JAMES RYDQVIST v SECRETARY OF STATE FOR WORK AND PENSIONS [2002] EWCA Civ 947

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY
AND CHILD SUPPORT COMMISSIONERS
(Commissioner Levenson)
[2002] EWCA Civ 947Case No A1/2002/0933Venue Royal Courts of Justice, Strand, London WC2, Monday, 24th June 2002
Between
JAMES RYDQVISTClaimant/AppellantSECRETARY OF STATE FOR WORK AND PENSIONSDefendant/Respondent
Before
Lord Justice Peter GibsonLord Justice ChadwickMr Justice NelsonMISS CATHERINE O'DONNELL (Instructed by Sternberg Reed Taylor & Gill, Focal House, 12/18 Station Parade, Barking, Essex IG11 8DN)appeared on behalf of the Appellant.MR JEREMY JOHNSON (Instructed by Solicitor to the Department of Work and Pensions, Quarry House, Quarry Hill, Leeds LS2 7UB)appeared on behalf of the Respondent.Date 24 June 2002
[1]Monday, 24th June 2002 LORD JUSTICE PETER GIBSON: This appeal raises a short point on the Social Security Adjudication Regulations 1995 ("the Regulations"): where an appellant appealing to a Social Security Appeal Tribunal ("the Tribunal") has given written notice that he is withdrawing his appeal, does the Tribunal have jurisdiction to proceed with the hearing of the appeal? The Social Security Commissioner on a further appeal to him by the appellant held that the Tribunal did not have jurisdiction and refused permission to appeal. The appellant now appeals to this court with the permission of Brooke LJ.[2]The appellant, James Rydqvist, is an accountant who had the misfortune in 1984 to suffer a stroke when he was in his early forties. He received an award of income support from 24th March 1992. The award included an element to cover interest on the whole of his mortgage. When Jobseeker's Allowance ("JSA") was introduced on 7th October 1996 an award of JSA was made. It is a requirement of entitlement to JSA that the claimant of JSA must enter into a Jobseeker's Agreement. Mr Rydqvist signed a Jobseeker's Agreement on 11th November 1996. On the same day he signed form ES 2, which included a question:
"What is the lowest wage you are willing to accept?"
He answered by inserting the figure "£18,000". Also that day he completed and signed another form in which he explained why £18,000 was the minimum amount he required.[3]On 6th January 1997 Mr Rydqvist was interviewed and signed a statement acknowledging that it had been explained to him that the wage he was seeking might affect his entitlement to JSA. Regulation 9 of the Jobseeker's Allowance Regulations 1996 provides that a person may not restrict his availability for employment by placing restrictions on the level of remuneration in employment for which he is available after the expiry of the period of months beginning with the date of claim.[4]The matter was referred to an adjudication officer who by a decision notified to Mr Rydqvist on 16th January 1997 decided that Mr Rydqvist was not available for employment from 11th November 1996 and not entitled to JSA from that date. Mr Rydqvist on 3rd February 1997 appealed against the adjudication officer's decision to the Tribunal. On 13th February 1997, however, Mr Rydqvist's solicitors wrote a letter to the Employment Service, saying:
"Our client wishes to withdraw his appeal and withdraw any restrictions he may have seemed to have placed on his availability for work."
