof. The Secretary of State should generally provide a copy of the appointment letter in an appeal against a missed-appointment sanction. Although the First-tier Tribunal erred by deciding, without proper opportunity or reasoning, that the provider lacked delegated authority, that error was immaterial because the notification ground independently sustained its decision.

3. The second appeal was allowed in part. Regulation 18 of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 did not require authorisation to be in writing. Whether authority existed was a factual question, assessed in light of the statutory purpose and practical considerations. The First-tier Tribunal erred by treating the absence of a formal authorisation letter as determinative and by failing to address the evidence that the provider was acting, and was asserted by the Secretary of State to be acting, with authority.

4. On remaking the decision, the Upper Tribunal found that the relevant subcontractor had been implicitly authorised when the Work Programme contract was finalised, notwithstanding the failure to issue the intended formal letter. Its later change of name did not require fresh authorisation. The claimant had no good cause for missing the appointment.

5. However, the claimant had re-complied before the sanction decision. Under regulation 8, the sanction was therefore four weeks only, from 23 August to 19 September 2013 inclusive. The First-tier Tribunal’s second decision was set aside and replaced accordingly.

• Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeal from the First-tier Tribunal decision of 17 October 2014 was dismissed. His appeal from the First-tier Tribunal decision of 14 September 2015 was allowed in part; that decision was set aside and replaced with a four-week sanction.
• First-tier Tribunal: Allowed the claimant’s appeals against decisions imposing jobseeker’s allowance sanctions.