Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


TMcG-v-Department for Social Development (IB) [2010] NICom 63

Decision No: C6/09-10(IB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 INCAPACITY BENEFIT

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 30 April 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the appeal tribunal dated 30 April 2009 is in error of law. The error of law identified will be explained in more detail below.
2. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.
3. I am, however, able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.
4. I confirm the decision of the Department, dated 26 November 2008, in which a decision-maker decided that the appellant was not entitled to incapacity benefit (IB) for 27 August 2008, from 16 to 17 September 2008 (both dates included) and 22 October 2008. On those dates, the appellant is to be treated as capable of work for the purposes of section 167D of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 16 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, because on those days he worked and the work cannot be regarded as falling into any exempt category, under regulation 16 or 17, or by an application of the de minimis principle.

Background

5. On 26 November 2008 a decision-maker of the Department decided that the appellant was not entitled to IB for 27 August 2008, from 16 to 17 September 2008 (both dates included) and 22 October 2008. The basis of the disallowance was that the appellant was treated as capable of work on the relevant dates because on those dates he had worked and the work did not fall into an exempt category. An appeal against the decision dated 26 November 2008 was received in the Department on 5 January 2009. On 30 January 2009 the decision dated 26 November 2008 was looked at again but was not changed.
6. An appeal tribunal hearing took place on 30 April 2009. The oral hearing of the appeal considered together three appeals in connection with the appellant. The appellant was present and was represented by Mr Allamby from the Law Centre (Northern Ireland). The Department was represented by a presenting officer. The appeal tribunal disallowed the appeal and confirmed the decision dated 26 November 2008.
7. On 25 June 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service. On 26 June 2009 the application for leave to appeal was refused by the legally qualified panel member.

Proceedings before the Social Security Commissioner

8. On 10 July 2009 a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners. On 14 September 2009 observations on the application for leave to appeal were sought from Decision Making Services (DMS). Written observations were received on 10 October 2009. In these initial written observations DMS opposed the application on the grounds submitted on behalf of the appellant. Written observations were shared with the appellant on 19 October 2009. On 4 November 2009 a further submission was received from the appellant's representative.
9. On 25 November 2009 I granted leave to appeal in connection with this appeal and two related appeals. In granting leave to appeal, I gave, as a reason that an arguable issue arose as to whether the appeal tribunal:

(a) mis-directed itself in not taking into account the policy underlying the relevant legislative provisions;

(b) failed to apply the de minimis rule in the correct manner; and

(c) gave undue weight to an immaterial matter.

10. I directed an oral hearing of the appeal which took place on 9 March 2010. At the oral hearing, the appellant was represented by Mr Allamby from the Law Centre (Northern Ireland), and the Department was represented by Mr Toner of the DMS section. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

Errors of law

11. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.
12. In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."

Was the decision of the appeal tribunal in the instant case in error of law?

The agreed factual background before the appeal tribunal

13. Before the appeal tribunal, the following factual background was agreed. The appellant became unfit for work from 1 March 1996, and claimed and was awarded IB from 4 March 1996. At various times during the periods under consideration, the appellant was also in receipt of other social security benefits. In August 2004 the appellant was appointed to be an Equality Commissioner with the Equality Commission. In respect of this appointment, the appellant was entitled to an annual honorarium of £5000, equating to a payment of £417 per month approximately. The terms and conditions of appointment of an Equality Commissioner (provided as part of the decision-making process giving rise to the decision under appeal) provide that in return for the annual honorarium, a Commissioner would be expected to serve for an equivalent of two days per month. From the outset of his appointment, the appellant did not accept the honorarium payments personally but requested that the payments be paid over to a Resource Centre which provided him with assistance and support in connection with his role as an Equality Commissioner. The appellant did not inform IB of his appointment as an Equality Commissioner, nor of the honorarium payments, after apparently taking advice from the staff at the Equality Commission that such a disclosure did not have to be made as the paying over to the Resource Centre would not have an effect on benefit entitlement.
14. It was also agreed that while the appellant's circumstances were investigated, at one stage, by the Benefits Investigation Service, the Department accepted that there was no deliberate attempt by the appellant to mislead the Department as to his actual circumstances. It has also been accepted that in certain months during his period of appointment, the appellant undertook activities in connection with his appointment as an Equality Commissioner for more than the specified two days. The Department appears to have accepted that any activity undertaken for a period beyond the two specified days per month would be 'exempt' for the purposes of the relevant legislation. Finally, the appeal tribunal was only concerned with a decision in respect of benefit entitlement and a recoverable overpayment decision had not, at that stage, been raised by the Department.

