Ferguson v Secretary of State for Work and Pensions [2003] EWCA Civ 536

[2003] EWCA Civ 536

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

Venue Royal Courts of Justice

Strand

London WC2

Wednesday, 12th March 2003

B e f o r e :

LORD JUSTICE MAY

LADY JUSTICE ARDEN and

LORD JUSTICE KEENE

Between

MICHAEL FERGUSON AppellantRespondent

-v-

Between

SECRETARY OF STATE FOR WORK AND PENSIONS RespondentAppellant

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Mr D Forsdick (instructed by the Office of the Solicitor, Department of Work & Pensions) appeared for Appellant.

The Respondent Mr M Ferguson appeared in person for in person

J U D G M E N T

(As Approved by the Court)

Date 2003-03-12

©Crown Copyright

LORD JUSTICE MAY:

[1]I will ask Lady Justice Arden to give the first judgment.

LADY JUSTICE ARDEN:

[2]This is an appeal, with the permission of Mummery LJ dated 30th January 2003, against the decision of Social Security Commissioner Williams dated 29th July 2002, by which the Commissioner allowed the respondent's appeal against the Appeal Tribunal's decision that he was not entitled to jobseeker's allowance (“JSA”) from 19th May 1999 to 13th June 1999. He made the following decision:

“The decision to end the appellant's entitlement to jobseeker's allowance from and including 18 May 1999 is set aside. The entitlement of the appellant to jobseeker's allowance ceased on 1 June 1999. The appellant is not entitled to jobseeker's allowance from and including 1 June 1999 to 13 June 1999 inclusive.”

[3]The Secretary of State contends that this appeal raises a point of importance because of the number of claimants affected by the decision in this case. However, so far as the respondent is concerned, the sums are small and accordingly the Secretary of State has undertaken not to pursue any order for costs against the respondent in the event of his appeal being successful, and he has agreed not to withhold or seek repayment of the benefit which was allowed by the Commissioner.

[4]JSA is payable to those who are actively seeking work and who satisfy a number of other conditions. Entitlement is dependent on a claim being made (see section 1 of the Social Security Administration Act 1992). JSA is payable fortnightly in arrears (see regulation 26A of the Social Security (Claims and Payments) Regulations 1987). JSA is paid in arrears because claimants have to demonstrate that during the previous fortnight they have satisfied the conditions for eligibility.

[5]In the present case the respondent made a claim for JSA, which was accepted in March 1999, but was required to attend regularly, as is the practice. He failed to attend for interview and to sign the declaration that he was required to sign on 1st June 1999 because he thought that he had the prospect of a job away from home. He next attended on 14th June 1999. Before the Commissioner the respondent accepted that he was not entitled to JSA for the period 1st to 13th June 1999, but he contended that his entitlement to JSA ceased on 1st June 1999 and not on 19th May 1999, as the Secretary of State contended. On this appeal the Secretary of State has contended that the appropriate date was 18th and not 19th May 1999, and I will deal with that point in due course.

[6]This appeal turns on the true interpretation of regulation 26 of the Jobseeker's Allowance Regulations 1996 (as amended) (SI 1996/207). Before I turn to those Regulations, I will turn to some of the provisions of the Jobseekers Act 1995. Section 1(1) of that Act provides that:

“An allowance, to be known as a jobseeker's allowance, shall be payable in accordance with the provisions of this Act.”

[7]Section 1(2) provides:

“Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he - (a)is available for employment; ...”

[8]Then paragraphs (b) to (i) of that subsection set out further conditions. Section 1(3) provides:

“A jobseeker's allowance is payable in respect of a week.”

[9]Sections 2 and 3 respectively deal with contribution-based conditions and income-based conditions. Section 4 deals with the amount payable by way of jobseeker's allowance. Section 5 deals with the duration of a contribution-based allowance. Section 6 deals with availability for employment. Section 7(1) provides:

“For the purposes of this Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment.”

[10]Section 8 is highly material to this appeal because it contains the powers which enable the Secretary of State to make the Jobseeker's Allowance Regulations. Section 8(1) provides:

“Regulations may make provision for requiring a claimant - (a)to attend at such place and at such time as the Secretary of State may specify; and (b)to provide information and such evidence as may be prescribed as to his circumstances, his availability for employment and the extent to which he is actively seeking employment.”

[11]Section 8(2) provides:

“Regulations under subsection (1) may, in particular - (a)prescribe circumstances in which entitlement to a jobseeker's allowance is to cease in the case of a claimant who fails to comply with any regulations made under that subsection; (b)provide for entitlement to cease at such time (after he last attended in compliance with requirements of the kind mentioned in subsection 1(a)) as may be determined in accordance with any such regulations; ...”

[12]I need not read the further provisions of section 8. It is important to note that section 8(2) draws a distinction between the circumstances or events in which a jobseeker's allowance will cease and the time at which the entitlement is to cease (see section 8(2)(a) and (b)).

