EAT/1394/99 TURNER COULSTON (A FIRM) v MRS M E JANKO [2001] UKEAT 1394_99_0309

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1394_99_0309Case No Appeal No EAT/1394/99. EAT/171/00 EAT/559/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/1394/99 TURNER COULSTON (A FIRM)APPELLANTMRS M E JANKORESPONDENTEAT/559/00 MRS M E JANKOAPPELLANTTURNER COULSTON (A FIRM)RESPONDENT
Before
Mr Justice Charles Mr B Gibbs Mr A E R MannersDate 3 September 2001
[1]APPEARANCES For the Appellant (Respondent in EAT/559/00) MR K TURNER (Partner) For the Respondent (Appellant in EAT/559/00) IN PERSON MR JUSTICE CHARLES : Introduction We have before us(a) appeals by the Respondent before an Employment Tribunal sitting at Bedford in respect of the decisions they made on Liability and Remedy, and(b) a cross appeal by the Applicant in respect of the decision on Remedy. The Extended Reasons for those decisions were sent to the parties on respectively 19 October 1999 and 23 December 1999.[2]The parties before the Employment Tribunal were Mrs Janko (the Applicant) and a firm of Solicitors called Turner Coulston (the Respondent before the Employment Tribunal and the Appellants before us).[3]The decision of the Employment Tribunal on Liability (the Liability Decision) was as follows:
"1. The Applicant was unfairly dismissed by the Respondents on or about 7 th October 1998. 2. The Applicant's claim for remedy will be considered by the Tribunal on 9 th December 1999."
[4]The decision of the Employment Tribunal on Remedy (the Remedy Decision) was as follows:
"1. The Applicant is entitled to £696.91 being: (a) pay in lieu of holiday £375.91 (b) unpaid wages £321.00 2. The Applicant is entitled to a basic award of £1650. 3. The Applicant is entitled to a compensatory award of £12,000. 4. The Recoupment Regulations apply."
The appeals – the "perversity points"[5]As, for example, appears from the judgment given by the President at the preliminary hearing the Notices of Appeal in respect of the Liability Decision and the Remedy Decision contain a number of grounds which can be described under the general headings "Perversity", "Findings that were contrary to the agreed and uncontested evidence" and "Failure to take into account a particular allegation in the evidence".[6]As the President pointed out in that judgment these are difficult grounds for an appellant to establish.[7]In this context we remind ourselves of the guidance given by this tribunal in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, where at paragraphs 33 and 34 the President (Mummery P) stated:
"Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no 'right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to 'meticulous criticism' or 'detailed analysis' or to trawl through it with a 'fine tooth comb'. What matters is the substance of the Tribunal's decision, looked at 'broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse. We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the Industrial Tribunal. It heard evidence from the witnesses, saw the material which Miss Stewart found to be offensive and considered the detailed arguments on the law and the facts. There is, of course, room for disagreement among different groups of people, such as Tribunals, as to what is or is not less favourable treatment and as to the extent to which women in the workplace are vulnerable to such treatment."
[8]At the preliminary hearing directions were given in an attempt to narrow the factual issues and the need for notes of evidence. These failed and a direction for the production of notes of evidence was given.[9]We pause to pay tribute to the quality of the notes of evidence in this case.[10]Following their production both sides have helpfully put in full skeleton arguments dealing with their points on this appeal (and the appeal against the Remedy Decision). These written arguments contain the relevant cross references and it was sensibly and properly accepted by both sides before us that it was not necessary for them to go through all of the points contained therein orally. Rather both sides in their oral submissions concentrated on key points.[11]Oral submissions were made as to the events of 11 September 1998 (which was the last day the Applicant attended at the office) and the findings made by the Employment Tribunal as to these events which are important because they were the trigger to the Applicant leaving and claiming that she had been constructively dismissed. We shall return to these points later.[12]Although the remaining points raised on the appeal against the Liability Decision, and the Remedy Decision, have been dealt with separately in the skeleton arguments, save for the other points which we deal with specifically hereafter, we propose to deal with the remainder of those points compendiously. The general reason for this is that in our judgment the written submissions put in by the Applicant deal effectively with these further grounds or bases of appeal.[13]In general terms in our judgment on a broad and fair reading of the Extended Reasons:(a) no finding of the Employment Tribunal can properly be described as perverse;(b) the arguments that findings of the Employment Tribunal are contrary to the agreed or undisputed evidence, or are not supported by any evidence, all fail;(c) the arguments that the Employment Tribunal failed to take into account evidence, submissions or assertions, or failed to properly explain their findings having regard to the evidence, submissions and assertions, all fail; and(d) in general terms none of these points establish that the Employment Tribunal erred in law.