[1996] NISSCSC C8/96(IS) (4 June 1997)
Decision No: C8/96(IS)
Decision No: C3/97(IS)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992
INCOME SUPPORT
Appeal to the Social Security Commissioner
on a question of law from the decisions of the
Omagh and Londonderry Social Security Appeal Tribunals
respectively dated 27 March 1996 and 4 April 1996
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"I respectfully submit that the Tribunal have erred in law in thefollowing respects:-
In the first instance the Tribunal have awarded Income Support
from 23 December 1995 whereas Miss D...'s claim was made on
25 December 1995. Although this error may be considered an
accidental error for the purposes of regulation 9 of the
Social Security (Adjudication) Regulations (Northern Ireland)
1995, it is equally an error of law.
Secondly, although the findings of fact have been recorded
comprehensively, they are still inadequate. The Tribunal
considered the various decisions in Appendix B of the papers yet
it did not address whether the breaks in employment between the
3 separate fixed periods, constituted a recognised, customary
or other holiday. Nor did they make any finding of fact whether
Miss D... had a "running contract" or whether the contract
had in fact terminated or expired. They also took into account
the fact that other people in a similar situation had been
awarded benefit. A Commissioner in R(U) 3/74, paragraph 7, was
held:-
"Firstly a comparison of the instant case with another casegets the claimant nowhere. In a field of law millions of
claims are made each year there are bound to be mistakes
sometimes. Even therefore where it is shown that the two
cases were exactly similar the difference between them merely
proves or suggests that something has gone wrong but it does
not prove what ....."
Therefore I would submit that the fact that other claimants may have
received benefit in similar circumstances does not mean that
Miss D... should also receive benefit if she fails to satisfy the
conditions of entitlement for Income Support purposes.
I further submit that although Miss D... is contacted to work term
time the contract itself is one agreement and not a series of
agreements as determined by the Tribunal. Moreover I submit that in
this type of case it is important to distinguish between those where
the person has a "running contract" and resumes work at the end of
the school holiday unless he is told that his services are no longer
required, and those where he does not resume work unless specifically
re-engaged [para 7 or R1/69 (UB)].
In conclusion I submit that Miss D... has a "running contract" as
resume work at the end of the school holiday period 23 December 1995
to 14 January 1996 and as such is in remunerative work for the
purposes of regulation 5(2)(b)(ii) and (3) of the Income Support
(General) Regulations (Northern Ireland) 1987 and therefore excluded
from Income Support for the purposes of Section 123(1)(c) of the
Social Security Contributions and Benefits (Northern Ireland) Act
1992."
and in regard to the second case the Adjudication Officer sought leave to appeal on the following grounds:-
"2. This application for leave to appeal is against the tribunal'sdecision that Miss W... is entitled to income support as her
contract is fixed for certain periods with the University
of Ulster and is available for work during the intervening
periods.
I submit that the tribunal's findings of fact are perverse.
They made findings of fact that Miss W...' contract is fixed
in respect of the 3 designated periods and during the periods
not covered by the contract Miss W... is available for
employment. However the evidence before them demonstrates
that there was an ongoing contract which had not been
terminated. Under the terms of the contract Miss W... was
"not contracted" to work during the holiday periods. Clearly
this did not mean that the employment as agreed under the
contract had been terminated.
3. Moreover I submit that the tribunal have also erred on 3
other counts. Although the tribunal made a finding of fact
that Miss W... was available for employment they failed to
make any findings of fact on whether or not she was in
remunerative work for the purposes of regulation 5(1), 5(2)
and 5(3) of the Income Support (General) Regulations (NI)
1987. In addition according to the terms of the contract
Miss W... is entitled to 5 days holiday pay which is paid
at the end of each term. The Tribunal completely omitted
to consider whether she was in remunerative work for the
purposes of regulation 5(5) of the Income Support (General)
Regulations (NI) 1987.
4. In conclusion the tribunal have also erred in making a finding
of fact and recording as a reason for their decision that others
in Miss W...' identical circumstances have received benefit.
A Commissioner in R(U) 3/74, paragraph 7, has held:-
"Firstly a comparison of the instant case with anothercase gets the claimant nowhere. In a field of law many
millions of claims are made each year there are bound to
be mistakes sometimes. Even therefore where it is shown
that the two cases were exactly similar the difference
between them merely proves or suggests that something
has gone wrong but it does not prove what ..."
I therefore submit that the fact that other claimants may have
received benefit in similar circumstances does not mean that
Miss W... should also receive benefit if she fails to satisfy
the conditions of entitlement to income support."
(Signed): C C G McNally
COMMISSIONER
4 June 1997