On Monday, three hours after Declan filed our appellant's notice in the Court of Appeal, he was admitted to Chelsea and Westminster Hospital with pneumonia. He managed to file with an hour to spare – crippled in pain. He says that at one stage he actually thought he wasn't going to make it back to me (and our bags), that he could barely walk down street steps in Temple just moments from the Royal Courts of Justice.
The court clerk says she needs to see the transcript of the previous Monday's hearing and speak to Judge Walker before she can amend the order she drew up without the leave we were granted to appeal the Judge's decision not to allow us to apply for a judicial review against the Department for Work and Pensions. It meant we only had three days to file an appellant's notice based on the order we were given, or risk having our case dismissed because Declan had not filed within seven days of the date the order was made.
Declan has asked me to blog our skeleton argument for the record:
Grounds of Appeal
Introduction
- In summary, I, the Claimant/Appellant, appeal the decision of 11 December 2006 by Mr Justice Walker to refuse me permission to apply for judicial review. I appeal on the grounds that judicial review was the correct route in the first instance due to procedural impropriety on the part of the Defendant, and that the decision of 13 September 2006 to reinstate my joint claim for Jobseeker's Allowance (JSA) was disingenuous. Further, it is submitted that the pursuance by me of the judicial review application more than a month after the decision of 27 September 2006 by Birmingham Erdington Jobcentre Plus to terminate my joint claim JSA (from 19 September) was the appropriate course of action.
Judicial review was the correct route in the first instance due to procedural impropriety on the part of the Defendant
- On 18 August 2006, my wife did not attend an advisory interview because Birmingham Erdington Jobcentre Plus refused to accept her form ES2JP "Your job search plans" as part of a Jobseeker Agreement (JSAg) for her that was current, resulting in a doubt as to her availability for work and consequent suspension of her JSA from 19 August. This ES2JP stated in answer to question 7 (page 4) that she was looking for a "temporary job" that could enable her "take up training to have a new career". (A copy of this letter of suspension is filed in the appeal bundle, p. 16.)
- Because of Birmingham Erdington Jobcentre Plus's unwillingness to accept my wife's ES2JP, I refused to participate in an advisory interview on 18 August 2006 (the second in one week) pending notification that my wife's ES2JP would be accepted by the Jobcentre in the event of non-agreement on her job search plans, resulting in a doubt as to my availability for work and consequent suspension of my JSA from 19 August. (A copy of this letter of suspension is filed in the appeal bundle, p. 15.)
- As part of my JSAg that was the subject of an advisory interview on 11 August 2006, Birmingham Erdington Jobcentre Plus accepted my ES2JP as part of a JSAg for me that was current. It verifies on page 15 that in my pursuit of a "temporary job that can enable me take up training to start my own business", I did not appear to be placing restrictions on the work I was willing to do. (A copy of this page 15 from my ES2JP, which is stamped by the Jobcentre, is filed in the appeal bundle, p. 50.)
- A prescribed requirement for a JSAg under regulation 31 of the Jobseeker's Allowance Regulations 1996 is that it shall contain any restrictions on the claimant's availability for employment. This includes any restrictions on the location or type of employment in accordance with regulations 5, 8, 13 and 17 (emphasis added). A JSAg without the ES2JP only allows for "agreed restrictions on [the] availability and/or agreed restrictions on types of work" (emphasis added). Where, therefore, my wife had placed a restriction on her availability for employment that Birmingham Erdington Jobcentre Plus did not agree with (such as on the type of employment for training purposes), the ES2JP had to be included with her JSAg for an independent decision to make a decision on her availability for work.
- Birmingham Erdington Jobcentre Plus had in essence refused to accept my wife's proposed JSAg for referral to an independent decision maker, thereby disenfranchising me the internal appeal process. Accordingly, Judicial review was the correct route in the first instance because of procedural impropriety on the part of the Defendant.