[5]The solicitors explained that the staff at the Romford Employment Service had asked the appellant what salary he wanted to work for, and he had given an indicative figure. The solicitors asked that JSA be reinstated from the date of suspension. The letter was copied to the Independent Tribunal Service. The Clerk to the Tribunal on 24th February 1997 wrote to Mr Rydqvist and to the adjudication officer, saying that the withdrawal of the appeal had been agreed to and that no further action would be taken. The terms of that letter referred to the need for the consent of the adjudication officer to be obtained. That was appropriate only to an earlier version of Regulation 6. Under Regulation 6 then in force, that consent was not required. It was open to the adjudication officer to oppose a withdrawal, but no notice of opposition was given. On 5th March 1997 the request for reinstatement of JSA was refused.[6]Mr Rydqvist was notified in advance of the appeal hearing, and the adjudication officer in his written submissions expressly referred to the withdrawal of the appeal but, nevertheless, dealt with the substantive point raised by the appeal. The appeal was heard on 4th December 1997. Mr Rydqvist and a presenting officer attended the appeal hearing. The Tribunal confirmed the adjudication officer's decision in respect of Mr Rydqvist's claim for JSA from 11th November 1996, but only until 12th February 1997. It found on the evidence before it that Mr Rydqvist had intended to impose restrictions and that that contravened regulation 9 of the Jobseeker's Allowance Regulations. Neither in the decision notice written in manuscript by the Chairman and dated 4th December 1997, nor in the typewritten statement of material facts and reasons for the Tribunal's decision dated 4th April 1998, does the Tribunal expressly advert to the fact that the appeal had been withdrawn, although in the statement reference is made to the letter of 13th February 1997 as indicating the acceptance by Mr Rydqvist's solicitors that the £18,000 wage limit restriction was withdrawn.[7]Mr Rydqvist appealed against the Tribunal's decision, and that was heard by Mr Commissioner Levenson. Mr Rydqvist appeared in person at the oral hearing. In his reserved decision the Commissioner records that he was told by Mr Rydqvist that at the hearing before the Tribunal the presenting officer agreed to the Tribunal hearing the appeal. The Commissioner held that the decision of the Tribunal was made without jurisdiction. He said that Mr Rydqvist through his solicitors gave an effective notice of intention to withdraw the appeal and that there was no provision for a withdrawn appeal to be reinstated. He pointed out that leave could have been sought for a late appeal but that no application was made. He indicated that had he had jurisdiction, he would have allowed the appeal on the basis that it was improper for the Employment Service to insist that a claimant specify in advance a level of remuneration and that there was no evidence that Mr Rydqvist was imposing a restriction on the level of remuneration in employment for which he was available. It is not clear how the Commissioner thought that he could have reversed the finding of fact made by the Tribunal, given the limited jurisdiction which the Commissioner had.[8]Before us Miss O'Donnell for Mr Rydqvist submitted that the Commissioner erred in law in two respects:(1) in finding that the Tribunal had no jurisdiction to determine the appeal on 4th December 1997 and that the notice given in letter of 13th February 1997 by the appellant's solicitors to withdraw the appeal was effected;(2) in failing to apply the guidelines set out by this court in R v The Home Secretary ex parte Jeyeanthan [2000] 1 WLR 351. She says that had the Commissioner applied the guidelines, he would have found that the Tribunal did have jurisdiction to hear the appeal. She in particular relies on the fact that there was power for the Tribunal to allow a late appeal.[9]Mr Johnson for the respondent Secretary of State submits that the Commissioner was plainly right to reach the conclusion which he did. He says that once the appeal had been withdrawn there was nothing for the Tribunal to decide. He submits that Jeyeanthan is distinguishable, the guidelines there relating to procedural irregularities rather than to matters which go to jurisdiction.[10]It is not in dispute that an appeal lies from the decision of an adjudication officer to the Tribunal on both fact and law, but that by section 14(1) of the Social Security Act 1998 an appeal lies from the Tribunal to the Commissioner only on the ground that the Tribunal's decision was erroneous in point of law and that by section 15(1) of that Act an appeal to this court from the Commissioner is only on a question of law.[11]I start with the legislative provisions governing the points in issue. By section 22 of the Social Security Administration Act 1992, so far as relevant:
"(1) ... where the adjudication officer has decided a claim or question other than a claim or question relating to an attendance allowance, a disability living allowance or a disability working allowance- (a) if it relates to statutory sick pay or statutory maternity pay, the employee and employer concerned shall each have a right to appeal to a social security appeal tribunal; and (b)in any other case the claimant shall have a right to do so." (I interpose the comment that it is section 22(1)(b) that is relevant in the present case.) (4)Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought."