[14]Naturally we accept that in a number of respects Turner Coulston do not accept the findings of fact made by the Employment Tribunal. However, the Employment Tribunal heard evidence over a number of days and, as Turner Coulston are well aware, the Employment Tribunal are the fact-finding tribunal and to succeed on this appeal they have to demonstrate that the Employment Tribunal erred in law. In our judgment Turner Coulston have failed to do that in respect of the grounds we have dealt with compendiously. The appeal against the Liability Decision[15]We start our separate consideration of this appeal by making the following points:(1) In paragraphs 8 and 9 of the Extended Reasons by reference to the cases referred to therein the Employment Tribunal identified and posed the correct test in law and by reference thereto in paragraph 11 posed themselves the right question. Those cases were Western Excavating (EEC) Ltd v Sharp [1978] IRLR 27 (a leading case on constructive dismissal), Mahmud v BCCI [1997] IRLR 462 (a leading case on the implied term of trust and confidence) and Brown v Merchant Ferries Limited [1998] IRLR 682 (a case commenting on what needs to be shown to establish a constructive dismissal based on a breach of that implied term and the Sharp and BCCI cases and which we agree sets the correct test and approach).(2) It is clear from the length of the hearing, the number of witnesses and the written submissions that much was said, and we would add could properly be said, on both sides as to their respective perception of the significant events and more generally their working relationship and environment. It follows that the Employment Tribunal were faced with competing versions and perceptions thereof.(3) In our judgment although the arguments of the Appellants are based on the approach and findings of the Employment Tribunal the Appellants still place weight on their perception and analysis of documents and events. This would be understandable even in the absence of their attack on some of the findings on the grounds of perversity and lack of evidence to support them but those attacks (which we have rejected) add to point that the Appellants arguments are based in part on their version of events,(4) As is well established and is reflected in the Stewart case cited above (although it is not one of the cases generally cited for these propositions) the approach of this Tribunal to Extended Reasons is not to submit them to detailed literal analysis but to read them broadly and benevolently to identify the substance of the decision of the Employment Tribunal looked at broadly and fairly. Additionally in respect of issues such as those that arose in this case and which depend on an analysis of conflicting evidence of events and perceptions this Tribunal recognises that the Employment Tribunal is the body charged with making decisions of primary and secondary fact and the function of this Tribunal is limited to considering whether the Employment Tribunal erred in law in so doing (e.g. by applying the wrong test or approach),(5) In dealing with the issues in this case the Employment Tribunal were entitled to, and indeed in our view were bound to, take an approach that had regard to all the circumstances and one which after an examination of the relevant events individually had regard to their combined and cumulative effect.(6) In our judgment a point that can be made against the argument and analysis of the Appellants is that it does not have regard to the combined and cumulative effect of the relevant (and disputed) circumstances.[16]Points in the Appellants' argument, with our comments thereon, are:1.1 The letter of 22 January 1998, which was written shortly after the reduction in the numbers of secretaries and the day after the Applicant had decided not to attend a meeting for staff at which the changes were to be discussed, did not feature in the further and better particulars of the Applicant's case and was not accompanied by medical evidence.1.2 All this is correct and in our judgment is recognised by the Employment Tribunal (see for example paragraphs 7 (18) to (20) of the Extended Reasons).1.3 Further we agree with the Appellants that(i) these points can be said to show a reluctance by the Applicant to co-operate in the reduction of secretaries decided on as part of their plans, and(ii) the receipt of a letter from an employee that warns that he, or she, may be made ill by a course of conduct envisaged, or being put into effect by an employer is not by itself enough to render the employer in breach of contract if he does not accept that this is, or is likely to be the case, and carries out little or no investigation.1.4 In our judgment (i) the reaction and attitude of an employee to a change in working conditions decided upon by the employer, and (ii) such a letter and the employer's reaction to it has to be assessed having regard to all the relevant circumstances of the case.1.5 In our judgment on a fair reading of the Extended Reasons and in the knowledge, for example, of the findings (and evidence) as to the Applicant's character, the quality and nature of her workload and the perceptions of the parties as to those matters and the evidence that Mr Josephs knew of her history of depression it was perfectly open to the Employment Tribunal to conclude as they did that this letter was a cry for help.1.6 Further we add that it is important to consider