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

I can clear this issue out of the way first, before tackling the more substantial issue of whether within the context of the statutory schemes set out above the A4e official was, in giving (wrong) advice or information to the appellant in early 2012, an officer of the Department for Work and Pensions.

This, what I have termed ‘secondary issue’, arises from a concern I raised when giving the appellant permission to appeal. I put the concern this way when I gave permission to appeal.

“In addition it may be arguable that the First-tier Tribunal erred in law in giving confusing reasoning as to the role of the Jobcentre official in that, contrary to what is said elsewhere in the statement of reasons, in paragraph 11 of the statement it seems the tribunal took the view that the Jobcentre official did advise [the appellant] that he could not normally claim JSA whilst waiting to take up a reasonable offer of work.”

The focus of my concern was on the sentence from paragraph 11 of tribunal’s statement of reasons: “The officer confirmed that he was under an obligation to take up a reasonable [offer of employment], that he could not normally claim JSA whilst waiting to do so and that he could not claim without continuing his job search”. I have added the underlining to emphasise the words of concern.

This issue has not really featured to a great extent on the arguments on the appeal. However, on reflection, and in agreement with the Secretary of State, I do not consider the tribunal committed any material error of law in the way it expressed itself in paragraph 11 of its statement of reasons. That paragraph has to be read with the rest of the tribunal’s reasoning and fact-finding, particularly that which have I set out in paragraph 14 above. In particular, the use of the word “normally” by the tribunal has to be read in the context of the tribunal’s finding of fact that what the Jobcentre official had in fact said to the appellant was that “he was not entitled while waiting to take up a job offer unless he continued his job search” (my italics added for emphasis). Thus what I take the tribunal to have meant by “normally” in paragraph 11 of its reasoning was the situation where on accepting a job offer people cease looking elsewhere for work.

This therefore leaves the key issue on the appeal. It was undisputed before me that the information or advice the A4e official gave to the appellant in early 2012 was wrong in that it told the appellant that he had no option but to cease claiming jobseeker’s allowance once he had taken up the offer of employment as a taxi driver but was waiting for the necessary clearance to be able to carry out that job. For the reasons canvassed above in respect of the Jobcentre Plus official, the correct information or advice would have been that the appellant could have remained entitled to jobseeker’s allowance if he continued to show that he was available for and actively seeking work.

The tribunal would appear not to have considered whether the A4e official was an officer of the DWP for the purposes of regulation 19(5)(d) of the Claims and Payments Regs. The tribunal instead seems to have rejected the A4e official having been an adviser giving written advice under regulation 19(5)(e) of the same regulations (which is not challenged on this appeal and would seem plainly to be correct) and then introduced a test of reasonableness in respect of the appellant’s assumption that the A4e official was an officer of the DWP. I do not see on what basis regulation 19(5)(d) introduces such a test of reasonableness. The relevant test under regulation 19(5)(d) was, and is, whether the wrong or misleading information was in fact given by an officer of the DWP. The test of reasonableness under regulation 19(4)(b) only applies if the factual circumstance under 19(5)(d) has arisen. A test of reasonableness cannot as a matter of the proper construction of regulation 19(4) and (5) turn the factual question of whether the information giver was an officer of the DWP into whether the claimant reasonably considered the information giver was such an officer.

Be that as it may, the tribunal will only have committed a material error of law in the decision to which it came if on analysis the A4e official in giving the above wrong information was doing so as an officer of the DWP. In my judgment, he was not. My reasons for so concluding are as follows.

Even taking the correct starting point as being the view in paragraph 14 of R(IS)3/01 that “the words of regulation 19(5)(d) are not to be given any artificially restricted meaning”, the words “an officer of the [DWP]” are plainly intended as being words of limitation. It is not any information whosoever its provider may be that can found an identified reason which may provide a statutory excuse for a late claim for benefit. The information has to be given by an officer of the DWP.

