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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Gosselin -v- Minister for Social Security [2016] JRC 032 (04 February 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_032.html Cite as: [2016] JRC 032, [2016] JRC 32 |
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
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Between |
Jeremy Patrick Michael Gosselin |
Representor |
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And |
Minister for Social Security |
First Respondent |
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And |
Her Majesty's Attorney General |
Second Respondent |
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IN THE MATTER OF THE REPRESENTATION OF JEREMY PATRICK MICHAEL GOSSELIN
Mr J. P. M. Gosselin appeared in person.
Advocate G. G. P. White for the First and Second Respondents.
CONTENTS OF THE JUDGMENT
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Paras |
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1. |
Introduction |
1-2 |
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2. |
The statutory framework |
3-18 |
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3. |
Chronology of events |
19-60 |
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4. |
Decision |
61-65 |
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5. |
Other observations |
66-67 |
judgment
the master
1. This judgment represents my detailed written reasons in respect of whether the representation issued by the representor should be determined by way of an application for leave to appeal or whether the representation is an application for judicial review and therefore directions should be given to allow the respondents to contend that the representation should be struck out as being brought significantly out of time. Although the representation is lengthy, the representation ultimately sought the quashing of various decisions taken by the Social Security Department which had the effect of ruling that the representor was not entitled to income support payments from the Social Security Department. I set out later in this judgment a chronology of the decisions taken by the Social Security Department, the effect of these decisions, and what steps the representor took to appeal these decisions to the Social Security Tribunal. It is to challenge these decisions of the Social Security Tribunal that the representor presented his representation to the Royal Court.
2. The issue I had to determine was the appropriate procedural route in respect of the matters raised by the representation following the Royal Court referring the matter to me for directions.
3. I start by setting out the relevant statutory framework applicable to claims for income support. The legal basis for income support is found in the Income Support (Jersey) Law 2007 ("2007 Law"). Articles 2 and 3 provide as follows:-
4. The issue in the present matter is a challenge to the Social Security Department determining that the representor did not meet their requirements that he was available for and actively seeking full-time remunerative work.
5. Article 4 of the 2007 Law provides that claims for income support are to be made to the Minister for Social Security ("the Minister"). The manner in which such claims have to be made can be prescribed by Order (see Article 4(3)).
6. Article 5 of the 2007 Law sets out that income support is a weekly allowance made up of a basic and special payment.
7. Article 5(4) empowers the States to make regulations setting out the criteria to be used when determining to which components of income support a household is entitled.
8. Article 9 of the 2007 Law provides that Orders may be made by the Minister for the determination of any claim for income support. Such orders can also provide for appeals to the Social Security Tribunal ("the Tribunal") established under schedule 4 of the Social Security (Jersey) Law 1974 and for appeals from the Tribunal on questions of law to be made or referred to the Royal Court. In fact regulations pursuant to the 2007 Law were first approved by the States in 2007 ("the 2007 Regulations"). These 2007 Regulations have been amended on a number of occasions, but it is not necessary to set out these amendments for the purposes of this decision. However, on 15th October, 2013, Regulation 133/2013 was passed by the States which introduced Articles 4, 5, 5A, 5B, 5C, 5E and 5F to the 2007 Regulations which are material to the representation and which are as follows:-
9. The Income Support (General Provisions) (Jersey) Order 2008, was approved by the Minister on 25th January, 2008, ("the 2008 Order"). Again this order has been amended on numerous occasions. In relation to the representation, the relevant provisions are those in force as at 1st January, 2015, save in respect of one subsequent amendment which I set out later in this judgment.
10. Paragraph 17 of the 2008 Order as at 1st January, 2008, provided that any appeal to the Social Security Tribunal should be in accordance with the procedure for appeals to the Tribunal set out in Part 2 of the Social Security (Determination of Claims and Questions) (Jersey) Order 1974 ("the 1974 Order").
11. Paragraph 18 of the 2007 Order allows for an appeal to the Royal Court on a question of law against a decision of the Tribunal.