both (i) the Applicant's reaction to the change in working conditions, and (ii) this letter and its effect having regard to the history of the case and in particular the findings of the Employment Tribunal in paragraphs 7 (12), (22) and the end of (26) of the Extended Reasons.2.1 The Appellants submitted that the letter of 22 January 1998 did not raise safety matters.2.2 We accept that.2.3 However in our judgment the Appellants seek to make too much of this point because in our view on a fair reading of the Extended Reasons (i) the basis for the decision of the Employment Tribunal is the conclusion in paragraph 19 of the Extended Reasons, and (ii) notwithstanding its last two sentences paragraph 16, and thus the references therein by the Employment Tribunal to British Aircraft Corporation v Austin [1978] IRLR 332 and to safety are by way of analogy and to assess the failure to investigate the effects of the change in secretarial support on the Applicant having regard to the implied term of mutual trust and confidence.2.4 If, and to the extent that, the view expressed in paragraph 2.3 is wrong we are further of the view that any reliance on a breach of an implied term relating to matters of safety is severable and does not found a successful appeal.3.1 The events of 11 September 1998.3.2 As mentioned above (see paragraph 11) an area of the evidence and thus the disputes of primary fact upon which we heard oral submissions were the events of 11 September 1998 and in particular whether the exchanges between the Applicant and Mr Josephs contained a reprimand in humiliating circumstances. The Appellants in argument relied largely on the Applicant's statement and further and better particulars.3.3 The focus of this attack on the findings was that on the Applicant's own evidence no-one else was present when Mr Joseph made the remark recorded at the beginning of paragraph 7 (27) of the Extended Reasons, or until the Applicant sought assistance from Mrs Hill.3.4 From that it was argued that the finding that Mrs Churchill was present during the first part of the interview was wrong and unsupported by evidence, and further that the Appellants should not have to bear responsibility for what was said in the presence of others because they were brought in by the Applicant.3.5 There was a dispute in submission as to whether Mrs Churchill had given evidence that she had heard the first part of the exchanges. For present purposes we shall assume in favour of the Appellants that there was no evidence that Mrs Churchill was present, or heard, the first part of the exchanges and therefore that the Employment Tribunal made a mistake in saying that she was so present.3.6 On that assumption in their favour in our judgment this argument of the Appellants is pedantic and somewhat petty. We are of this view because having regard to the findings in paragraph 7(27) as supplemented by the notes of evidence and the submissions of the parties it is clear to us that the nature and general content of the exchanges continued after the Applicant sought assistance, and thus some support, from Mrs Hill.3.7 Further it seems to us that what matters in respect of these exchanges, which were heated on the Applicant's side, is the overall tenor and approach of the respective participants and their connection to the continuing issues relating to the reduction in secretarial support and the Appellants' stance in respect of it recorded for example at the end of paragraph 7(26) of the Extended Reasons.3.8 In our judgment on a fair reading of the Extended Reasons this is the approach of the Employment Tribunal and their reference in paragraph 15 of the Extended Reasons to the accusation they find was made during the early part of the exchanges as being the final straw does not isolate it from the remainder of those exchanges.3.9 In this context we have not overlooked the point that the Employment Tribunal return to this accusation in the Extended Reasons for the Remedy Decision and we accept that this confirms that they attached importance to it.3.10 Additionally in our judgment on a fair reading of the Extended Reasons the reference in the last sentence of paragraph 18 thereof to the Applicant being reprimanded is not confined to the earlier part of the exchanges. This follows from the reference therein to Mrs Hill as well as to Mrs Churchill. On our assumption in favour of the Appellants, referred to in paragraph 3.5 above, this finding is a confirmation that the nature of the exchanges continued after the Applicant sought assistance from Mrs Hill and they continued in her presence and that of Mrs Churchill.3.11 On a point of detail it is to be noted that the finding is that the Applicant sought assistance from Mrs Hill and not from her and Mrs Churchill and this was not disputed. Further it is unlikely that the Applicant would have invited Mrs Churchill to assist her, or have regarded her as an ally, given the finding in paragraph 7(25) of the Extended Reasons. This means that on the facts the Appellants' argument that the exchanges between Mr Josephs and the Applicant were either when they were alone or in the presence of an invitee of the Applicant is incorrect.3.12 Finally in this context we add that in our view on a fair reading of the Extended Reasons it is not correct to treat paragraph 18 thereof, and thus the reference therein to Hilton International Hotels (UK) Limited v Protopapa [1990] IRLR 316, as a free standing and separate basis for the decision. As with paragraph 16 of the