In R 1/01 (IS)(T), a Tribunal of Commissioner in Northern Ireland concluded that the limitation was such in the similar legislation they were considering that it could not even extend to a New Deal adviser as that person was not an “officer of the Department for Social Development” but was instead an officer of the “Department of Higher and Further Education, Training and Employment”. (By contrast, at the time the relevant legislation in Great Britain (i.e. regulation 19(5)(d)) covered information given by an officer of the Department of Social Security or of the Department for Education, and so potentially could have covered a New Deal adviser.)

However in CIS/610/1998 Mr Commissioner Williams (as he then was) concluded that a security guard employed at the local (then) DSS office “could as a matter of law be considered an officer of the Department [of Social Security] on the ordinary meaning of [the term officer]”. The Commissioner reasoned as follows:

“9.

First, was this security guard “an officer” of the Department of Social Security? This is clearly general language and would therefore cover, for example, the Department's press officers and telephone advisers. But does it cover a sub-contracted security guard? “Officer” is not used here in the technical senses of someone of a superior rank in a military or similar force, or individual grades in the Home Civil Service, or those working directly as employees in the Department of Social Security rather than for its executive agencies or others, nor in the sense that a Minister of State is an officer of the Department but not an employee. It means someone carrying out public functions for the Department. A security guard may not in all cases come within that description, but on the facts this security guard could have done so. Whether he did is, however, a question of fact.

10.

According to the record of proceedings, he was organising the queuing of claimants, was wearing a jacket with “Benefits Agency” on the back, and was logging people into an official log book and collecting documents. He was giving advice to claimants, or at least to this claimant. In other words, his appearance, his location, his actions, and his words may all have reasonably suggested that he had authority to do what he was doing, and that it was reasonable for a claimant to ask him for help. If that authority was not actual, then it is arguable that on the facts the guard was acting in a way that suggested to third parties that he was authorised to act. The issue is whether the representation by conduct of the Department was sufficiently clear and unequivocal in this situation to satisfy the tests for apparent authority of an agent. The tribunal found that this was not so, simply because, without explanation, the guard was “not to be considered to be an officer of the Department”. In my view, on the facts recorded in the record of proceedings and not challenged at any point in the case papers, the guard could as a matter of law be considered an officer of the Department in the ordinary meaning of that term, and the tribunal erred in law in not considering the issue adequately.” (my underlining added for emphasis”

I have some misgivings about aspects of this reasoning, or at least the language in which it is expressed. The language of “someone carrying out public functions for the Department” may arguably be too imprecise and lead into difficulty if it allows any sub-contractor to be clothed with the putative title of “officer”. What, for example, of persons employed by a private cleaning firm who are placed with a DWP office to carry out on site cleaning of public office areas? On one analysis they may be said to be carrying out public functions, yet nothing in their contracts of employment with their employer or the employer’s public service contact with the DWP is likely to suggest they have any information giving function in respect of the DWP’s statutory functions of determining entitlement to benefit.

The analysis in CIS/610/1998 also does not address where else in the statutory social security schemes the term “officer of the Department” was being used at the relevant time, or has since been used. I accept that the analogy may be somewhat weak, however at the time with which the decision in CIS/610/1998 was concerned the test for “official error” under regulation 99(2) and (3) of the Housing Benefit (General) Regulations 1987 (which formed part of the test for whether of an overpayment of housing benefit was recoverable) was in terms that an “overpayment caused by official error” included:

“an overpayment caused by a mistake made……by the appropriate authority or by an officer or person acting for that authority or by an officer of the Department of Social Security or the Department of Employment acting as such…..”

If the legislature had sought to cast the net on what may be an arguably wider basis to alleviate claimants from the consequences of what may be considered broadly as mistakes made by (albeit defined) government officials, that might arguably suggest that the singular wording of “officer” used in regulation 19(5)(d) to somewhat similar effect (i.e. to insulate or relieve claimants from mistakes made in the information provided to them) was and is to be given a narrower construction.