[13]I now turn to the Jobseeker's Allowance Regulations 1996. The relevant provisions are as follows:

[14]Attendance “23. A claimant shall attend at such place and at such time as the Secretary of State may specify by a notice in writing given or sent to the claimant. Provision of information and evidence 24. -(1) A claimant shall provide such information as to his circumstances, his availability for employment and the extent to which he is actively seeking employment as may be required by the Secretary of State in order to determine the entitlement of the claimant to a jobseeker's allowance, whether that allowance is payable to him and, if so, in what amount.

(2) A claimant shall furnish such other information in connection with the claim, or any question arising out of it, as may be required by the Secretary of State. ... (4) A claimant shall furnish such certificates, documents and other evidence as may be required by the Secretary of State for the determination of the claim. (5) A claimant shall furnish such certificates, documents and other evidence affecting his continuing entitlement to a jobseeker's allowance, whether that allowance is payable to him and, if so, in what amount as the Secretary of State may require. (6) A claimant shall, if the Secretary of State requires him to do so, provide a signed declaration to the effect that - (a)since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph he has either been available for employment or satisfied the circumstances to be treated as available for employment, save as he has otherwise notified the Secretary of State. (b)since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph he has either been actively seeking employment to the extent necessary to give him his best prospects of securing employment or he has satisfied the circumstances to be treated as actively seeking employment, save as he has otherwise notified the Secretary of State, and (c)since making a claim for a jobseeker's allowance or since he last provided a declaration in accordance with this paragraph there has been no change to his circumstances which might affect his entitlement to a jobseeker's allowance or the amount of such an allowance, save as he has notified the Secretary of State. ... (10) Where, pursuant to paragraph (6), a claimant is required to provide a signed declaration he shall provide it on the day on which he is required to attend in accordance with a notice under regulation 23 or on such other day as the Secretary of State may require. Entitlement ceasing on a failure to comply 25. - (1) Subject to regulation 27, entitlement to a jobseeker's allowance shall cease in the following circumstances - (a) if the claimant fails to attend on the day specified in a notice under regulation 23, other than a notice requiring attendance under an employment programme or a training scheme; (b)if - (i)the claimant attends on the day specified in a notice under regulation 23 but fails to attend at the time specified in that notice (other than a notice requiring attendance under an employment programme or a training scheme), and the Secretary of State has informed the claimant in writing that a failure to attend, on the next occasion on which he is required to attend, at the time specified in such a notice may result in his entitlement to a jobseeker's allowance ceasing, and (ii)he fails to attend at the time specified in such a notice on the next occasion; (c)if the claimant was required to provide a signed declaration as referred to in regulation 24(6) and he fails to provide it on the day on which he ought to do so in accordance with regulation 24(10). ... Time at which entitlement is to cease 26. Entitlement to a jobseeker's allowance shall cease in accordance with regulation 25 on whichever is the earlier of - (a)the day after the last day in respect of which the claimant has provided information or evidence which shows that he continues to be entitled to a jobseeker's allowance, (b)if regulation 25(1)(a) or (b) applies, the day on which he was required to attend, and (c)if regulation 25(1)(c) applies, the day on which he ought to have provided the signed declaration, provided that it shall not cease earlier than the day after he last attended in compliance with a notice under regulation 23. Where entitlement is not to cease 27. - (1) Entitlement to a jobseeker's allowance shall not cease if the claimant shows, before the end of the fifth working day after the day on which he failed to comply with a notice under regulation 23 or to provide a signed declaration in accordance with regulation 24, that he had good cause for the failure. (2) In this regulation, `working day' means any day on which the appropriate office is not closed. Matters to be taken into account in determining whether a claimant has good cause for failing to comply with a notice under regulation 23 28. - (1) Subject to regulation 30, in determining, for the purposes of regulation 27, whether a claimant has good cause for failing to comply with a notice under regulation 23 the matters which are to be taken into account shall include the following - (a)whether the claimant misunderstood the requirements on him due to any learning, language or literacy difficulties of the claimant or any misleading information given to the claimant by an employment officer; (b)whether the claimant was attending a medical or dental appointment, or accompanying a person for whom the claimant has caring responsibilities to such an appointment, and whether it would have been unreasonable, in the circumstances, to rearrange the appointment; (c)any difficulty with the claimant's normal mode of transport and whether there was any reasonable available alternative; (d)the established customs and practices of the religion, if any, to which the claimant belongs; (e)whether the claimant was attending an interview for employment. (2) In this regulation, `employment' means employed earner's employment except in relation to a claimant to whom regulation 20(2) applies and for the duration only of any permitted period determined in his case in accordance with regulation 16, in which case, for the duration of that period, it means employed earner's employment or self-employed earner's employment.” Provision of information and evidence Entitlement ceasing on a failure to comply Time at which entitlement is to cease

Where entitlement is not to cease

[15]It will be seen that the wording of 26(a) in the Jobseeker's Allowance Regulations 1996 (as amended) provides that entitlement to JSA “shall cease in accordance with regulation 25 on whichever is the earlier of (a) the day after the last day in respect of which the claimant has provided information or evidence which shows that he continues to be entitled to a jobseeker's allowance ...”. In the Regulations as originally enacted the words “establishes his entitlement” appeared in place of the words “shows that he continues to be entitled”. But at the relevant time for the purposes of this appeal the Regulations were in the form which I have already read.