12. Paragraph 9 of the 1974 Order provided that any appeal had to be made to the Tribunal within 14 days of receiving notification of any decision. If an appeal was made outside the 14 day period but within 28 days the appeal could still be made with the consent of the chairman of the Tribunal.
13. Paragraph 14(1) of the 1974 Order confirmed that any person aggrieved by a decision of the Tribunal could appeal to the Royal Court on a point of law. This appears to duplicate paragraph 18 of the 2008 Order. Paragraph 14(2) of the 1974 Order also gave the Tribunal or a determining officer power to refer any point of law to the Royal Court. Until March 2015, neither paragraph 14 of the 1974 Order and/or paragraph 18 of the 2008 Order contained any time limit by which a person aggrieved has to appeal to the Royal Court on a point of law.
14. On 5th March, 2015, the Minister for Social Security approved the Social Security Health Insurance and Income Support (Miscellaneous Provisions) (Jersey) Order 2015 ("the 2015 Order"). Paragraph 14 of the 1974 Order was replaced with the following:-
15. Article 18 of the 2008 Order was replaced with the following:-
16. In both provisions, an appeal to the Royal Court can now only be made with leave of the Tribunal or, if the Tribunal refuses leave, with leave of the Royal Court. Any application for leave to appeal to the Royal Court firstly has to be made to the Tribunal within 4 weeks of the date of the Tribunal's decision. Any application for leave to appeal to the Royal Court, the Tribunal having refused leave, has to be made within such a period as might be specified by Rules of the Royal Court. However, no such Rules have been approved. There is therefore at present no time limit by which an application for leave to the Royal Court has to be made, as long as an application was made in time to the Tribunal for leave to appeal to the Royal Court even if that application for leave to appeal was refused by the Tribunal.
17. Part of the grounds relied upon by the representor in his representation concerned breaches of his human rights. I therefore also refer to Article 5 of the Human Rights Law (Jersey) Law 2000 which provides as follows:-
18. Article 8(1) of the Human Rights (Jersey) Law 2000 provides as follows:-
19. I now set out a chronology of the events which have led to the representation.
20. On 29th January, 2014, the representor was notified by a letter from the Social Security Department that he had failed to attend an appointment with Ms Susan Wright of the Back to Work Team, the determining officer of the department on 28th January, 2014.
21. He therefore received a formal warning pursuant to Article 5A of the 2007 Regulations ("the Warning"). He was informed the Warning would remain in force for 365 days and any breach would result in the penalties set out in Regulation 5B(2) The letter stated:-
"Any breach of this order resulting in following penalties being imposed:-
Breach 1 - your adult component will be removed for 14 days
Breach 2 - your adult component will be removed for 28 days
Breach 3 - (and any Subsequent Breach) - all Income Support payments to your household will cease to be made.
The 365 days of the formal warning will also be extended from the date of each Breach."
Mr Gosselin contends this letter did not necessarily explain the effect of a breach 3.
22. To avoid a penalty being imposed the representor was also required to attend before Miss Wright on Friday, 7th February, 2014, at 12pm.
23. He was also notified of his rights to have the decision to issue the Warning reconsidered.
24. Within the 7 day period contemplated Mr Gosselin made a request for the decision of Miss Wright to be reconsidered. The decision was reconsidered by Mr Ben Jones who was described as the second determining officer and also part of the Back to Work Team. He upheld Ms Wright's decision, which was communicated to the representor by a letter, also dated 7th February, 2014.
25. The representor failed on 7th February, 2014, to attend before Ms Wright as required by her letter dated 30th January, 2014.
26. On 10th February, 2014, the representor was therefore written to and informed that he would be deprived of the basic component of income support for 14 days because a breach had occurred, namely a failure to attend an appointment on 7th February, 2014, ("Breach 1").
27. The letter also informed the representor of the consequence of any further breaches and the representor was required to attend for a further appointment on Monday, 17th February, 2014, at 10am.