The answer to the concerns I have expressed about this decision may lie in the second quoted paragraph from CIS/610/1998 and its consideration of all the facts as recorded as part of the process of determining whether the security guard could (but need not in fact) have been considered as a matter of law as an officer of the Department. It is perhaps surprising that the decision does not address the terms under which the security guard was employed as a useful field for enquiry. However that may well have been subsumed in the issues it was considered the new tribunal might need to investigate in order to determine whether the security guard had actual or apparent authority to act on behalf the Department as one of its officers giving information related to claims for benefit.

Mr Cooper, for the Secretary of State, said in oral argument that he was not sure if CIS/610/1998 had been correctly decided and it had not had the Carltona principle argued out in it. As will be seen below, Mr Commissioner Williams (by then Upper Tribunal Judge Williams) revisited the scope of regulation 19(5)(d) in the context of Carltona, and in the context of alleged wrong advice given by official of an external Work Programme provider agency like A4e, in CJSA/2232/2012, and concluded it did not apply to that official.

The Carltona principle comes from the case Carltona Ltd –v- Commissioner of Works [1943] 2 All ER 560. In short it means that where a civil servant makes a decision in the name of his or her government minister, often a Secretary of State where the statute has vested the decision-making power in the Secretary of State, the civil servant acts, and is entitled to act, in the name of the minister. More fully, Lord Greene MR said this in Carltona:

“In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."

The Carltona principle was subject to a helpful explanation by Lord Reed in R(Bourgass) –v- Secretary of State for Justice [2015] UKSC 54; [2016] AC 384, where having set out the above quote from Carltona Lord Reed continued (at paragraphs 49-52):

“The Carltona principle, as it has become known, is not one of agency as understood in private law. Nor is it strictly one of delegation, since a delegate would normally be understood as someone who exercises the powers delegated to him in his own name. Rather, the principle is that a decision made on behalf of a minister by one of his officials is constitutionally the decision of the minister himself. As Jenkins J stated in Lewisham Borough Council vRoberts [1949] 2 KB 608, 629, when rejecting an argument that the principle was one of delegation:

"I think this contention is based on a misconception of the relationship between a minister and the officials in his department. A minister must perforce, from the necessity of the case, act through his departmental officials, and where as in the Defence Regulations now under consideration functions are expressed to be committed to a minister, those functions must, as a matter of necessary implication, be exercisable by the minister either personally or through his departmental officials; and acts done in exercise of those functions are equally acts of the minister whether they are done by him personally, or through his departmental officials, as in practice, except in matters of the very first importance, they almost invariably would be done. No question of agency or delegation ... seems to me to arise at all."

An official in a government department is in a different constitutional position from the holder of a statutory office. The official is a servant of the Crown in a department of state established under the prerogative powers of the Crown, for which the political head of the department is constitutionally responsible. The holder of a statutory office, on the other hand, is an independent office-holder exercising powers vested in him personally by virtue of his office. He is himself constitutionally responsible for the manner in which he discharges his office. The Carltona principle cannot therefore apply to him when he is acting in that capacity.

It is possible that a departmental official may also be assigned specific statutory duties. In that situation, it was accepted in R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254 that the official remained able to exercise the powers of the Secretary of State in accordance with the Carltona principle.

It is also possible that the performance of statutory ministerial functions by officials, or by particular officials, may be inconsistent with the intention of Parliament as evinced by the relevant provisions. In such circumstances, the operation of the Carltona principle will be impliedly excluded or limited: Oladehinde at p 303. Furthermore, the authorisation of officials to perform particular ministerial functions must in any event be consistent with common law requirements of rationality and fairness: see, for example, Oladehinde at pp 281-282 per Lord Donaldson of Lymington MR (in the Court of Appeal), and at pp 300 and 303 per Lord Griffiths.”

It was Mr Cooper’s argument that on the basis of Carltona the Secretary of State was responsible for the actions of his civil servants employed within his own Department (i.e. the DWP) and that regulation 19(5) embodies the Carltona principle. In short, if I understood the argument correctly, the regulation embodied, but importantly was limited to, the principle that the Secretary of State for Work and Pensions was responsible for her actions, and thus the actions of her officials (i.e. officers of the DWP), which were properly related to the exercise of her statutory functions of deciding claims for social security benefits, and had to be construed (narrowly) on that basis. It was for this reason that the Carltona principle does not extend to the actions of others who enter into contracts with the Secretary of State for Work and Pensions but are not civil servants.

