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Neutral Citation Number:
Reported Number: R(JSA)1/04
File Number: CJSA 3523 2002
Appellant:
Respondent:
Judge/Commissioner: Judge C. Turnbull
Date Of Decision: 20/03/2003
Date Added: 04/04/2003
Main Category: Jobseekers allowance
Main Subcategory: other
Secondary Category:
Secondary Subcategory:
Notes: Availability for work - failure to attend interview - non-receipt of notification of interview sent by post The claimant was in receipt of jobseeker's allowance and was required to sign the jobseeker's register fortnightly on a Monday. Under the provisions of regulation 23 of the Jobseeker's Allowance Regulations 1996 ("the 1996 Regulations") he was notified that he was required to attend an interview at the Jobcentre, but gave notice that he was unable to attend because he had chicken pox. The Employment Service computer generated a letter notifying him of a fresh interview date on 25 October 2001. He attended to sign on as normal on 22 October but did not attend the interview on 25 October. A decision was made that he ceased to be entitled to jobseeker's allowance with effect from 23 October under regulation 25(1)(a) the 1996 Regulations on the ground that he had failed to attend the interview. He was informed of that decision when he attended to sign the register on 5 November, by which time he was too late to exercise his right under regulation 27 to show good cause for failure to attend within 5 days. He therefore reapplied for jobseeker's allowance and requested that his claim be backdated for the period 23 October 2001 to 4 November 2001. Backdating was refused and the claimant appealed. He contended that he had not received the letter notifying him of the interview on 25 October. The tribunal found that none of the statutory grounds for backdating the claimant's fresh claim were applicable. They treated the appeal as an appeal also against the decision that entitlement under his previous award had ceased. However, they found that the letter notifying him of the interview date fell to be treated as sent on the day it was posted by virtue of regulation 2(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. As they found as a fact that the letter had been posted, they considered that the question of whether he had actually received it was irrelevant. Held, allowing the appeal, that: 1. the tribunal was correct to treat the appeal as an appeal also against the decision that entitlement under the previous award had ceased (CJSA/2327/2001) (paragraph 6); 2. regulation 2(b) of the 1999 Regulations was not applicable to notifications under the 1996 Regulations (paragraph 7); 3. the governing provision was therefore section 7 of the Interpretation Act, which deems service of a document to have been effected if a letter containing it is properly despatched and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post (paragraphs 8-10); 4. where the time of receipt was important it was open to a claimant to prove that he had not received the notification at all and that principle applied to notifications sent to the addressee under regulation 23 of the 1996 Regulations (applying ex parte Rossi and other authorities) (paragraphs 11-15); 5. on a balance of probability the claimant in this case did not receive the letter at all, and it followed that no notification had been made under regulation 23 and therefore that he had not "failed to attend" the interview (paragraph 16); 6. the claimant therefore continued to be entitled to jobseeker's allowance from 23 October to 4 November 2001 (paragraphs 1 and 17).
Decision(s) to Download: R(JSA) 1_04 bv.doc R(JSA) 1_04 bv.doc