28. The representor failed to attend the meeting with Ms Wright on 17th February, 2014.
29. On 19th February, 2014, the representor, due to his failure to attend on 17th February, 2014, was notified that the basic component of his income support claim would be removed for 28 days. In this judgment I refer to this notification as Breach 2. The effects of any subsequent breaches and the right for redetermination and to appeal were explained.
30. The representor was required to attend a further interview with Ms Wright on Monday, 24th February, 2014.
31. On 21st February, 2014, the representor was notified by Ms Julie Floyd of the Back to Work Team that she had carried out a reconsideration as second determining officer of the finding of Breach 1 dated 10th February, 2014. He was informed of his rights to appeal this decision. While the representor appealed this decision he only did so more than 28 days after being notified of the reconsideration and accordingly his appeal against Breach 1 was out of time by reference to paragraph 9 of the 1974 Order.
32. On 23rd February, 2014, the representor issued his appeal against the issue of the Warning. I refer to this appeal as Appeal 1.
33. On 6th March, 2014, Ms Cindy Stopher-Richford wrote to the representor informing him of her decision as second determining in respect of Breach 2. She concluded that the Breach 2 should stand and again informed the representor of his right to appeal.
34. On 10th March, 2014, the representor failed to attend an interview with Ms Wright.
35. On 14th March, 2014, the representor was informed that a Breach 3 Notice would be imposed depriving him of his entire claim for income support due to his failure to attend on 10th March, 2014. In respect of Breach 3 the letter of 14th March, 2014 stated:-
"Breach 3 - the entire Income Support claim which you are part of will close and NO benefit will be paid. For the avoidance of doubt, this will result in all components of your claim being stopped in respect of every member of your household."
36. The letter also explained that the warning period of 365 days would run from the date of the letter of 14th March, 2014, and then went on to say:-
"To have your claim reinstated you must immediately contact your Personal Adviser, Mentor or Job Coach to discuss what actions you need to take for this to happen. As a minimum you will be required to fully engage with the Department for 6 consecutive weeks."
37. I observe that while paragraph 5B(4) of the 2007 Regulations provides that where a Breach 3 has occurred, a person is deprived of benefit for 42 days, the letter of 14th March, 2014, appears to say something different. Accordingly, there is an issue as to whether benefit is restored on the expiry of a 42 day breach period, as long as an applicant is available for and seeking work on the expiry of the 42 day period, or whether an applicant has to satisfy the Social Security Department that he was available and actively seeking work during the 42 day period notwithstanding the withdrawal of income support. The latter approach could lead to income support being withdrawn for a much longer period than 42 days. This is what happened and Mr Gosselin challenges how long he was deprived of income support. He also relies on the fact that the latter approach was only authorised by an amendment to Regulation 5B (4) that came into force on 30th June, 2015.
38. On 23rd March, 2014, the representor requested a redetermination of the Breach 3 Notice issued on 14th March, 2014.
39. On 28th March, 2014, the representor was notified by Mr Peter Fosse of the Long Term Unemployment Unit, as second determining officer that he had concluded that the Breach 3 notification should stand and the representor was again notified of his rights of appeal.
40. Also 28th March, 2014, the representor appealed in respect of the Breach 1 Notice, but as I have recorded above this appeal was out of time.
41. On 2nd April, 2014, the representor completed an appeal in respect of Breach 2 which I shall refer to as Appeal 2.
42. On 13th April, 2014, the representor issued an appeal against Breach 3 which I refer to as Appeal 3.
43. On 28th May, 2014, the Tribunal dismissed the Appeal 1. Detailed written reasons were given by the Tribunal on 3rd July, 2014.
44. On 29th September, 2014, the Tribunal heard Appeal 2. Although the heading refers to Breach 2 and 3 it is clear from the contents of the Tribunal's reasons that the appeal was in respect of Breach 2.