One immediate difficulty in the application of Carltona is that the function in issue under regulation 19(5)(d) of the Claims and Payments Regs – that is, giving information related to benefit entitlement - does not arise from any duty or power expressly imposed on the Secretary of State by the corpus of social security legislation under which she and her officials operate. If the Carltona thesis is ‘embodied’ by regulation 19(5)(d), as the Secretary of State has argued in this appeal, it can only be on the basis that the duty or power on the Secretary of State, and hence her officials within the DWP, to provide information to claimants arises by way of necessary implication from the Secretary of State’s duties imposed on her by the Social Security Act 1998 (and its predecessors) to decide claims for benefit.

Section 8(1) of the Social Security Act 1998 sets out that “it shall be for the Secretary of State to…decide any claim for a relevant benefit…and…to make any decision that falls to be made under or by virtue of a relevant enactment”. Although this may on one reading only seem to identify who is to make the decision and not whether that person is under a duty to do so, on the basis of paragraphs 72-74 of R(H)3/05 such a duty must in my judgment be implied. If the Secretary of State’s Carltona argument in this appeal is correct, it arguably has to do so on the basis that the decision on the claim for the benefit brings the machinery for making claims, including late claims, under section 5(1) of the Social Security Administration Act 1992 and regulation 19 of the Claims and Payments Regs within what is to be decided on the claim, and arguably therefore by necessary implication is the source of the duty or power on the Secretary of State to provide (correct) information to claimants about benefit entitlement.

An additional or alternative argument may be that the source of the Secretary of State’s duty or power to provide correct information about social security benefits arises by necessary implication from the proper and fair administration of the social security benefits system as a whole: see by analogy paragraphs 59-65 of R(Reilly and Wilson) –v- SSWP [2013] UKSC 68; [2014] AC 453; [2014] AACR 9. That might then bring in wider legislative considerations than simply in whom the decision making functions vest under the social security legislation.

If the first argument is correct then it is inescapable that the A4e advisor was not an officer of the DWP when he gave the appellant the wrong information/advice in early 2012. This is because no decision making function under section 8 of the Social Security Act 1998 was or could have been delegated to an A4e official under sections 17A and 17B of Jobseekers Act 1995 or regulation 18 of the 2011 JSA Regs, either in respect of the sanctioning of jobseeker’s allowance for sanctionable failures in respect of the Work Programme, or the ending of entitlement to JSA when a ‘claim’ is no longer made in respect of it, or the ‘backdating’ of a new claim for JSA.

There is nothing either express or implied in the phrase “provision of facilities” in section 17B of the Jobseekers Act 1995, or anywhere else in that section, that vests any decision making function in external agencies such as A4e. Moreover, the 2011 JSA Regs make clear that the “securing that the appropriate consequence follows if a participant has failed to comply with the regulations” comes about by way of a decision by the Secretary of State (and, per Carltona, her officials within the DWP) and not by an external provider of services such as A4e: see regulations 7 and 8 of the 2011 JSA Regs set out in paragraph 19 above. Regulation 7(2) of those regulations, when read with regulation 18, makes it clear that it is for the Secretary of State, and not (here) A4e, to decide (a) whether a claimant has failed to participate in the scheme and (b) issues of good cause if there has been such a failure. It is also important to note that even the prior consideration of whether there has prima facie been a failure to participate in the scheme vests by virtue of regulation 6 and 7(1) of the 2011 JSA Regs in the Secretary of State and not the external agency; although no doubt that agency will provide evidence to the Secretary of State about alleged breaches of regulation 4.

