SSWP v DM (rule 17) (JSA)

Where the Secretary of State seeks to withdraw an Upper Tribunal appeal and withdrawal gives the respondent all the relief available in that appeal, the Upper Tribunal may consent to withdrawal. The First-tier Tribunal’s decision then remains in force.

The tribunal also emphasised that departmental operational guidance relevant to a claimant’s referral to mandatory work activity should be disclosed to the First-tier Tribunal. Guidance indicating that a referral should not have been made may be capable of establishing good cause for non-participation, even where the claimant did not provide reasons within the prescribed period; however, that point was not decided.

The Secretary of State appealed against a First-tier Tribunal decision of 20 February 2013 which had set aside a 13-week jobseeker’s allowance sanction imposed after the claimant did not participate in mandatory work activity.

The appeal had been stayed pending litigation including R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68. On review after the stay was lifted, the Secretary of State disclosed operational guidance indicating that, because of the claimant’s multiple barriers to employment, he should not have been referred to mandatory work activity other than as part of a structured approach. The Secretary of State therefore sought consent to withdraw the appeal under rule 17(1).

A possible issue concerning the adequacy of the April 2012 notice under regulation 4(2)(d) was left unresolved.

1. The Upper Tribunal consented to the Secretary of State’s withdrawal of the appeal. Withdrawal left undisturbed the First-tier Tribunal’s decision setting aside the 13-week sanction. As the claimant thereby obtained all that he could have achieved as respondent to the Upper Tribunal appeal, it was unnecessary to obtain his views on withdrawal.

2. The Secretary of State’s review disclosed operational guidance stating that mandatory work activity was wholly inappropriate if deployed in isolation or as the first or primary step for a claimant whose lack of focus and discipline had serious underlying causes, or who had serious criminal convictions, unless it formed part of a structured approach to multiple barriers. The Secretary of State accepted that the guidance should have been placed before the First-tier Tribunal under rule 24 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

3. Judge Wright strongly criticised the failure to disclose plainly relevant guidance. He stated that the criticism in NM v SSWP [2016] UKUT 351 (AAC) concerning the withholding of guidance applied equally in this case. The undisclosed guidance indicated that the referral, and thus the sanction decision, ought not to have been made.

4. It was unnecessary to decide whether the claimant had shown good cause within five working days. The judge nevertheless observed that, had the guidance been made public as it should have been, it might itself have established good cause before that period began.

5. The tribunal also left open whether a notice which omitted both a job title and a job description complied with regulation 4(2)(d) of the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011. That issue may remain important in other appeals.

• Upper Tribunal (Administrative Appeals Chamber): consented to the Secretary of State withdrawing the appeal under rule 17(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
• First-tier Tribunal: on 20 February 2013, set aside the Secretary of State’s decision imposing a 13-week jobseeker’s allowance sanction.