Extended Reasons and the reference therein to the Austin case, we are of the view that this reference in paragraph 18 is by way of analogy and is part of the reasoning relating to the breach of the implied term of trust and confidence and if, and to the extent that, we are wrong as to that it is severable.4.1 The Appellants argued that the delay between the exchanges on 11 September 1998 and her "resignation letter" of 6 October 1998 and the points that she produced medical certificates during that period, took legal advice 7 days after 11 September and was paid over the period had the result that she did not leave because of the Appellants' alleged breach of contract or that she had waived such breach.4.2 These are in effect arguments on causation.4.3 In our judgment these points were dealt with properly by the Employment Tribunal in particular by the end of paragraph 7(27) and paragraphs 10 and 20 of the Extended Reasons.[17]We agree with the Appellants that at the heart of the reasoning of the Employment Tribunal is their conclusion that the Appellants failed to render the Applicant reasonable support. Again in our judgment on a fair reading of the Extended Reasons (and as with paragraphs 16 and 18 thereof) it is wrong to isolate paragraph 17 thereof and the reference therein by the Employment Tribunal to Wigan Borough Council v Davies [1979] ICR 411 is by analogy and to assess the failure to investigate the effects of the change in secretarial support on the Applicant having regard to the implied term of mutual trust and confidence. In our judgment the conclusion of the Employment Tribunal is not based on a finding that there is a separate and free standing term to render the Applicant reasonable support and if, and the extent that we are wrong as to that it is severable.[18]Main points in the Appellants argument that they were not in breach of the implied term of mutual trust and confidence by failing to provide support to the Applicant in respect of their decision to reduce secretarial support are(i) that they were not alerted to the need to do this by the letter of 22 January 1998 (or otherwise),(ii) they were entitled to make a management decision to reduce secretarial support,(iii) the Applicant was treated no differently to anyone else and(iv) it was contradictory of the Employment Tribunal to find that there was a breach of contract when they accepted that the Appellants were entitled to make their own judgment as the degree and nature of the secretarial support that would be provided. We have already dealt with argument (i) in paragraph 16 sub-paragraphs 1.1 to 1.6 above.[19]In our judgment arguments (ii) to (iv) are flawed and fail to recognise the essential reasoning of the Employment Tribunal. Like the Employment Tribunal we accept that the Appellants, as employers, are entitled to decide (having regard, for example, to commercial considerations beyond their control) the level of secretarial support they will provide as a firm. But it does not follow therefrom that the changes that decision brings about, their effect on employees and how they are dealt with will not found a claim for constructive dismissal on the basis that they constitute a repudiatory breach of the implied term of mutual trust and confidence. Additionally it does not follow that if the Applicant was treated the same as the other members of the firm who needed secretarial support there would be no repudiatory breach in her case. For that argument to have force like has to be compared with like, and the Employment Tribunal had regard the work the Applicant did and it is apparent did not accept that she was treated the same as such other members of the firm. The Employment Tribunal also found that her sharing with Mr Turner was not on a like with like basis and that there was little team spirit (see for example paragraphs 7 (5), (12) to (15), (22), (25) and the end of (26) of the Extended Reasons).[20]Further we repeat that in respect of these arguments the Appellants seem to us to take and rely on incidents in isolation and to fail to look at the circumstances cumulatively. This is reflected in part in the argument on waiver advanced in the skeleton argument put before this Tribunal on the preliminary hearing. In our judgment this argument misses the point. We accept that it can be said that the decision to reduce the amount of secretarial support is a once and for all decision but the way in which the support is allocated and used is a continuing matter, as is the manner in which complaints as to the allocation and use of secretaries are dealt with. The finding that the Applicant continued to complain about the lack of secretarial support (see paragraph 7(24)) goes to those continuing issues as do the findings concerning the attitude of the Appellants to the provision of secretarial support to the Applicant and the pressures she was under having regard to her workload, method of working and temperament (see again for example paragraphs 7 (5), (12) to (15), (22), (25) and the end of (26) of the Extended Reasons and paragraphs 7 (1) to (4) thereof).