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

For backdating under regulation 19 of the Social Security (Claims and Payments) Regulations 1987, the question under regulation 19(5)(d) is whether misleading information was in fact given by an officer of the Department for Work and Pensions. It is not whether the claimant reasonably believed the informant to be such an officer.

An external Work Programme provider’s employee was not an officer of the Department when the statutory scheme gave the provider only limited functions concerning participation notices and did not confer a function of deciding benefit entitlement or giving entitlement advice. Wrong advice by that employee could not satisfy regulation 19(5)(d).

The claimant had stopped claiming jobseeker’s allowance after accepting conditional work as a taxi driver and awaiting criminal-record checks. The First-tier Tribunal found that an A4e adviser wrongly told him to stop claiming, but that the Jobcentre Plus officer had not given him misleading information which caused his delay.

The tribunal dismissed his appeal against refusal to backdate his later claim. On appeal, the Upper Tribunal considered whether the A4e adviser, exercising limited delegated functions under the Work Programme regulations, was an officer of the Department for Work and Pensions for regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no material error of law and was not set aside.

2. Regulation 19(5)(d) requires a factual inquiry: whether the claimant was given the relevant information by an officer of the Department for Work and Pensions. The reasonableness requirement in regulation 19(4)(b) applies only after one of the circumstances in regulation 19(5) has arisen. It cannot convert the identity of the information giver into a question whether the claimant reasonably thought that person was an officer.

3. The A4e adviser was not such an officer when giving erroneous advice about continued entitlement to jobseeker’s allowance. The delegated functions under regulation 18 of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 concerned notices about participation in the Work Programme, its requirements and its end. They did not confer on A4e or its employees a function to decide entitlement to jobseeker’s allowance, sanctions, backdating or the continuation of a claim.

4. The Carltona principle did not alter that conclusion. Whether the source of a duty to give correct benefit information was the Secretary of State’s decision-making functions or the fair administration of the social-security scheme, the limited functions entrusted to A4e were too ancillary to benefit entitlement to make its adviser an officer of the Department for this purpose.

5. The tribunal’s use of “normally” when describing the Jobcentre officer’s advice caused no material error. Read with its findings as a whole, it meant that a person awaiting work would usually cease looking for other work; the claimant could have remained entitled if available for and actively seeking work.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the claimant’s appeal and upheld the First-tier Tribunal’s decision: [2018] UKUT 43 (AAC).
• First-tier Tribunal: sitting at Southampton, dismissed the appeal against refusal to backdate jobseeker’s allowance on 17 October 2012, reference SC203/12/01734.