SN v SSWP (JSA)

A claimant fails to participate in mandatory work activity where the claimant breaches a requirement notified under regulation 4 of the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011. The content of a participation requirement depends on a reasonable reading of the notice, assessed on the evidence in the individual case.

A notice need not prescribe every task in minute detail. A placement as a retail assistant, involving supervision and workplace policies, may impliedly require civil and non-offensive conduct and performance of reasonable tasks. Conduct before the notified start may be relevant where it is legitimately connected with the provider’s decision to refuse the placement. A material failure may therefore arise where conduct effectively invites the provider to reject the claimant.

The claimant’s jobseeker’s allowance was sanctioned for 13 weeks after he was removed from a mandatory work activity placement at a Cancer Research shop on 6 June 2011. The Secretary of State decided that he had failed, without good cause, to participate.

The First-tier Tribunal dismissed his appeal. It treated his alleged offensive language and conduct in the shop’s changing area as a failure to participate. The claimant appealed to the Upper Tribunal.

The central issues were whether the First-tier Tribunal had made a material error of law, the meaning of failure to participate under the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011, and whether the claimant’s conduct established such a failure.

1. Appeal allowed on error of law, but the underlying appeal dismissed on remaking. The First-tier Tribunal’s decision was set aside because it did not make clear and adequately reasoned findings about who had used offensive language and towards whom. Its apparent finding that the claimant swore at the Seetec employee lacked evidential support.

2. Under regulations 4 and 6 of the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011, failure to participate means failure to comply with a notified participation requirement. The requirement must be identified by a reasonable reading of the notice. The notice need not specify every task throughout a four-week placement, provided it gives adequate substantive details of what the claimant must do.

3. The Seetec letter adequately notified the claimant that he was to work as a retail assistant at the named shop, at stated times, under supervision, and subject to workplace standards. It necessarily required civil, non-offensive behaviour towards those at the placement and the doing of work reasonably expected of a retail assistant. Mere physical presence without engagement or compliance with reasonable instructions would not suffice.

4. Conduct before the formal start of a placement may be considered if it is legitimately linked to the provider’s refusal to accept the claimant. On the facts found, the claimant had made offensive comments during a prior placement-related visit and, after the notified start time, secluded himself in the changing cubicle, removed his shoes, folded his arms and appeared to sleep. That combination established failure to participate without good cause.

5. The failure to issue a separate MWA 05 letter and the alleged breach of the prior-information requirement caused no material unfairness. The claimant had an opportunity to make representations before the regulation 4 notice, and the Seetec letter gave adequate written notice of the placement and consequences. The Upper Tribunal remade the decision by dismissing the claimant’s appeal against the Secretary of State’s sanction decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal for material error of law, set aside the First-tier Tribunal’s decision, and remade it to the same substantive effect: the claimant’s appeal against the sanction decision was dismissed.
• First-tier Tribunal, Watford: on 28 February 2012 dismissed the claimant’s appeal against the Secretary of State’s decision of 4 July 2011.