[16]Section 8 of the Jobseekers Act 1995 enables regulations requiring a claimant for JSA “(a) to attend at such place and at such time as the Secretary of State may specify; and (b) to provide information and such evidence as may be prescribed ...”The 1996 Regulations are made under section 8. Regulation 23 replicates the requirement of section 8 for a jobseeker to attend as required. Regulation 24 sets out the information and evidence which he must provide and, in addition, the declaration which he must make. Regulation 25 sets out the events on the happening of which he will cease to be entitled to JSA. Regulation 26 is directed to the time as and from which entitlement to JSA terminates.

[17]I now turn to the decision of the Social Security Commissioner. The Commissioner recorded the submissions of the respondent and the appellant respectively. The respondent appeared in person, as he has done on this appeal, and he has helpfully made submissions to us on this occasion. The appellant argued that his case came within regulation 26(c) because there was no set of events in a case like his where the events in regulation 26(b) and 26(c) could actually occur before the event of 26(a). If regulation 26(c) applied to signings-on by post, then the position was unfair to persons in the respondent's position since in the case of postal signers only two weeks' JSA was lost, whereas in his case four weeks' JSA was lost. Accordingly, regulation 26(c) applied to him and not regulation 26(a).

[18]The Secretary of State relied on regulation 26(a). The Secretary of State's case was that regulation 25(1)(a) applied to the respondent. That regulation was subject to regulation 27. Accordingly, the respondent had a second opportunity under regulation 27 which he did not use. Regulation 26(c) applied to postal signings-on. Regulation 26(b) applied to attendances. There was no unfairness. Parliament had decided that claims should be made forwards, but payments backwards; so a gap would always be a four-week gap, not a two-week gap, even in the case of postal signings-on.

[19]In his decision the Commissioner observed that, although regulation 26 provided that entitlement was to cease on the earlier of three events, on a superficial reading the word “earlier” should be, grammatically, the word “earliest”. The Commissioner had regard to regulation 26(a) as originally enacted. In its original form he considered it applied only to new claims and that accordingly the amendment to substitute the new wording was not a minor amendment, as indicated in the regulation which amended it.

[20]The Commissioner examined the process of signing on. He held that there were three stages:(i) this claimant is told to attend on a particular day;

(ii) he is told to attend at a particular time;

(iii) when he attends, he is told to sign a declaration. He held that regulation 23 deals with stages (i) and (ii). Regulation 24(6) and (10) deals with stage (iii). Regulation 25 states what is to happen if the claimant fails to comply with any of the stages. Regulation 25(1)(a) deals with stage (i). Regulation 25(1)(b) deals with stage (ii). Regulation 25(1)(c) deals with stage (iii). The Commissioner rejected the argument that regulation 25(1)(c) applies only to postal claims, otherwise there would be nothing to stop the entitlement of a claimant who had failed to comply with stage (iii), such as where he had attended but failed to sign the declaration required. The Commissioner then summarised his conclusions thus far in paragraph 34 of his decision.

[21]In paragraph 37 of his decision the Commissioner rejected the argument that regulation 26(a) applies to failure to provide a declaration as well as regulation 26(c). The Commissioner rejected this argument because if regulation 26(a) was intended to be “all encompassing”, as is contended by the Secretary of State, there would be no need for regulation 26(b) and (c). The Secretary of State's construction would render those two paragraphs devoid of content. Moreover, there would be no reason for Parliament to provide two conflicting rules about stopping JSA entitlement in a regulation designed to resolve such conflict. Regulation 26(c) refers to declarations also referred to in regulation 24(6), while regulation 26(a) refers to information or evidence.

[22]The Commissioner went on to conclude that regulation 26(a) deals with requirements under regulation 24(5) after a claim was accepted. Regulation 24(5) refers to certificates, documents or other evidence, whereas 24(6) refers to declarations. The Commissioner made the point in his decision that regulation 26 can only apply where regulation 25 applies. This point is accepted by the Secretary of State. The Commissioner referred to the Secretary of State's submission that regulation 26(a) was “all encompassing”, but on this submission there would, in the Commissioner's view, be nothing to stop entitlement for failure to comply with regulation 24(5). There would be no remedy for failure to comply with regulation 24(7). There would have to be a specific request for information or evidence (see the Commissioner's decision at paragraph 41).