The decision of 13 September 2006 to reinstate my joint claim JSA was disingenuous - On 13 September 2006, the decision maker wrote a letter to me and another letter to my wife advising that the doubt on our availability for work had been removed, with the proviso that "there is no provision, in the law relating to jobseeker's allowance, for form ES2JP to be included in a person's JSAg". (A copy of both of these letters of reinstatement is filed in the appeal bundle, pp. 45-48.)
- On 15 September 2006, I wrote a letter to Birmingham Erdington Jobcentre Plus advising that neither my wife nor I would attend another advisory interview without confirmation in writing that my wife's ES2JP would be accepted as part of a JSAg for her that was current. (See paragraph 4 in the copy of my letter of 30 September 2006 to the Jobcentre filed in the appeal bundle, p. 32.)
- On 19 September 2006, Birmingham Erdington Jobcentre Plus wrote a letter to me and another letter to my wife advising that due to our non-attendance at an advisory interview on 19 September 2006 our JSA was suspended. (A copy of both of these letters of suspension is filed in the appeal bundle, pp. 41-42.)
- On 25 September 2006, Birmingham Erdington Jobcentre Plus wrote a letter to me advising that my joint claim JSA had been reinstated from 21 September. (A copy of this letter of reinstatement of 25 September 2006 is filed in the appeal bundle, pp. 37-40.)
The pursuance by me of the judicial review application more than a month after the decision of 27 September 2006 by Birmingham Erdington Jobcentre Plus to terminate my joint claim JSA (from 19 September) was the appropriate course of action - On 27 September 2006, Birmingham Erdington Jobcentre Plus wrote a letter to me advising that my joint claim JSA was terminated (from 19 September) because I did not attend to sign my declaration that I was available for work. This despite the fact that my sign on day was two days later on Friday, 29 September. My wife and I were obliged to sign on every second Friday (not every second Wednesday) and, in accordance with the internal appeal process, I informed Birmingham Erdington Jobcentre Plus in a letter dated 30 September 2006 of the wrongful nature of the Jobcentre's termination of my joint claim JSA. A copy of this letter was sent to the Secretary of State for Work and Pensions. (A copy of my letter of 30 September 2006 to the Jobcentre is filed in the appeal bundle, pp. 32-33.)
- In the Jobcentre's letter of termination of 27 September 2006 it states under the heading "What happens after the decision is looked at again" that "If the decision can be changed we [Birmingham Erdington Jobcentre Plus] will send you a new decision. If we cannot change the decision we will tell you why. You will still have the right to appeal against the decision." (A copy of this letter of termination is filed in the appeal bundle, pp. 34-36.)
- On 5 October 2006, Birmingham Erdington Jobcentre Plus wrote a letter to me acknowledging receipt of my letter of 30 September 2006. However, despite an additional two letters to the Secretary of State and Pensions outlining the wrongful nature of the termination of my joint claim JSA, I have never been provided with a response to my letter of 30 September. (A copy of the Jobcentre's letter of acknowledgement is filed in the appeal bundle, p. 49.)
- On 2 November 2006, I wrote in my third letter to the Secretary of State for Work and Pensions: "Please note that my wife and I are due accumulated arrears from the Department for Work and Pensions of £579.21 as of today, and that we will be homeless on the streets of London as from tomorrow." I enclosed with this letter a copy of a letter to me of 31 October 2006 from the Administrative Court Office confirming that the Court's decision of 13 October to refuse me permission to apply for judicial review would be reconsidered at an oral hearing to be held on 11 December in the Royal Courts of Justice in London. (A copy of my letter and enclosures of 2 November 2006 to the Secretary of State for Work and Pensions is filed in the appeal bundle, pp. 26-48.)
- By Birmingham Erdington Jobcentre Plus neither changing the decision of 27 September 2006 to terminate my joint claim JSA, nor telling me why the decision could not be changed, I was again denied the internal appeal process. The pursuance by me of the judicial review application more than a month after the decision of 27 September to terminate my joint claim JSA therefore was the appropriate course of action.
- Accordingly, the Court should grant me permission to apply for judicial review.