By way of contrast, the only functions which may be exercised by the external provider or its employees instead of the Secretary of State are, broadly speaking, functions concerned with the requirements for giving notice about (a) when the scheme will start and end, (b) what the claimant will be required to do so as to participate in the scheme, and (c) the consequences of his or her failing to participate. That is plain from the limited delegation provided for in regulation 18 of the 2011 JSA Regs.

There is therefore nothing in the statutory scheme which vests any statutory decision making function in external provider agencies such as, here, A4e. On the first argument, as I have described it above, that leads to the conclusion the A4e advisor was not an “officer of the [DWP]” because it was no part of the functions delegated to him to make any decision on the appellant’s entitlement to JSA and, by implication, nor was it any part of his delegated functions to provide information to the appellant about the conditions of entitlement to JSA including whether his existing ‘claim’ should remain in payment.

Even if the alternative argument suggested in paragraph 39 above applies, I do not consider it can assist the appellant. This is because in my judgment even if the duty or power to provide information to claimants relevant to the conditions of entitlement to social security benefit arises from the good and fair administration of the social security scheme as a whole, the responsibility for that scheme and its conditions of entitlement still vests fundamentally in the Secretary of State for Work and Pensions, and I can identify nothing in the statutory provisions discussed above in relation to A4e’s functions that impliedly, by way of fairness or the needs of good administration, vests an information giving function in relation to the conditions of entitlement to jobseeker’s allowance, or any other social security benefit, in A4e or its employees.

It is noteworthy that in all the cases referred to in paragraphs 60-62 of the Supreme Court’s decision in Reilly, as well as Reilly itself, the concern was with the government providing information, and the underpinning constitutional principle was that statute law (and, I would add, by extension statutory schemes) should be made known by the government. The limited functions delegated to A4e under regulation 18 of the 2011 JSA Regs are in my judgment too ancillary to, and divorced from, issues of benefit entitlement to impose any information giving function in respect of those entitlements on A4e under the Carltona principle. As stated above, the functions delegated by the Secretary of State to A4e were limited to informing and advising the appellant about his participation in the Work Programme and had nothing to do with informing him about his entitlement to JSA.

The Secretary of State would appear to have developed a somewhat different argument based on Carltona before Upper Tribunal Judge Williams in CJSA/2232/2012. The argument seems to have been that regulation 19(5)(d) of the Claims and Payments Regs was an exception to Carltona, rather than embodying it (as was argued before me), and with a seeming acceptance (contrary to the arguments I have set out above) that external agency officials such as those employed by A4e may be “involved in the social security decision making process”.

As can be seen, however, that different argument did not assist the claimant in that appeal and for similar reasons, even if correct, cannot assist the appellant in this appeal. The argument and Judge Williams’ conclusion upon it were set out in paragraphs 23-28 of CJSA/2232/2012 as follows:

“23 Turning to paragraph (5)(d), Mr Cooper argued that this was a rule that should be regarded as an exception to the general rules about decisions in social security matters. The general principle on which the social security system works is the well-known principle of public law called the Carltona principle (after the decision of the Court of Appeal in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. See also the decision in Point of Ayr Collieries Ltd v Lloyd George [1943] 2 All ER 546). The decisions and actions of an official working under the authority of a government minister are in law the actions of the minister. So, unless different provisions are made, all actions and decisions about social security entitlements are actions of the Secretary of State. Regulation 19(5)(d) is a limited exception to this principle in recognising the role of an individual. But, he submitted, it must be confined to that context and not read too widely. It does not cover all actions taken by third parties because they are involved in the social security decision-making process.

24

This case, he submitted, is within the principle of civil law that deals with actions or decisions of those giving advice to a claimant. It is the principle of liability for negligent misstatement arising from the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller [1964] AC 465, a decision of the House of Lords. Under this principle someone who causes loss to another person by negligent misstatement may be made liable in damages to the victim. This principle was clearly applied to public authorities, which are responsible for the negligent misstatements of their officials, in Ministry of Housing and Local Government v Sharp [1970] 2 QB 223. In principle, any allegation that someone has lost benefit because of a careless statement by another should seek a remedy through an action for negligence in the civil courts. That applies both to public officials and to others. Regulation 19(5)(d) is an exception to that rule.