[23]Accordingly, the Commissioner concluded as follows in paragraph 42 of his decision:

“Read as a whole, and with those points in mind, there is a clear intended pattern to regulation 26, though that pattern is, in my view, faulty. Paragraph (a) is intended to deal with a failure to meet any specific requirement under regulation 24(5) (though it may not achieve that aim). It does not deal with regulation 24(6). Paragraph (b) deals with a failure to turn up at the right day and time under regulation 23. Paragraph (c) deals with a failure to sign a declaration under regulation 24(6), including a failure to sign a declaration on a personal attendance as provided under regulation 24(10). The proviso to regulation 26 prevents the regulation being applied to override a previous compliance with regulation 23.”

[24]In the application of that conclusion to the present case, the Commissioner concluded that the respondent lost his right to JSA on 1st June 1999 and not before.

[25]I now turn to the submissions of both parties on this appeal, starting with those of the appellant, the Secretary of State. Mr David Forsdick, for the Secretary of State, submits that regulation 25 defines the events in which cessation is to occur and regulation 26 makes provision for the date of cessation once triggered by one of the events in regulation25. The first step, then, is to decide whether any of the events in regulation 25 has occurred. The regulation is correct in using the word “earlier”, since the event will be either the event in regulation 26(a) or (b), in the event of a failure to attend, or the earlier of regulation 26(a) or (c), in the event of a failure to provide a signed declaration. In either case the cessation date is the earlier of these two dates, as provided in the opening words of regulation

26. Mr Forsdick submits that the Commissioner failed to appreciate that there had to be a triggering event within regulation 25 and on that basis his argument that there was no remedy for failure to comply with regulation 24(5) and (7) did not arise. Furthermore, Mr Forsdick submits that the date for termination would not necessarily be the date for the trigger. This is because regulation 26(a) expressly says an “earlier” date and the proviso confirms the fact that the date for termination will not necessarily be the date of the cessation event. Regulation 26(a) does not determine what constitutes a cessation event, but sets out a date on which the cessation event is to take effect. Regulation 26 is logical because JSA is paid in arrears. The Commissioner's approach failed to give due weight to the words “the earlier of” in regulation 26.

[26]On the Secretary of State's analysis, the claimant would cease to be entitled with effect from and including 18th May, being the day following the last day on which he complied with his obligations. This is consistent with the decisions of the Commissioners in other cases, particularly CJSA/2327/2001 and CJSA/3139/2001. The claimant did not satisfy the criteria for eligibility on 19th May 1999, yet, on the Commissioner's analysis, he would remain entitled not only on that day but through the following two-week period, even though he had not demonstrated satisfaction of any of the conditions of entitlement in accordance with the Regulations at the end of that period of payment in arrears.

[27]The Secretary of State addresses the Commissioner's arguments for refusing permission to appeal. The Commissioner was concerned that the Secretary of State's interpretation would deprive regulation 26(b) and (c) of practical content. Mr Forsdick submits that regulation 26(a) clearly applies where a person fails to come in to sign on and there is no further contact with that person. Regulation 26(b) applies where a person fails to attend on a specified day or does not come in at the right time after having been warned about this, but comes in a few days late and cannot show a good cause for delay. Regulation 26(c) could apply where a postal signer does not send in his declaration on the relevant date but does so shortly thereafter. However, the Secretary of State accepts on this appeal that regulation 26(c) is not confined to postal signings-on. As regards the drafting history, Mr Forsdick submits that the earlier version of the regulation does not impact on the analysis set out above, but it is in any event the Regulations as in force at the relevant date that need to be construed.

[28]Mr Forsdick also refers to the Social Security and Child Support (Decisions and Appeals) Regulations 1999. These provide, in relevant part, as follows:

“16. - (1) Subject to paragraph (2), the Secretary of State [or the Board] may suspend payment of a relevant benefit, in whole or in part, in the circumstances prescribed in paragraph (3). (2) The Secretary of State shall suspend payment of a jobseeker's allowance in the circumstances prescribed in paragraph 3(a)(i) or (ii) where the issue or one of the issues is whether a person, who has claimed a jobseeker's allowance, is or was available for employment or whether he is or was actively seeking employment. (3) The prescribed circumstances are that - (a)it appears to the Secretary of State [or the Board] that - (i)an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled; (ii)an issue arises whether a decision as to an award of a relevant benefit should be revised under section 9 or superseded under section 10; ... 17. - (1) This regulation applies where the Secretary of State requires information or evidence for a determination whether a decision awarding a relevant benefit should be - (a)revised under section 9; or (b)superseded under section 10. (2) For the purposes of paragraph (1), the following persons must satisfy the requirements of paragraph (4) - (a)a person in respect of whom payment of a benefit has been suspended in the circumstances prescribed in regulation 16(3)(a); ... (4) A person to whom paragraph (2) refers must either - (a)supply the information or evidence within - (i)a period of one month beginning with the date on which the notification under paragraph (3) was sent to him; or (ii)such longer period as he satisfies the Secretary of State is necessary in order to enable him to comply with the requirement; or (b)satisfy the Secretary of State within the period of time specified in subparagraph (a)(i) that either - (i)the information or evidence required of him does not exist; or (ii)that it is not possible for him to obtain it. ... 18. - (1) Subject to paragraphs (2), (3) and (4), the Secretary of State shall decide that where a person - (a)whose benefit has been suspended in accordance with regulation 16 and who subsequently fails to comply with an information requirement made in pursuance of regulation 17; or (b)whose benefit has been suspended in accordance with regulation 17(5), that person shall cease to be entitled to that benefit from the date on which payment was suspended except where entitlement to benefit ceases on an earlier date other than under this regulation. ...”