45. On 3rd November, 2014, the Tribunal gave its detailed written reasons for dismissing Appeal 2. The Tribunal's written reasons recorded the representor's contentions that he wished the panel to refer issues of law in relation to the validity of the Warning to the Royal Court. He contended that the Tribunal could not reach a decision in relation to Breach 2 until after the issues of law had been dealt with. It is not clear from the Tribunal's reasons what these issues of were law but the Tribunal did reach the conclusion at paragraph 4 on page 7 of its decision that there were no issues of law which it felt had to be referred to the Royal Court.
46. On 5th November, 2014, the Social Security Department, through Mary Brooks as determining officer, wrote to the representor informing him that he had breached the warning initially issued on 29th January, 2014, by failing to attend a job club at 3pm on 31st October, 2014. Accordingly, his income support claim was withdrawn and the warning period was extended for a further 365 days, from the date of the letter of 5th November, 2014, was received. This is referred to as Subsequent Breach 3. The letter further stated as follows:-
"If you wish to have your claim reopened, please contact me immediately. You will be required to actively seek work for 42 consecutive days. Once your claim is reopened, further failures to actively seek work will result in another Breach 3 Notice being issued."
47. On 24th November, 2014, Mr Thomas Cairns as determining officer wrote to the representor informing him that he had carried out a reconsideration of Subsequent Breach 3 and upheld the decision reached on 5th November, 2014.
48. On 6th December, 2014, the representor issued an appeal against Subsequent Breach 3, which I refer to as Appeal 4.
49. On 6th March, 2015, the 2015 Regulations came into force altering the provisions in respect of rights to appeal to the Royal Court as set out at paragraph 14-16 above.
50. On 13th May, 2015, the Tribunal dismissed Appeal 3. Detailed written reasons were given on 9th June, 2015.
51. In its reasons the Tribunal noted that the representor's submissions that the 2007 Law did not refer to any power to sanction individuals and the representor's uncertainty whether the 2007 Law permitted the imposition of sanctions by regulation. At page 4 of the Tribunal judgment the Tribunal stated in response to this challenge that the Tribunal:-
".. is empowered under the statute which is appointed to deal with submissions of law, but that is that is in relation to the determination under appeal, and it is not for the Tribunal to decide on the validity or otherwise of subordinate legislation, as it was invited to do by the Appellant. That is a matter for the Royal Court. The Tribunal takes the legislation as being valid on the face of it."
52. The appeal was dismissed. No referral of any question of law to the Royal Court occurred.
53. On 3rd July, 2015, Appeal 4 against the issue of the subsequent second Breach 3 Notice was heard and was dismissed. Detailed written reasons were given on 7th August, 2015.
54. On 6th July, 2015, the representor wrote to the Tribunal setting out that in respect of Appeals 1 and 2, he did not need leave to appeal to the Royal Court, but as an alternative asked for leave, if it was necessary to do so, and also asked for leave to appeal in respect of Appeal 3.
55. On 28th August, 2015, the representor applied to the Tribunal for leave to appeal in respect of the Appeal 4 to the Royal Court.
56. On 22nd September, 2015, in respect of Appeal 1 the Tribunal agreed that no leave to appeal was required.
57. On 6th October, 2015, the Tribunal for the same reasons for Appeal 1 agreed that no leave to appeal was needed in respect of Appeal 2.
58. On 28th October, 2015, in respect of Appeal 3 the Tribunal refused leave to appeal.
59. On 5th November, 2015, the Tribunal refused leave to appeal in respect of Appeal 4.
60. On 6th November, 2015, Mr Gosselin's representation was presented to the Royal Court and subsequently referred to me for directions.
61. The fundamental issue raised by Advocate White was whether the representor was in reality making an application for judicial review. If he was, Advocate White wished to contend that such an application was significantly out of time and ought to be struck out. Alternatively if the application was an application for leave to appeal Advocate White wished directions to be given for any application for leave and any appeal to be determined promptly.
