Northern Ireland - Social Security and Child Support Commissioners' Decisions

[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

1. Both these cases relate to the one point and to a similar contract and while I heard them separately I feel that a common decision will cover both cases.
2. In the first case leave to appeal was granted by the Chairman to the Adjudication Officer and in the second case on almost similar facts the Chairman of the Tribunal refused leave to appeal.
3. I heard the appeal in the first case and the application for leave to appeal on the second case. In each case the Adjudication Officer was represented by Mrs Fearon, Solicitor of the Department of Health & Social Services and the claimants were represented by Mr McN....
4. The point at issue is the interpretation of the terms and conditions of employment of these two ladies with the University of Ulster and whether or not under the terms of their contact they are entitled to income support during the periods in which they are not working.
5. In his written comments in his application for leave to appeal in the first case the Adjudication Officer submitted:-

"I respectfully submit that the Tribunal have erred in law in the

following 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 case

gets 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's

decision 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 another

case 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."

6. Both Tribunals had found that claimants were entitled to income support and that in neither case was the agreement a running contract but that it was fixed for certain periods. As far as the Adjudication Officer's comment that "other claimants in identical circumstances received benefit", what the Tribunal merely said was, although it recorded it under reasons for decision was "it is noted that others received the benefit."
7. At that hearing before me Mrs Fearon argued that the contract was a running contract. Mr McN... argued that each term was a separate contract.
8. I have considered all the documents and the arguments in these cases and the various authorities which were quoted. The matter is a narrow one as to whether or not the contract terms was fixed only in respect of the periods in the contract. The Tribunal found that they were. It was entitled to come to that conclusion. I cannot see how anyone can claim that that finding is perverse. Having done so it was unnecessary for them to find whether or not claimant was in remunerative work for the purposes of regulations 5(1), (2) or (3) of the Income Support (General) Regulations (NI) 1987. Nor does 5(5) in the General Regulations apply.
9. I now deal with the argument that the Tribunal erred in making a finding and recording as a reason for their decision, that others in identical circumstances received benefit. I am not satisfied that the Tribunal intended to record that as a reason for its decision, it merely noted it and I think it was very proper that it should be noted. This type of decision by some Adjudication Officers brings the whole adjudication system into disrepute. The evidence was that benefit is paid to claimants who hold exactly similar contracts in Belfast and Coleraine, and there is only one office in Londonderry which refuses to pay benefit in these circumstances. I am sure that that situation should cause grave concern to those whose duty it is to ensure uniformity in benefit decisions. It must be no comfort to them to quote the decision of R(U)3/74 because all that merely says is that different decisions do not prove anything. Nevertheless the lack of uniformity of decisions must surely be a cause for considerable concern.
10. At the hearing I granted leave to appeal in the case of Miss W..., and both parties consented to me treating the application as the appeal.
11. I am satisfied that the Contract I have read in the ordinary language in which it is phrased means what it says. It says that the particulars of the terms and conditions of employment are set out, and that both claimants are part-time term time nursery assistants "for the following fixed term periods". I am satisfied therefore that each term is a separate contract and that the Tribunals were correct in so holding.
12. The only error made was not taking account of the payment of holiday pay. While the Tribunals did not designate any period, but allowed the appeals and held that the claimants were entitled to income support, in awarding the benefit account must be taken of the fact that at the end of each term a payment in lieu of holidays will be made. The current entitlement is 5 days per term depending upon the period worked. "May day" is normally granted as a paid holiday. Therefore in deciding what income support a claimant is entitled to, account must be taken of the holiday pay. In the case of S… D..., the Tribunal erred in awarding her income support from 23 December 1995. I am satisfied that that error does not in any way invalidate the basis for the decision, but that the matter can be dealt with as an accidental error. Although her claim was not made until 25 December, account must be taken of the holiday pay. It is a matter for the Adjudication Officer and the claimants to agree these periods.
13. For the reasons set out above I dismiss both appeals.

(Signed): C C G McNally

COMMISSIONER

4 June 1997