[29]Mr Forsdick prays those Regulations in aid to meet the Commissioner's concern that, where information or evidence is required under regulation 24(5) of the Jobseeker's Allowance Regulations but is not given by the claimant, there is no cessation event in regulation 25, so that there is no cessation and no date from which benefit ceases. This is obviously an omission from the Jobseeker's Allowance Regulations, but Mr Forsdick's submission is that there are other mechanisms in these Regulations for dealing with that situation. In particular, the Secretary of State may, or must, suspend benefit and has power to require information to be given; and if that information is not given, he is bound to terminate the entitlement to benefit.

[30]I now turn to the submissions of the respondent, Mr Michael Ferguson. As I have said, he has appeared on this appeal and has presented some arguments to us. His primary approach is to seek to uphold the decision of the Commissioner. His primary submission is that regulation 26 is flawed. In particular, he submits that it does not address the situation where a person attends but fails to produce information and evidence which he has been required to produce under regulation 23. He says that in the light of this submission the Commissioner was correct in seeking to find some other meaning than that contended for by the Secretary of State for the paragraphs of regulation 26; and accordingly that the Commissioner was right in his conclusion that in this case regulation 26(c) applied, with result that he continued to be entitled to benefit up to 1st June.

[31]In support of this submission he makes a number of points, including the point that when a notice is given under regulation 23 the claimant can be required not simply to attend but also to produce information; and so, submits Mr Ferguson, a failure to attend is an event which falls solely within regulation 26(b) and thus that is the operative provision and not 26(a).

[32]Mr Ferguson also relies on the policy. He submits that the Secretary of State could have relied simply upon a duty which all claimants have to report changes in circumstances. On this basis the Secretary of State did not need to have a provision that benefits should terminate as provided in regulation 26(a). The present construction sought to be applied by the Secretary of State is onerous on claimants. There will be individuals who will default in notifying the Secretary of State. That Mr Ferguson accepts, but he says that that is not a good answer because the position for which the Secretary of State contends is unduly onerous on claimants and leads to the result as in this case contended for by the Secretary of State.

[33]I now turn to my conclusions. I start by identifying the salient features of the statutory scheme for present purposes and also the nature of the entitlement. To deal with the statutory scheme I need to look at the Jobseekers Act 1995, the Social Security (Claims and Payments) Regulations and regulations 23 to 27 of the Jobseeker's Allowance Regulations, but I may do so briefly because the relevant provisions have already been set out. Starting with the 1995 Act, as I have pointed out already, the crucial point is that the power to make the Regulations with which we are concerned draws a distinction between circumstances and the effective date of cessation; that is between the circumstances in which cessation of allowance will occur and the time as at which the cessation will occur. Regulation 26A of the Social Security (Claims and Payments) Regulations makes it clear that JSA is to be paid fortnightly in arrears.

[34]Then we come to the Regulations themselves. The Commissioner took the view that regulations 23 to 28 provided a self-contained code to deal with claims to JSA. Within that code we see that regulation 23 deals with the obligation to attend. Regulation 24 deals with the requirement to produce information, evidence and declarations. Regulation 25 deals with the events on which the allowance terminates. Regulation 26 deals with the time at which the entitlement determines. Regulations 27 and 28 give a window of opportunity to a claimant who fails to attend on the relevant date to make good that omission by attending within five days and showing good cause for his failure to attend on the specified date. I draw particular attention to the distinction between regulations 25 and 26. Regulation 25 deals with the cessation events; I need not repeat them. Regulation 26, by contrast, is dealing with the time at which entitlement is to cease. This is made clear by the reference to the date which is the earlier of the three paragraphs, and also the proviso makes it clear that the effective date of termination of the allowance can be at some date other than the cessation event itself. I must return to that paragraph in a moment.

[35]I must first deal with the question as to whether any assistance is derived from the original version of the regulation. In my judgment the original version of regulation 26(a), to which I have already referred, does not matter in this case because it never applied to Mr Ferguson. We might have been concerned with it if the argument was that the amendment was to deal with a particular mischief or if there was a report to Parliament or some other report of standing which would assist us in determining the true meaning of 26(a), but neither of those circumstances arises and accordingly, in my judgment, no assistance is to be obtained by contrasting the wording we now have with the wording of 26(a) as originally enacted. I should observe that the Secretary of State contends that there was no substantive change wrought by the change of wording.