[21]We agree with the Appellants that the suggestion made at the Preliminary Hearing that the "eggshell skull" cases to the effect that a Plaintiff has to take a Defendant as he finds them may have some relevance is not one that ought to be pursued. In our judgment an introduction of these cases into the analysis of the objective test confirmed by Lord Steyn in the BCCI case, which is referred to in paragraph 19 (and rephrased in paragraph 20) of the judgment in Brown v Marchant case is unnecessary and inappropriate and would be likely to cause rather than to reduce problems. In our judgment that objective assessment of the impact of the employer's behaviour on the employee brings into account all the relevant circumstances concerning the working relationship including(i) the characteristics and frailties of the employee (and the employer) and their respective knowledge thereof,(ii) the nature of the work done by the employee, and(iii) the extent, nature and effect of changes on the ability of the employee to do his or her work and the overall working relationship.[22]In our judgment on a fair reading of the Extended Reasons the Employment Tribunal asked themselves and answered that objective test and found that objectively assessed the impact on the Applicant of the reduction in secretarial support, the manner in which thereafter(i) she was provided with such support and(ii) her complaints and concerns were dealt with went to the core of her employment contract and the Applicant could, and did, properly conclude that having regard thereto the appellants were repudiating that contract.[23]For the reasons given above we dismiss the appeal against the Liability Decision. The appeal against the Remedy Decision[24]On the Preliminary Hearing it was said by this Tribunal that there was just enough to say that there was an arguable point on this appeal and it was pointed out that much of the grounds fell under the heading of the "perversity points".[25]This appeal was not pursued with any vigour before us orally and as to it we were referred to the skeleton argument put in by the Appellants in respect of it in the preliminary hearing. In our judgment this was a sensible course for the Appellants to adopt and we imagine that factors in their decision to take that course were that the compensation was capped by the statutory limit and there is an overlap with the perversity points taken on the appeal against the decision on liability.[26]The skeleton put in on the preliminary hearing advances arguments under the headings "Contributory Fault" and "Mitigation and causation". In our judgment those arguments do not found a successful appeal.[27]Subject to the point mentioned in paragraph 28 below in our judgment the arguments under both headings in that skeleton argument do not raise any point of law and turn on issues of fact relating to causation. A number of them mirror points made on the appeal against the Liability Decision. In our judgment the Employment Tribunal had evidence upon which they could reach the conclusions that they did on contributory fault, causation and mitigation and those decisions were not perverse.[28]Under the second head of argument there is an alternative assertion in the skeleton that Devine v Designer Flowers [1993] IRLR 517, a decision of the Employment Appeal Tribunal in Scotland, was incorrectly decided or applied. This is clearly a point of law but as we were not referred to that case and this argument was not pursued before us and we have not considered it. We add that even we had accepted that argument we are of the view that to succeed the Appellants would still have had to go on and establish their other points in respect of the facts and therefore the point was of academic interest only.[29]For the above reasons we dismiss the appeal against the Remedy Decision. The Cross Appeal[30]Within the Extended Reasons for the Remedy Decision the Employment Tribunal state (see paragraph 23 of the Extended Reasons) that the "apportioned recoupment figure is £6945.94".[31]On 11 January 2000 the Employment Tribunal sent out a Notice of Recoupment. It is stated on the copy we have seen that it is sent pursuant to Rule 5(1) of the Employment Protection (Recoupment of Job Seekers Allowance and Income Support) Regulations 1996 (SI 1996 /2349) (the 1996 Regulations) but it seems to us that it was in fact sent out pursuant to Regulation 4 of the 1996 Regulations.[32]It seems that this notification of recoupment has given rise to some confusion in the minds of the parties which in turn has given rise to a cross-appeal by the Applicant. She was given leave to bring that cross-appeal by this Tribunal on 18 April 2000. In respect of it the President in giving the judgment of this Tribunal stated as follows:
"15 We said that there were three matters. Mrs Janko is present this morning and she wishes to raise a third matter. In the light of what we are about to say, it does not seem necessary to call upon her but on 15 April, that is to say very recently, she indicated a wish to cross-appeal on the remedies decision, so far as concerned the impact of Recoupment Regulations. Her case is that incapacity benefit which, she says, is the relevant benefit to consider, does not fall within the Recoupment Regulations. We extend time for service of a Notice of Appeal or Cross-Appeal, whatever would be appropriate on Mrs Janko's part, to 16 April. On that basis that validates the Notice of Appeal which she has already sent in. There is, as it seems to us, here an arguable point of law. On a pro forma preliminary hearing of the Notice of Appeal, which we just validated, we direct that it too should go to a full hearing with the other two to be heard at the same time. We have not heard Mrs Janko on this at all. If she wishes to add something on this third point she is at liberty to do so. Since we have given her all that she asked for, it may be that she has nothing further to say."