[12]The 1995 Regulations were made pursuant to (amongst other empowering provisions) section 22(4). Regulation 2(1) confers powers on the Chairman of the Tribunal to determine the procedure before the Tribunal on a determination, and by regulation 2(1)(a) the Chairman has the power to give directions requiring any party to the proceedings to comply with any provision of the Regulations.[13]Regulation 3 dealt with (amongst other things) time limits. By regulation 3(3) of, and paragraph 4 of Schedule 2 to, the 1995 Regulations, an appeal to the Tribunal from a decision of an adjudication officer has to be brought within three months, beginning with the date when notice in writing of the decision was given to the appellant. Regulation 3(3) allows for the extension of the time limit for an appeal, provided that the conditions set out in paragraphs (3A) to (3E) are satisfied. Those conditions are stringent. Those paragraphs include the following:
"(3A) Where the time specified for the making of an appeal has already expired, an application for an extension of time for making an appeal shall not be granted unless the applicant has satisfied the person considering the application that- (a)if the application is granted there are reasonable prospects that such an appeal will be successful; and (b)it is in the interests of justice that the application be granted. (3B)For the purposes of paragraph (3A) it shall not be considered to be in the interests of justice to grant an application unless the person considering the application is satisfied that- (a)special reasons exist, which are wholly exceptional and which relate to the history or facts of the case; and (b)such special reasons have existed throughout the period beginning with the day following the expiration of the time specified by Schedule 2 for the making of an appeal and ending with the day on which the application for an extension of time is made; and (c)such special reasons manifestly constitute a reasonable excuse of compelling weight for the applicant's failure to make an appeal within the time specified. ... . (3D) In determining whether facts constitute special reasons for granting an application for an extension of time for making an appeal under paragraph (3) no account shall be taken of the following- (a) that the applicant or anyone acting for him or advising him was unaware of or misunderstood the law applicable to his case (including ignorance or misunderstanding of any time limits imposed by Schedule 2); (b)that a Commissioner or a court has taken a different view of the law from that previously understood and applied."
[14]Regulation 3(5) prescribes what an appeal must contain. It includes, in the case of an application under paragraph 3 for an extension of time in which to appeal, certain factual matters, together with particulars of the special reasons on which the application is based.[15]Regulation 6 governs the withdrawal of appeals. The material provisions of that regulation are as follows:
"(2) Any appeal to an adjudicating authority made under the Administration Act or these Regulations may be withdrawn by the person who made the appeal- (a)before the hearing begins, providing that, in the case of a tribunal or board, the clerk to the tribunal has not received any notice under paragraph (2A), by giving written notice of intention to withdraw to the adjudicating authority to whom the appeal was made and with the consent in writing to any other party to the proceedings other than- (i)in a case which originated in a decision of an adjudication officer, an adjudication officer; (ii)in any other case, the Secretary of State; or (b)after the hearing has begun, with the leave of the adjudicating authority or, in the case of a tribunal or board, its chairman, at any time before the determination is made. (2A) An appeal to a tribunal or board shall not be withdrawn under sub-paragraph (a) or paragraph (2) if the clerk to the tribunal has previously received notice opposing a withdrawal of such appeal from- (a)in a case which originated in a decision of an adjudication officer, an adjudication officer; or (b) in any other case, the Secretary of State."