[36]I next turn to the entitlement. I will summarise the points I have already made as to the nature of JSA. It has to be claimed in advance by signing on, but it is paid fortnightly in arrears. It is, generally speaking, necessary for it to be justified by the signing of a declaration. In very nearly all cases the Secretary of State will require a declaration to the effect that the conditions have been satisfied during the preceding fortnight; for instance, that the claimant has done no work, paid or unpaid, unless he has given particulars to the Secretary of State. Accordingly, the Secretary of State has to be satisfied that the claimant satisfied the eligibility conditions on every day of the period in respect of which the allowance is to be paid. But on the original signing on, or the signing on for the relevant period, there is a potential entitlement which will only fructify into a payment at the end of the 14 days when a declaration, if required, is duly signed. But it may be, of course, that the claimant obtains employment during the course of that 14 days and it may well be that he does not return to the Jobcentre. If he ceases to qualify for JSA, he will not of course be paid at the end of the 14 days.

[37]On the question of construction with which this court has to deal, it really comes down to two substantial points. There are some minor points which I will mention separately, but the two substantial points are as follows. The first is this: is regulation 26(a) such as to render the other paragraphs devoid of meaning? That was a point which the Commissioner found to be important and it was one of the main reasons why he looked for another meaning to regulation 26 and imposed on regulation 26 the scheme and pattern which he imposed. The second substantial issue is this: is there a gap in the Regulations to the effect that a failure to provide information or evidence, as opposed to a declaration, is not a cessation event within regulation 25? The Commissioner was very concerned about this also. He held that there was no analogue to regulation 24(5) in regulation 25, and this was one of the factors which led him to reach the conclusion he did on the construction of regulation 26. Accordingly, if there is a lacuna for which there is no explanation, that may suggest that the Secretary of State's interpretation of regulation 26 cannot be correct.

[38]I turn to the first of the substantial issues, which I would call the devoid issue. I accept, for the reasons I have already given, the submission of the Secretary of State that there is a clear distinction between regulations 25 and 26. They reflect the enabling power and deal separately with cessation events and the effective date for cessation of a benefit. When we examine regulation 26(a) it is clear that that is directed to ensuring that the claimant only receives benefit for the period in respect of which he fulfils all the conditions of entitlement, otherwise there would be no point in having paragraph 26(a). It is necessary, of course, to fix a date other than that of the cessation event, and regulation 26 has that object because it refers, as I have said, to the earlier of certain events. The purpose of regulation 26(a), in contrast to 26(b) and (c), seems to me clearly to be to fix the date so that the claimant only receives benefit for the period in which he fulfils all the conditions of entitlement and has demonstrated that. As I have said, the proviso confirms that. It is also important to note that, contrary to the conclusion of the Commissioner, regulation 26(a) is dealing with a factual situation; namely, it is establishing the date as the day after the last day in respect of which the claimant provided information or evidence of the requisite kind. It is not dealing in terms with a failure to provide information or evidence; it is directed simply to a factual situation. Had it been intended to deal with a failure to comply with a requirement to produce information or evidence, as it seems to me, it would necessarily have been differently worded.

[39]As I see it, the answer to the devoid issue must be that 26(a) does not render 26(b) and (c) devoid of meaning. Circumstances can arise in which no declaration is required, in which case 26(b) and (c) will become operative. Circumstances can also arise where there is a failure to attend and reasonable cause for non-attendance is not shown but the claimant does produce satisfactory evidence of compliance with the conditions. On this point I would turn to the evidence of Mr Anthony Booth, an administrator in the Department for Work and Pensions responsible for certain policy aspects of the JSA. His witness statement is dated 13th November 2002. He says this:

“3.JSA claimants are normally required to attend the Jobcentre each fortnight. They lose entitlement if they fail to do so, unless they can show good cause for the failure within the next five working days. In the second quarter of 2002, about 180,000 JSA claims were terminated in these circumstances. 4.Most of those failing to attend make no contact with the Jobcentre during the five days. Consequently in terminating their entitlement, the Jobcentre has no information as to whether the JSA conditions were satisfied during the preceding fortnight. Entitlement is therefore terminated indefinitely with effect from the day after their last correct attendance. 5.Of those whose entitlement is terminated on a failure to attend, a minority make contact during the next five days but are found not to have good cause for their failure. They can, however, usually show that they satisfied the JSA conditions during the previous fortnight. Their entitlement is therefore terminated with effect from the date of failure only. They are also in a position to make an immediate new claim, so that their period of disentitlement lasts only from the date of failure to the date of renewal. About 30,000 people fell into this category in the second quarter of 2002.”

[40]Pausing there, as Keene LJ pointed out, the date of failure to which Mr Booth referred is the date of failure to attend. So circumstances can arise in which a person fails to attend but produces subsequently, and is accepted as producing, evidence of entitlement, so that paragraph (a) of regulation 26 would not apply.