[33]In respect of this cross-appeal the argument before us has not focused on Incapacity Benefit, or its inclusion or exclusion from the Recoupment Regulations. We however, pause to comment that Incapacity Benefit is not included therein (see Regulation 8 of the 1996 Regulations and Section 16(3) of the Employment Tribunals Act 1996).[34]Before us the focus of the submissions has been on the point raised in the Applicant's Notice of Appeal that Turner Coulston have alleged that the sum of £6,945.94 was payable under the 1996 Regulations to the Benefits Agency. The stance of Turner Coulston before us has been that they simply wish to know how they should discharge their liability under the order made by the Employment Tribunal having regard to the impact of the 1996 Regulations. They have pointed to the Notification of Recoupment form sent by the Employment Tribunal as an indication that they should pay the sum of £6,945.94 (therein described as the prescribed element) to the Benefits Agency and the balance therein of £6,704.36 to The Applicant.[35]We were shown correspondence between the Applicant and the Benefits Agency. By a letter dated 3 August 2000 the Benefits Agency have informed The Applicant as follows:
"With reference to your letter dated the 21/07/00 about recoupment of benefit. The Industrial Tribunals Act enables the Secretary of State to recover from an employer some or all of any Job Seekers Allowance already paid for a period covered by an initial award. The amount to be recouped is the lesser of: 1 the amount of the prescribed element, or 2 the amount of the Job Seekers Allowance paid during the period of the prescribed element. Housing costs included in a Job Seekers Allowance award, ie mortgage interest and fuel bills are included in the amount to be recouped. As the prescribed element is from the 07/11/98 to 09/12/99 Job Seekers Allowance paid in that period will be recouped. Your claim to Job Seekers Allowance was for the period 14/12/98 to 04/03/99 and the amount of Job Seekers Allowance paid in this period was £611.40 this amount to be recouped. As you also received Income Support in the dates of the prescribed element, you would need to contact Income Support for this amount."
[36]By a further letter dated 30 November 2000 the Benefits Agency further informed the Applicant as followed:
"Ref to your letter dated 19.11.00. Our records show that you have received £15.95 Income Support from 7.10.98 – 17.12.98."
[37]The Applicant asserts that having regard to those letters all that Turner Coulston have to pay to the Benefits Agency are the sums of £611.40 and £15.95 referred to in those letters.[38]Notwithstanding the leave that was given to the Applicant to bring her cross-appeal, we do not think that we have any jurisdiction to resolve any dispute involving the Benefits Agency as to the operation of the 1996 Regulations.[39]We will however express our views because we heard some argument on the points advanced on the cross appeal and carried out some research in respect of them. In our view:(1) The confusion may have arisen because the copy of the Notification of Recoupment form we have shown does not include (as it should) an explanation of Regulations 8 and 9 of the 1996 Regulations.(2) The relevant Regulation is Regulation 8 of the 1996 Regulations (and indeed we express some surprise that Turner Coulson, as Solicitors, have not checked this for themselves).(3) That Regulation sets out the mechanics of recoupment and as appears therefrom shows that it is to be initiated by the Secretary of State serving on the employer a Recoupment Notice (we were not shown any such Recoupment Notice).(4) Regulation 8(2) makes it clear that the appropriate amount for recoupment is whichever is the less of (a) the prescribed element or (b) the amount paid by way of or paid as on account of jobseekers allowance or income support to the employee.(5) Regulation 8 also contains time limits.[40]It therefore seems to us that Turner Coulston should consider their position having regard to Regulation 8 and, if they consider it appropriate, clarify it with the Benefits Agency.[41]It follows from what we have said that we are of the opinion that the view Turner Coulston expressed before the County Court that the effect of the 1996 Regulations was that they were to pay the sum of £6,945.94 to the Benefits Agency is wrong.[42]In the exceptional circumstances of this case, if further problems arise as to what should be paid to the Applicant, we give both parties liberty to apply to mention the matter to me sitting alone at this Tribunal and if I am not available to another judge sitting at this Tribunal.