SSWP v SD (JSA)

A failure to give a jobseeker adequate information before referral to a work-related scheme does not automatically invalidate a subsequent participation notice. The question is whether the failure was material: it must have deprived the individual of an opportunity to make representations that could have produced a different outcome.

Where a tribunal raises a prior-information issue, it must explain why the alleged deficiency could have mattered on the particular facts. Administrative fairness is flexible and depends on the circumstances; it is not a rigid prior-information rule.

The Secretary of State appealed against a First-tier Tribunal decision allowing the claimant's challenge to a two-week jobseeker's allowance sanction. The sanction followed the claimant's non-attendance at a Work Programme appointment on 10 July 2012.

The First-tier Tribunal held that insufficient information had been given before the claimant's referral to the Work Programme, so that the notice requiring participation was invalid. The central issue before the Upper Tribunal was whether that conclusion correctly applied the requirement of administrative fairness, and whether the appointment had in fact been cancelled.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and the Upper Tribunal remade the decision by dismissing the claimant's appeal against the sanction.

2. The First-tier Tribunal had treated the absence of adequate information before referral to the Work Programme as automatically invalidating the participation notice. That was incorrect. Reilly and Wilson [2013] UKSC 68 established that a failure of prior information is capable of vitiating a notice only where it is material. The decisive question is whether the lack of information removed an opportunity to make representations which might have led to a different referral outcome.

3. Having raised prior information as an issue, the First-tier Tribunal had to explain why the alleged deficiency could have made a difference to this claimant. That requirement was especially important because the claimant had not himself complained of inadequate information before referral. The Court of Appeal's observations in Reilly (No 2) and TJ and others [2016] EWCA Civ 413 reinforced that fairness is fact-sensitive and that objections to referral itself will rarely be significant in practice.

4. Remittal would serve no useful purpose, given the claimant's limited engagement and the elapsed time. On the evidence, the claimant did not attend the appointment and had not shown that it was cancelled. The Secretary of State's decision of 29 July 2013 was therefore upheld. Jobseeker's allowance was not payable from 30 July to 12 August 2013.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State's appeal, set aside the First-tier Tribunal decision, and remade the decision by dismissing the claimant's appeal.

• First-tier Tribunal, Sheffield: on 18 November 2014, allowed the claimant's appeal against the Secretary of State's sanction decision of 29 July 2013.