[41]Before I leave Mr Booth's statement on this point, I note that in the next paragraph he draws the conclusion that, although it cannot be substantiated, it is probable that a significant proportion of the people who fail to attend and make no contact with the Jobcentre have in fact ceased to satisfy the JSA entitlement conditions at some point between their last attendance and the date of failure. He adds:

“Paying JSA to them for that period therefore risks making an overpayment.”

[42]Therefore, this evidence illustrates that section 26(a) does not render the subsequent paragraphs of that regulation inoperative or ineffective. Regulation 26(a) does not, moreover, provide that the necessary information can only be provided on the specified date for interview or in the window of opportunity permitted by regulation 27.

[43]I therefore turn to the next substantial issue of construction, which I will call the analogue issue. That is the question which much concerned the Commissioner. It is as to whether there was a sanction for failure to comply with a requirement under regulation 24(5) to produce information or evidence. As I see it, the answer to this issue has been provided by the Secretary of State's reference to the Social Security and Child Support (Decisions and Appeals) Regulations 1999, from which I have read extracts. Accordingly, there is separate statutory machinery which comes into operation if there is a failure to provide information or evidence and therefore it is not significant, in my judgment, that the failure to provide information or evidence is not a cessation event for the purpose of regulation 25.

[44]I now turn to some other points of construction which I would regard as less major but which nonetheless have to be dealt with. The first is a point which Mr Ferguson makes. He submits that a declaration is something distinct from information or evidence. Accordingly, because Mr Ferguson's failure was simply a failure to provide a declaration, his case fell within regulation 26(c) only and not 26(a). There was no requirement to produce information or evidence. This was an argument which appealed to the Commissioner, who accepted it. Mr Ferguson supports his argument by reference to regulation 24(5) and (6). Those paragraphs of the regulation do draw a distinction on their face between information and evidence and declarations. But as I see it, there is nothing to prevent the Secretary of State under regulation 24(4) from requiring evidence by way of a declaration. As May LJ put it, a declaration is intrinsically evidence of its contents. Accordingly, I would construe the word “evidence” in regulation 26(a) as capable of including a declaration.

[45]The next point with which I wish to deal is Mr Ferguson's submission that if a declaration falls within regulation 26(a) it does not “show” as required that a claimant continues to be entitled to JSA. But it is evidence which, within its own limitations, does show this, and it is a matter for the Secretary of State whether he accepts the declaration on its face. In my judgment it is sufficient to satisfy the word “shows” in regulation 26(a).

[46]The next point I must deal with is that the result of the regulation, on the Secretary of State's approach, is unfair to the claimant. In my judgment the Secretary of State provided answers to this point. It is necessary in order to obtain JSA that the conditions for entitlement are satisfied; and Parliament has conferred on the Secretary of State power to establish those conditions. In any event, if there is a failure to attend, then there is a window of opportunity in regulations 27 and 28 which a claimant could seek to bring himself or herself within. That mitigates the rigour of paragraph 26(a). Mr Forsdick also contended that the contrary conclusion might be said to be unfair to the taxpayer because it produces a two-week grace period for a claimant; i.e. a period within which a claimant obtains a benefit to which he has not established entitlement. For my own part, I do not think it is necessary to refer to unfairness to the taxpayer. In my judgment that point is better put as a point of logic and I will deal with it as such in due time. So far as unfairness is concerned, I adopt what May LJ put to Mr Ferguson in argument: that these Regulations must be construed without any presumption either for or against a claimant. As I see it, they must be given their fair interpretation. Nothing is to be construed in favour of the Secretary of State. If the claimant has an entitlement to an allowance, the court must give effect to that and require it to be paid.

[47]I next deal with a point made about postal signers. The evidence on this was also contained in Mr Booth's witness statement. He said this:

“7.The criteria for allowing JSA claimants to submit declarations by post instead of attending the Jobcentre every two weeks are an administrative matter within the Secretary of State's discretion. The criteria were changed in October 1996 to coincide with the introduction of Jobseeker's Allowance. Prior to that date unemployed claimants were `postal' if they lived more than 6 miles from the nearest Jobcentre. The current criteria are that JSA claimants can be postal if their total door-to-door journey from home to the nearest Jobcentre, using normal local public transport as appropriate, would: -take more than an hour in either direction; or -cause the claimant to be away from home for more than four hours. 8.Claimants can also be granted `postal' status if they have a medical condition which affects their ability to attend the Jobcentre.”

[48]Mr Ferguson rightly makes the point that there is no reference in the Regulations with which we are concerned to postal signers on. But it is clear from Mr Booth's evidence that in some cases it is a practical necessity that the Secretary of State allows persons to sign on in that way. The Secretary of State does not contend on this appeal that postal signers on are the only persons who may fall within paragraph 26(c). As I see it, that would clearly not be correct. The Commissioner understood the Secretary of State to submit that only postal signers on could come within regulation 26(c). If this was the submission made, I share his reservations. Regulation 26(c) is not so limited on its face. By its express terms it would appear to deal with the situation also where a person attends but then fails for some reason to sign a declaration, having been required to do so.

