Successful, delayed ASE Manadatory Reconsideration template

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ASE Mandatory reconsideration submission - JSA regulations.

Date:
Appellant:    
Address:
National Ins. No:

Respondent:
Secretary of State

This is a request for an urgent reconsideration against the decision made by the Secretary of State on X that I was not entitled to JSA for the period X to X inclusive; because I was not deemed to be actively seeking work.

I did not ask for a reconsideration at the time, because I did not realise that the JCP official failed to follow DWP’s procedure.

I understand I still have the right to appeal (ref. R(CJ) and SG v Secretary of State for Work and Pensions (ESA): [2017] UKUT 324 (AAC) ; [2018] AACR 5)

Background:

When I attended the Jobcentre on X I provided my work coach with my job search evidence.

I was not asked any questions as per DWP policy and procedure.  Therefore, I was not given fair access to justice.

Ref: “Take a statement from the claimant, using the relevant stencil from DART. Ensure the claimant’s reasons are fully covered.”

https://www.whatdotheyknow.com/request/182400/response/448565/attach/6/FOI%205109%20JSA%20Availability%20and%20ASE.pdf

I believe I can be treated as being actively seeking employment in particular circumstances, such as domestic emergencies, further details as follows:

1. Consideration of individual circumstances to determine reasonable prospects

I ask the Decision Maker to consider my full circumstances, which Jobcentre Plus are duty bound to consider in terms of S7 of the Act. S7(1):

[Add your circumstances here]

Take advice or ask for help here.

[removed for privacy reasons]

2. The legislation & case law
The duty to actively seek work is not in any case to be found in the job seekers agreement but in S7 of the Act. S7(1) provides:

“a person is actively seeking work if he takes in that week such steps as he could reasonably be expected to have to take in order to have the best prospects of securing employment.”

2. More detail is set out in regulation 18 of the Regulations. Regulation 18(1) provides that:

“… a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week.”

Reference: para 10 & 11 CJSA/1814/2007
http://www.bailii.org/uk/cases/UKSSCSC/2007/CJSA_1814_2007.html

Para 9:
What steps must be taken?
The first error made by both the adviser and the tribunal is that they applied a negative test, not a positive test. The law imposes a test that asks what the claimant did. They looked at what C did not do, not what he did do.

Para 13:
“Further, there is nothing in the Act or the Regulations requiring that a claimant must comply with everything in the Agreement. The reverse is the case. The agreement must comply with the law. To be valid, a jobseeker’s agreement must comply “with the prescribed regulations in force”: section 9(1) of the Act. The pattern of the legislation is that a jobseeker’s agreement must comply with the test of actively seeking work in sections 1(2)(c) and 7 of the Act and regulation 18 of the Regulations and not the other way around.”

Para 14:
“That is illustrated by this appeal. C was required by his Agreement to take 6 steps each week and several other steps from time to time. That is clearly more steps than the regulation requires of him to meet the test of “actively seeking work”. And it is more steps than the Agreement asked him to record. On the facts, the secretary of state's representative now accepts that C took four steps in the week and that those four steps met the test in section 7(1).”

Para 15:
The questions to be asked where it is alleged that someone is not actively seeking work are those following from section 7(1) and regulation 18(1), not from the agreement. They pose three questions, to be answered by the claimant’s actions that week:
(a) Should the claimant be expected to take at least three jobsearch steps that week, or is it reasonable that only one or two be taken?
(b) What steps were taken?
(c) In the light of that reasonable expectation and those findings, were the steps taken by the claimant “such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment” (section 7(1))?

If the steps by the claimant taken meet that test, it is irrelevant that the claimant
did not also take some other step, whether or not it is in the jobseeker’s agreement.

3. Consideration of what I did to seek employment:

It appears from that the Decision Maker was not provided with all the information & evidence

X – X (benefit week in doubt)  

Steps taken


Total 19 steps

My Jobseeker's Agreement (renamed claimant commitment) states:

Use jobsites and employer websites to search and apply for jobs I am able to do (daily).

Log into my 'Find a Job' account to search and apply for jobs I am able to do (daily).

Contact employers directly to ask about and apply for jobs I am able to do (Ongoing).

Ask family, friends and former colleagues about vacancies and apply for those I am able to do (Ongoing).

Respond promptly to any contact from employers and jobsites (Ongoing).

Make sure I have a good quality and up to date CV that I can change as needed for any jobs I apply for (Ongoing).

Continue to attend the Jobcentre to show my work coach what work search activities I have done (Weekly).

Total no. of steps = 14 in each week.

5.1 On the balance of probabilities it is reasonable to assume each job search does not always result in finding a suitable job to apply for.

The JSA regulations state that most Jobseekers are required to take at least 2 steps per week to satisfy the reasonable test of actively seeking work (Regulation 18(1)).

4. Determination of reasonable prospects

It is impossible for Jobcentre advisers to accurately determine the best and most reasonable steps as per S7 of the Act. S7(1) for each Jobseeker as they cannot be competent in every occupational area (there are more than 2000) or the labour market for each industry and location.

5. Consideration of mitigating factors, errors in law and in fact

See my circumstances above.

Legal professionals will know that the Jobseeker’s Agreement is not a contract, but a fluid plan of suggested activities, which can change for a variety of reasons from week to week. For example, due to the prevailing labour market conditions, personal circumstances, technology issues, religious and bank holidays etc. This is verified within DWP’s Decision Makers’ Guide. Further, Commissioner Williams describes the requirements of law in regards to the actively seeking employment regulations accurately and succinctly. Case law must be applied by the Tribunal judge as well as the DWP Decision Maker.

6. Absence of evidence by DWP

a) The steps I took were unreasonable for my circumstances.  
b) I must comply with all the steps within the Jobseeker’s Agreement (the duty to seek work is a weekly test and not a daily one and there is no requirement to seek work daily).
c) I have not applied for a reasonable number of jobs that gave me the best prospect of securing employment work each week given the circumstances.
d) I must apply for all jobs
e) I failed to take at least 2 steps to look for work.
f) My work coach failed to ask the relevant questions as per the DART procedure to obtain the relevant evidence and information.

7. Conclusion

I submit for these reasons and the circumstances that prevailed at the time, I did all that could reasonably be expected of me in terms of S7 of the Act or Regulation 18 and therefore that JSA remains payable during the period in question and so I ask the Decision Maker to revise the decision.

Evidence

DWP has a copy of my job search and JSACC

Signed

copyright: JSSA & Non Deficere

Related links:
https://respectfulbenefits.forumotion.com/t3349p25-jsa-sanction-and-conversion-to-uc