[16]Where, as here, the appeal was against an adjudication officer's decision, there was no other party to the proceedings and regulation 6(2)(a) was inapplicable. An appeal, however, could not be withdrawn if notice opposing the withdrawal of the appeal had previously been received by the Clerk to the Tribunal from an adjudication officer. No such notice was given. Therefore no further condition needed to be satisfied for the withdrawal to be effective. In contrast, had the appeal hearing already begun, the leave of the Chairman would have been needed. The communication to the parties by the Clerk to the Tribunal that the appeal had been withdrawn was not made pursuant to any requirement of the Regulations. The Regulations contained no provision for the reinstatement of an appeal. This is in contrast to regulation 20(3) of the Social Security Commissioner Procedure Regulations 1987, which allows a Commissioner to reinstate any withdrawn appeal on application.[17]I shall consider each of Miss O'Donnell's submissions in turn. (1) Effective withdrawal[18]There is no indication in the Tribunal's decision or statement of material facts and reasons that the Tribunal did find as a fact that the withdrawal of the appeal by the solicitors for Mr Rydqvist was not effective. The Tribunal simply did not address the point. The reason may well lie in what Mr Rydqvist told the Commissioner, that the presenting officer agreed to the Tribunal hearing the appeal. But the presenting officer could not confer jurisdiction on the Tribunal if it had no jurisdiction to entertain the appeal. It does not appear to have occurred to anybody at the Tribunal hearing that the Tribunal might have no jurisdiction as a result of the withdrawal. The fact that there were matters in dispute between Mr Rydqvist and the adjudication officer did not in my judgment allow the Tribunal to resolve that dispute unless there was an extant appeal before it. The correctness of the submission by Miss O'Donnell that the withdrawal of the appeal was equivocal or conditional on the reinstatement of JSA must be determined as a matter of construction of the letter of withdrawal. In my judgment the terms of that letter are unequivocal and unconditional. There is nothing in the language of the letter of 13th February 1997 which lends any support to Miss O'Donnell's submission. In my judgment the Commissioner was plainly right to hold that the withdrawal was an effective withdrawal, and I therefore have no hesitation in rejecting Miss O'Donnell's first submission. (2) Jeyeanthan[19]Miss O'Donnell's second submission is based on a combination of the remarks by Lord Woolf MR (with whom Judge LJ and May LJ agreed) in Jeyeanthan and the possibility that Mr Rydqvist might have applied to appeal out of time from the adjudication officer's decision, and that the Tribunal might thereby have had jurisdiction to deal with that application and the appeal consequent thereon.[20]In the Jeyeanthan case this court was concerned with the question of the effect of non-compliance with a procedural requirement of rules made by Statutory Instrument. Applications for leave to appeal had been made by letter containing no declaration of truth, rather than by the prescribed form which contained a declaration of truth. This court suggested that it should be asked:(1) whether the procedural requirement was fulfilled by substantial compliance with it, and whether in fact there had been substantial compliance, even if not strict compliance;(2) whether the non-compliance was capable of being waived and, if so, whether it could or should be waved; and (3)if there was no waiver, what the consequence was of the non-compliance.[21]It was held that there was no substantial compliance with the requirement of the rule insofar as a statement of truth was omitted from the letter constituting the application. But the requirement as to the form of the application created merely an irregularity when not complied with, and that had been waived by the other party and could have been cured by the exercise of a power in the rules.[22]Particular reliance was placed by Miss O'Donnell on what the Master of the Rolls said at page 359. He said this:
"A far from straightforward situation is where there is a need for permission to appeal to a tribunal but this is not appreciated at the time. The requirement is mandatory in the sense that the tribunal or the party against whom the appeal was being brought would have been entitled to object to the appeal proceeding without permission and if they had done so the appeal would not have been accepted. However, what is the position if because they were unaware of the existence of the requirement no objection is made and the appeal is heard and allowed? Is the appellant, when the mistake is learnt of, to be deprived of the benefits of the appeal? If the answer is yes the result could be very unjust. This would be especially so, if in fact the tribunal in error had told the appellant that permission is not needed and he would have been in time to make the application if he had not been misinformed. Could it have been the intention of the author of the requirement that the requirement should have the effect of depriving the appellant of the benefit of his appeal? Clearly not. In such a situation non-compliance would almost inevitably be regarded as being without significance. It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation."