62. The conclusion I reached was that the remedy of judicial review, was a remedy of last resort and as a matter of discretion the Royal Court should not hear a matter by way of judicial review where there was an effective alternative remedy. In Planning Committee v Le Lesquende [1998] JLR 1 at page 13 line 6 to 19 the Court of Appeal stated as follows:-
63. In Syvret v Attorney General and the Constable of Grouville [2011] JCA 146, Beloff J. A. in setting out the history of judicial review in Jersey, at paragraph 25.(iii) stated:-
64. In this case I was not satisfied that other available remedies had been exhausted. In respect of Appeals 1 and 2 there is a right of appeal without any time limit to raise points of law with the Royal Court. In respect of Appeals 3 and 4, until rules of court are produced, there is an unlimited right of to seek leave to appeal on points of law from the Royal Court. Other available remedies to the representor have not therefore been exhausted and are available. Accordingly, I concluded it was not appropriate to give directions for a strike out hearing to take place on the basis that the representor should have applied for a judicial review because the representor has other options available to him.
65. I therefore gave directions for the representation to proceed to appeal in respect of Appeals 1 and 2 and the representation to be treated as an application for leave to appeal in respect of Appeals 3 and 4. However, I also directed that the appeals and the application for leave to appeal be heard together. Although this step is unusual, in the view of the chronology set out above I do not consider it possible to separate out the representor's criticisms of Appeals 1 and 2 from his applications for leave to appeal in respect of Appeals 3 and 4. Each of the appeals is part of an overall story where the representor has expressed his dissatisfaction about withdrawal of income support. I therefore directed that both the appeals and the applications for leave to appeal should be heard together. Finally, I record that I indicated to the parties at the outset of the hearing that this was my view and neither party objected to the matter being dealt with in this manner.
66. In view of the papers filed before me it is right that I make the following additional observations for the parties and for the assistance of the Royal Court:-
(i) As noted at paragraph 37 above, there is an issue about whether a breach 3 prior to 30th June, 2015, simply means that an applicant is deprived of income support for 42 days or whether an applicant has to show, during the 42 day period, even though the applicant is not entitled to income support, that he is actively seeking work.
(ii) To the extent that the representation raises human rights arguments, I considered that such arguments can be raised in the context of an appeal and human rights concerns did not have to be raised in an application for judicial review. I reached this view by reference to Article 8(1)(b) of the Human Rights (Jersey) Law 2000, which sets out that a person who claims that the States Assembly has passed subordinate legislation which is incompatible with a convention right, may rely on the Convention Rights in any legal proceedings. This means the Royal Court has power under Article 5 of the Human Rights law, if satisfied it is appropriate to do so, to make a declaration of incompatibility in any appeal under the 2007 Law as well as on an application for judicial review.
(iii) Thirdly, I felt it was arguable that the Royal Court had power to set aside subordinate legislation which the States was not authorised to pass by a law. This is whether or not such legislation is Human Rights compliant. Advocate White expressly reserved the right to argue the contrary.
(iv) Should the Tribunal have referred a challenge to the 2007 Regulations to the Royal Court.
67. In light of my conclusion that there is an alternative remedy to judicial review available and having directed that the appeals and the applications for leave to appeal should be heard together, I directed the representor to file any evidence by affidavit he would wish to file within 28 days, together with his skeleton argument and authorities. The respondents were to file their affidavits, if any, and their skeleton arguments and authorities within a further 28 days.
Income Support (Jersey) Law 2007.
Social Security (Jersey) Law 1974.
Income Support (General Provisions) (Jersey) Order 2008
Social Security (Determination of Claims and Questions) (Jersey) Order 1974.
Social Security Health Insurance and Income Support (Miscellaneous Provisions) (Jersey) Order 2015.
Income Support (Miscellaneous Provisions) (Jersey) Order 2015.
Human Rights Law (Jersey) Law 2000.
Planning Committee v Le Lesquende [1998] JLR 1.
Syvret v Attorney General and the Constable of Grouville [2011] JCA 146.