The submissions of the parties

15. In the application for leave to appeal to the Social Security Commissioner, the appellant's representative submitted that the decision of the appeal tribunal was in error of law on the basis that:

(i) the appeal tribunal erred in law in misdirecting itself on a material matter, namely in not taking into account the underlying policy of the legislation when considering whether the appellant's activities amounted to 'work' for the purposes of the IB legislation. In support of this submission, the representative made reference to various passages in the decision of the Deputy Social Security Commissioner in CIB/6777/1999;

(ii) the level of support provided to the appellant by the Resource Centre, in carrying out his role as an Equality Commissioner, appears to have been treated as a relevant factor in holding that the 'de minimis' rule does not apply;

(iii) the appeal tribunal gave undue weight to an immaterial matter by holding that the undertaking of an activity over a substantial period of time was a relevant consideration when this factor should be looked at in the context of the amount of time taken on the activity over that period.

16. The applicant's representative renewed these arguments in the skeleton argument prepared for, and during the oral hearing itself.
17. In their written observations on the appeal, and in the skeleton argument prepared for, and during the oral hearing itself, DMS have opposed the appeal on all of the grounds cited by the appellant's representative.

The legislative background

18. Section 167D of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

'Incapacity for work: persons to be treated as incapable or capable of work

167D(1) Regulations may provide that a person shall be treated as capable of work, or as incapable of work, in such cases or circumstances as may be prescribed.

(2) Regulations may, in particular, provide that a person shall be treated as capable of work if he does work of a prescribed description, or more than the prescribed amount of work of a prescribed description. Accordingly regulations may provide that a person shall not be treated as capable of work by reason only of his doing such work as may be prescribed, or no more than the prescribed amount of work of a prescribed description.'

19. Regulations 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, which are relevant to the issues arising in this appeal, were amended in April 2006, but it has been agreed by both parties to the proceedings that the amendments are not material to the issues arising in the appeal.
20. The post April 2006 forms of regulations 16 and 17 provide that:

'16 Person who works to be treated as capable of work

(1) A person shall be treated as capable of work on each day of any week during which he does work.

(2) Paragraph (1) applies even if--

(a) it has been determined that he is, or is to be treated under any of regulations 10 to 15 or regulation 27 as, incapable of work, or

(b) he meets the conditions set out in regulation 28(2) for treating a person as incapable of work in accordance with the personal capability assessment until a determination has been made in accordance with that assessment.

(3) Paragraph (1) does not apply to--

(a) work as a councillor disregarded under section 167F of the Contributions and Benefits (NI) Act,

(b) approved work under regulation 10A,

(c) care of a relative or domestic tasks carried out in his own home,

(d) any activity he undertakes during an emergency solely to protect another person or to prevent serious damage to property or livestock, or

(e) any of the categories of work set out in regulation 17 (exempt work).

(4) This regulation is subject to regulation 13(3) (person receiving certain regular treatment).

(5) A person who does work to which this regulation applies in a week which is--

(a) the week in which he first becomes entitled to a benefit, allowance or advantage on account of his incapacity for work in any period, or

(b) the last week in any period in which he is ncapable of work,

shall be treated as capable of work by virtue of paragraph (1) only on the actual day or days in that week on which he does that work.

(6) In this regulation--

"week" means a period of 7 days beginning with Sunday,

"work" means any work which a person does, whether or not he undertakes it in expectation of payment.

17 Exempt work

(1) The categories of work referred to in regulation 16(3)(e) are set out in the following paragraphs.

(2) Work for which the earnings in any week do not exceed £20.00.

(3) Work for which the earnings in any week do not exceed [£93.00] and which--

(a) is part of a treatment programme and is done under medical supervision while the person doing it is an in-patient, or is regularly attending as an out-patient, of a hospital or similar institution, or

(b) is supervised by a person employed by a public or local authority or [by a] voluntary organisation [or community interest company] engaged in the provision or procurement of work for persons who have disabilities.