[49]Having answered all those issues, it seems to me that the anxieties which underlay the Commissioner's decision in this case fall away. Had the Commissioner reached the same conclusions as I have done on what I have termed the devoid issue and the analogue issue, it seems to me that he would inevitably have reached a different conclusion. As it was, in my judgment he failed to give appropriate weight in his conclusion to two important textual points from these Regulations. The first point is that regulations 25 and 26 cover different subject matters. They have a different scope. Regulation 25 deals with cessation events; regulation 26 deals with the effective date of cessation of benefit. In addition, the Commissioner failed, in my judgment, to give appropriate weight to the “earlier” point. As I see it, regulation 26 compels reference to the earlier of two dates. The court must give effect to those words and apply the regulation so that benefit terminates on whichever of those dates first occurs. It seems to me that the regulation was probably correct to say “earlier” rather than “earliest”, since only one of the cessation events in paragraphs (b) and (c) of regulation 26 will occur. Once it occurs, the benefit terminates and any subsequent event is irrelevant. Contrary to Mr Ferguson's submission, I cannot treat as subsumed within a failure to attend a failure to provide information or to sign a declaration with which a requirement to attend was coupled. It seems to me that those two matters must be decoupled in order to apply the regulation properly in accordance with its wording.

[50]The conclusion which I reach is, in my judgment, a logical one. Entitlement to JSA depends on eligibility. Eligibility depends for one of its requirements on showing entitlement at the end of the 14-day period. On the interpretation which I prefer, benefit will cease as at the date immediately following the last date for which the necessary proof was given if there is a failure to attend in accordance with regulation 25(a) or (b) or a failure to sign a declaration. As Mr Forsdick put it, the Commissioner's construction gives the claimant who is in default an additional two-week period of grace for which he cannot in fact prove eligibility. That seems to me to be contrary to the scheme of the Regulations. In addition, it seems to me to undermine regulations 27 and 28, which give a window of opportunity for five days only provided that the claimant can establish a reasonable cause for non-attendance. As I see it, the Commissioner's construction, with respect to him, was inconsistent with and undermined those regulations. Accordingly, on the main issue of construction I would allow the appeal.

[51]The next question with which I have to deal is that of the correct date for the determination of benefit. In paragraph 21 of his decision the Commissioner said this:

“The proviso to regulation 26 is unambiguous. [Mr Ferguson] should have been paid a JSA to 19 May 1999 not 18 May 1999 in any event. The decision of the Secretary of State stopped the JSA a day too early even if everything else about that decision was right. I emphasise this because, following CJSA/2327/2001, tribunals should consider it. It is a small but important safeguard. It does not stop a JSA until the day after an attendance, even if a claimant refused to sign a declaration. That would allow at least some claimants who had problems on the day they attended to turn up the following day and renew a JSA claim without a break in payment. And it makes it all the more important that there is a decision stopping JSA, as decided in CJSA/2327/2001, so that the correct date can be checked.”

[52]The question of the correct date for termination of the benefit is a question of applying regulation 26(a). That provides that, if it is the earlier event, benefit must cease on the day after the last day in respect of which the claimant has provided information or evidence which establishes his entitlement to JSA. Applying that regulation to the present case, it is clear, as I see it, that entitlement ceased on the 19th. However, no account is to be taken of the 19th in establishing the period of entitlement because the law takes no account of parts of a day. It would, as I see it, be wholly illogical if Mr Ferguson was to receive benefit for 19th May, which was a day after he had proved eligibility for benefit. The Commissioner rightly deals with this point in some detail because it is an important point in principle. I disagree with the conclusion he has reached. I feel that the point which he has made about the claimant having the ability to turn up on the next following day is of less weight than he gave it because of the presence of regulations 27 and 28 which, as I have stressed, provide a window of opportunity for claimants.

[53]I can now turn to the final point. The Commissioner, in refusing leave, gave as one of his reasons that there was no live issue in this case. I have explained that the course which the Secretary of State took was to undertake not to seek to stop payment or cause repayment of any benefit to which Mr Ferguson was entitled under the Commissioner's ruling or to seek an order for costs against him. In my judgment this approach was proper, but it did not deprive the application for permission to appeal of utility. There was a point of general importance in this case, as Mummery LJ noted when granting permission to appeal.

[54]For all those reasons I would allow this appeal and direct that entitlement ceased on 18th May 2002.

LORD JUSTICE KEENE: I agree.

LORD JUSTICE MAY: I also agree that this appeal should be allowed for the reasons which my Lady, Lady Justice Arden, has given.

[57]There will be an order accordingly and, subject to any submissions the parties may like to make, there will be a declaration that on the facts of this appeal Mr Ferguson's entitlement to jobseeker's allowance ceased (as I would personally express it) from 19th May 1999, so as not to be payable for that day. He was not entitled to jobseeker's allowance from 19th May to 13th June 1999 inclusive.

Order

appeal allowed; declaration made as set out above.