[23]Miss O'Donnell submits that the present position is analogous to that considered by the Master of the Rolls. Mr Rydqvist, she says, did not launch an application for a second appeal because he did not know until the Commissioner's decision that the first appeal did not lie to the Tribunal because of the withdrawal of the appeal. Mr Rydqvist therefore did not appeal until he was aware of that fact. She submits that that has caused an injustice. The Tribunal proceeded with the appeal. The Tribunal could have given him leave to bring a second appeal out of time, treating the facts which had to be presented to the Tribunal as being those on which he relied in his first appeal, and, to the extent that Mr Rydqvist needed to provide the Tribunal with further information to comply with the requirements of regulation 3(3), the Chairman could have directed him to provide that information. She submits, therefore, that what has occurred in the present case is only a procedural irregularity which could have been cured by the Tribunal and that the Commissioner erred in not recognising that fact.[24]I am afraid that I am not able to accept this argument, ingenious though it is. I say at once that this argument was never advanced to the Commissioner, not surprisingly, as Mr Rydqvist appeared in person and is not a lawyer.[25]I do not accept that what was said in Jeyeanthan has any application to the circumstances of the present case. This court's decision in the Jeyeanthan case was directed to what were plain procedural irregularities, as distinct from any lack of jurisdiction. In the present case the withdrawal of the appeal left the Tribunal without jurisdiction unless there was an application for an extension of time to make a second appeal. That application would have had to comply with the stringent requirements of regulation 3. No such application has at any time been made. Further, Parliament in providing in section 22(4) for regulations to make provision as to the time within which appeals are to be brought must be taken to have authorised those strict requirements which have to be satisfied if an application to appeal out of time is to be allowed. There is simply no material before us which directly addresses those requirements. Nor could the Tribunal have allowed the application, had one been made, without being satisfied as to the particular matters which are stipulated in the regulation. It is true that in Jeyeanthan at page 359, in the passage cited, Lord Woolf appears to express himself very widely, indeed far more widely than the matters calling for decision in that case. His observations are therefore obiter, and if and to the extent that he was suggesting that the court's approach to requirements which go to jurisdiction may be governed by his general observations, attaching importance as they do to such matters as the consent of the other parties, there may be difficulty in reconciling those observations with well-established law binding on this court.[26]Our attention has been drawn to Essex County Council v Essex Incorporated Church Union [1963] AC 808. In that case a question which arose was whether the Lands Tribunal had jurisdiction, with the consent of the parties, to deal with an issue in dispute between them, the Lands Tribunal lacking jurisdiction. Lord Reid, with whom Lord Jenkins and Lord Hodson agreed, said at page 820:
"...it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction."
[27]Accordingly, in my judgment, there being no extant appeal and no application to the Tribunal for an extension of time in which to appeal, I would hold that the Tribunal lacked jurisdiction to make any decision and that the Jeyeanthan case does not avail Mr Rydqvist. I must therefore reject Miss O'Donnell's second submission.[28]For these reasons, which owe much to the helpful skeleton argument of the respondent, I, for my part, would dismiss this appeal.

LORD JUSTICE CHADWICK: I agree that this appeal should be dismissed. But in the circumstances that the Commissioner thought it appropriate to indicate, in the final paragraph of his decision of 31st October 2001, that he would have found in favour of the appellant had he had jurisdiction to determine the substantive issue, I think it right to add some observations of my own. I do so lest, encouraged by the Commissioner's comments, the appellant should think that he has been the victim of some injustice which this court is unwilling to remedy.