25

The current form of regulation 19 dates back to a rewrite of the regulation in 1997, when the period for which backdating could be allowed was reduced to the current period of 3 months. I agree with Mr Cooper that the effect of regulation 19(5)(d) is to provide a limited additional public remedy to some cases of misstatement by an official. The question remains whether someone acting for a commercial organisation to which a claimant is directed by someone in a Jobcentre can be regarded as “an officer of the Department for Work and Pensions”.

26

Mr Cooper pointed out that one answer to this is given by the letter received by the appellant and any similarly placed claimant. The relevant terms of the letter given to the appellant both in April 2010 and (I find) in July 2010 state:

Applying that to this case, I agree with Mr Cooper that an official of an independent company or organisation such as those to which the appellant was referred in this case is not within the control of the Secretary of State and its employees or staff are not acting as “an officer of the Department” when giving advice to a claimant. The practical solution is that the claimant should, as advised, go back to the Jobcentre and get advice there. The remedy for any material loss caused by negligent misstatement by such an employee or staff member is a civil action for damages against the body responsible for that employee or staff member.

So any action by staff at the agencies named by the appellant is not relevant to regulation 19(5)(d) in this case.”

As is evident from the above reasoning, as in the security guard case in CIS/610/1998, the Secretary of State’s argument in CJSA/2232/2012 still depended on answering whether the employee acting for the external work provider agency could be regarded as an “officer of the [DWP]”. On the evidence Judge Williams held, contrary to the security guard in the other case, that he could not be so regarded.

I would be inclined to the view that the test or tests set out in paragraphs 36-39 above may provide the better and more legally sound analysis for establishing whether a person is an “officer of the [DWP]”. However, even if the CJSA/2232/2012 and/or CIS/610/1998 approach is applied, it still in my judgment leads to the same conclusion that the A4e official was not acting, or to be regarded, as an officer of the DWP.

The legal background to the A4e official discharging the functions delegated to him under regulation 18 of the 2011 JSA Regs would plainly be part of the factual circumstances to consider when deciding whether he was acting as an officer of the DWP or had the authority to do so. However, as in CJSA/2232/2012, other considerations are also relevant.

The appellant took me to a number of documents he said were relevant and, he argued, showed that the A4e advisor was acting as an officer of the DWP when he wrongly advised the appellant in early 2012. I do not consider that to be the case. In fact, if anything they point the other way.

Perhaps of most importance was the “My Work Programme Agreement” entered into by the appellant with A4e in September 2011. This said that A4e would “support and challenge you to become ready for work and into employment” and “show you why you are better off work in work rather than remaining dependent on benefits”. Once the value laden language around ‘dependency’ is cut through, these statements in my judgment tell the reader little about what A4e would actually do under the agreement. Moreover, even if the “better off in work” than on benefits phrasing might be able to be construed as indicating an expertise held by A4e on the entitlement conditions for social security benefits which it would exercise under the agreement (which seems to me implausible), there is a strong contraindication in the part of the agreement covering what was expected of the appellant. This says most relevantly that the appellant was expected to “Notify your JCP advisor when you have started work and inform them that you need to sign off benefits” and “Tell your A4e advisor and JCP office of any change of circumstances”. The former condition the appellant was expected to meet seems in my judgment to point in particular to the Jobcentre Plus office as the source of information about benefits.

The rest of the surrounding documents do not advance matters in favour of the appellant. The DWP Provider Guidance statement that “DWP fund external organisations to deliver programmes that are designed to assist unemployed people gain and remain in employment” says nothing about whether those organisations can give information to unemployed people under the funded programmes about the conditions of benefit entitlement to benefits. Nor does “A4e’s Minimum Service Levels for the Work Programme”, which the Secretary of State put before me, set out any agreement for A4e to provide benefits advice.

It is for all of these reasons that the tribunal’s decision dated 17 October 2012 is not set aside and its decision stands.