[30]Entitlement to Jobseeker's Allowance is conferred by section 1 of the Jobseekers Act 1995. Section 1(2) of that Act provides that a claimant is entitled to jobseeker's allowance if he satisfies certain conditions. Paragraph (a) of that subsection requires that he be available for employment. A person is available for employment for the purposes of the 1995 Act if he is willing and able to take up immediately any employed earner's employment (see section 6(1) of that Act). The circumstances in which a person is, or is not, to be treated as available for employment may be prescribed by regulations (see section 6(2) and, in particular, sections 6(4) and 6(5)).[31]Regulation 9 of the Jobseeker's Allowance Regulations 1996 (SI96/207), as in force at the relevant time, provided that, after the expiry of a six-month period beginning with the date of the claim, a person may not restrict his availability for employment by placing restrictions on the level of remuneration in employment for which he is available. If he does so restrict his availability for employment, he is treated as not available for employment and the condition in section 1(2)(a) of the 1995 Act is not satisfied.[32]The appellant had been awarded income support on 26th March 1992. It has not been in dispute that that date was "the date of the claim" for the purposes of regulation 9 of the 1996 Regulations. It follows that at the date when he applied for Jobseeker's Allowance - that is to say, on 11th November 1996 - the six-month period from the date of the claim had already long since expired; and that, if he were to place any restriction on the level of remuneration in employment for which he was available, regulation 9 of the 1996 Regulations would have the effect that he would be treated as not available for employment and so not entitled to the allowance. Nevertheless, he was encouraged to, or was content to, complete an application form, UB 589 Version 1/93, in which in answer to question 16, "What is the lowest wage you are willing to accept?", he specified "£18,000 per year". He gave an explanation for that restriction which is in these terms:
"£18,000 is the minimum amount as my mortgage is in the region of £8,000. ... Because I have been a Financial Controller and have had fairly senior positions in companies, employers would imagine I did not earn these positions if I were to ask for something less than £18,000 per annum."
[33]On 6th January 1997 he signed a form ES 2 (attachment) acknowledging that it had been explained to him that the restriction might affect his entitlement to jobseeker's allowance.[34]That form (ES 2 attachment) is used in circumstances where the claim is regarded as not straightforward. The application was referred to an adjudication officer who, on 16th January 1997, determined that the appellant's application be disallowed for the reason that his minimum wage restriction had the effect that he must be treated as not available for employment.[35]Mr Rydqvist appealed on the same day to the Social Security Appeal Tribunal at Hornchurch. In setting out the reasons why he disagreed with the decision of the adjudication officer, he said this:
"Although I have stated my expectation seeking work for £18,000 per annum to cover my basic needs and to cover going to the City and West End, I have applied for local appointments for £15,000 to £16,000 per annum. It is my experience that for £15,000 to £16,000 p.a. the Employers regard my age and experience as being too over qualified for those positions. For my age and experience I do not think I have been excessive in seeking £18,000 per annum. I am enclosing my CV to be taken into consideration."
[36]On 13th February 1997 solicitors instructed on the appellant's behalf wrote to the Employment Service withdrawing that appeal and withdrawing also "any restrictions he may have placed on his availability for work." The letter contained this paragraph:
"We are instructed by Mr Rydqvist that staff at the Romford employment service asked him what salary he wanted to work for. He replied giving a figure which would enable him to cover his outgoings. It was indicative only and not meant as placing a lower limit beneath which he would not accept work."
[37]Notwithstanding the withdrawal of the appeal by the letter dated 13th February 1997 - and in circumstances which have been described in correspondence as the result of an administrative error - the appeal was listed for hearing on 4th December 1997.[38]For the reasons given by Peter Gibson LJ, with which I agree, I take the view that the Commissioner was right to hold that the Appeal Tribunal was without jurisdiction to hear, in December 1997, an appeal which had been withdrawn in February of that year. The Tribunal should have declined to entertain that appeal. In particular, I agree with my Lord's comments in relation to the observations made obiter by Lord Woolf MR in the Jeyeanthan case.[39]Nevertheless, it is material in the present context to note the summary of the grounds upon which the Appeal Tribunal reached the conclusion that the appellant had not been available for employment from 11th November 1996 to 12th February 1997. They are set out in the decision notice of 4th December 1997:
"Having heard oral evidence and read a number of statements, including those of the appellant's at page 15, signed ES 2 at page 16 and the appellant's letter of appeal at page 18, justifying his intention of an £18,000 restriction, the Tribunal is satisfied that Regulation 9 has been breached."
[40]Subsequently, in a statement of material facts and reasons for the Tribunal's decision dated 4th April 1998, the Tribunal expanded those reasons in these terms." "3. It was not until 13 February 1997 that the Appellant's solicitors, by letter, accepted that the £18,000 wage limit restriction was finally withdrawn. Prior to this date the Tribunal found the Appellant continued to justify his reasons and intention for [imposing] an £18,000 wage restriction. In our view, it was not simply an aspiration, as more likely than not having been informed of the consequences at his second interview, and the requirements of Regulation 9, he may have withdrawn the restriction. The reality of the situation is that this highly intelligent Appellant with a great array of skills, as evidenced by his Personal Profile at page 21 of the submission documents, intended to impose restrictions. The Tribunal had no legal alternative but to confirm the Adjudication Officer's decision."[41]At paragraph 2 of that statement of material facts the Tribunal referred to the fact that the appellant had been interviewed twice to ensure that he understood the requirements of regulation 9.[42]The appellant appealed to the Commissioner. The Commissioner set aside the Tribunal's decision on the grounds that it had been made without jurisdiction. A consequence of the Commissioner's decision that the Tribunal had been without jurisdiction was that he was bound to reach the conclusion, as he did, that he himself had no jurisdiction to substitute his own decision for that of the Tribunal. He said this:
"It is unfortunate that this results in possible injustice to the claimant but I can see no way round it. However, I explain below why any remaining sense of grievance that the claimant might feel is justified."
[43]The Commissioner's explanation in respect of justified grievance is found at paragraph 11 of his decision. After setting out the terms of regulation 9 in the 1996 Regulations, he went on to say this:
"In view of this provision it is improper to insist that a claimant specify in advance a level of remuneration. To do so is to force the claimant to do precisely that which the regulations say he must not do. The proper approach is to monitor the claimant's search for employment to see whether he is imposing such a restriction. In the present case there is no evidence that he was imposing such a restriction (and the burden of proof was on the adjudication officer to show this)."
[44]Form UB 589, on which the appellant applied for jobseeker's allowance in November 1996, has the appearance of a prescribed form in general use - at least at that time. In a case where the form is completed within the period of six months beginning with the date of the claim, question 16 presents no difficulty. But any restriction imposed by an answer to that question must be lifted or withdrawn on or before the expiry of that six month period. If that is not done, then (prima facie) regulation 9 of the 1996 Regulations will have the effect that the applicant must be treated thereafter as a person who is not available for work. But, in a case where the six month period has already expired at the time when form UB 589 is completed, the applicant should be told in clear terms that to specify a minimum wage in answer to question 16 is likely to have the effect that the application will be disallowed by reason of regulation 9.[45]If the Commissioner intended to suggest that, in all cases, it would be improper to insist that the claimant specified in answer to question 16 the level of remuneration which he would accept (which I doubt) I think he went too far. But I would agree that it would be improper for the Employment Service to insist on a claimant specifying in answer to question 16 a level of remuneration which imposes a restriction in circumstances in which form UB 589 is completed after the expiry of the six month period beginning with the date of the claim. To do so would be to insist on the claimant completing a form which is necessarily self-defeating.[46]The position in this case, however, is that the tribunal of fact - albeit exercising jurisdiction which it did not have - were satisfied, as a matter of fact, that this applicant, knowing of the probable consequences, did intend to specify such a restriction. Had the Appeal Tribunal had jurisdiction, I find it very difficult to see how the Commissioner could have differed from the tribunal on that question of fact. In those circumstances I am not persuaded that this is a case in which any remaining sense of grievance that the claimant might feel would be justified.[47]For the reasons which my Lord has given, the appeal should be dismissed on the grounds that the Tribunal had no jurisdiction to entertain an appeal from the adjudication officer.

MR JUSTICE NELSON: I agree with both judgments.

Order

Appeal dismissed. No application for costs. Detailed assessment of the claimant's costs.

Cited in 2 later judgments