(4) Work which is done for less than 16 hours a week, for which earnings in any week do not exceed [£93.00] and which--

(a) is done during a period of specified work, provided that--

(i) the person has not previously done specified work,

(ii) since the beginning of the last period of specified work, the person has ceased to be entitled to a relevant benefit for a continuous period exceeding 8 weeks, or

(iii) not less than 52 weeks have elapsed since the last period of specified work; or

(b) is done by a person who is treated as incapable of work under-

(i) regulation 10 (persons with a severe condition treated as incapable of work), or

(ii) regulation 31(3) and (5)(c) to (k) of the Social Security (Incapacity Benefit) (Transitional) Regulations (Northern Ireland) 1995 (persons treated as incapable of work).

(5) Work done in the course of receiving assistance in pursuing self-employed earner's employment whilst participating in a programme provided or other arrangements made under section 2 of the Employment and Training Act 1973 (functions of the Department) in relation to training for employment etc).

(6) Work done as a volunteer.

(7) [Duties undertaken on either one full day or two half days a week] as--

(a) a member of the Disability Living Allowance Advisory Board, or

(b) a panel member with a disability qualification, as defined on regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 acting as a member of an appeal tribunal.

(8) In this regulation--

"less than 16 hours a week" means--

(a) subject to paragraph (b) or (c), a combined total of less than 16 hours a week,

(b) subject to paragraph (c), an average of less than 16 hours a week in the period which comprises that week and the 4 weeks preceding it, or

(c) an average of less than 16 hours a week in the period of the cycle in which that week falls, where it is established that the work falls into a recognised cycle;

"relevant benefit" means--

(a) incapacity benefit, severe disablement allowance, income support, housing benefit or council tax benefit under the Contributions and Benefits (Northern Ireland) Act, or

(b) credits under regulations under section 22(5) of that Act,

in connection with the entitlement to which the question of the person's capacity or incapacity for work arises under that Act;

"specified work" means--

(a) work done in accordance with paragraph (4)(a), or

(b) work done in accordance with regulation 17(1A) as then in force;

"voluntary organisation" means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit.

(9) For the purposes of this regulation, a period of specified work begins on the first day on which any specified work is undertaken and continues for a period of 52 weeks, whether or not any further specified work is undertaken during that period.

The proper approach to the de minimis rule and regulations 16 & 17

21. The Great Britain equivalents of regulations 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, were the subject of detailed analysis by the Deputy Social Security Commissioner in CIB/6777/1999. The Deputy Commissioner began by outlining, in paragraph 10 of his decision, the general scheme provided for in the regulations:

'10 The relevant law is set out in Chapter IV of the Social Security (Incapacity for Work) (General) Regulations 1995 (S.I. 1995 No. 311). The starting point is that a person is treated as capable of work (and so not eligible for incapacity benefit) "on each day of any week …. during which he does work to which this regulation applies" (reg. 16(1)). This in turn is defined as "any work which a person does…. whether or not in expectation of payment, apart from care of a … relative or domestic tasks carried out in his own home" (reg. 16(2)). The purpose of this rule is clear; as the authors of Bonner et al. note, "this regulation deploys the preclusive device of treating someone as capable of work in order to penalise those who work inappropriately while claiming" (Social Security: Legislation 2000, Vol. III, p.561).'

22. In paragraph 11, the Deputy Commissioner notes the specified exceptions to the principle, which were applicable at the time of his decision. More significantly, at paragraph 12, he states that:

'12 Previous decisions of the Social Security Commissioners (and their predecessors, the National Insurance Commissioners) have established that the common law maxim de minimis non curat lex ("the law does not concern itself with trifling matters") also applies to the construction of these provisions. In other words, trivial or insignificant amounts of work may properly be disregarded in deciding whether a claimant was actually involved in "work" within the sense of regulation 16. The crucial question is, therefore, what is actually meant by de minimis work in this context.'

23. Having reviewed some older decisions of the National Insurance Commissioners, the Deputy Commissioner turned to two more recent (at that stage) decisions of the Social Security Commissioners:

'17 The de minimis issue has also been considered in some detail by two more recent decisions of the Social Security Commissioners. In CIB/14656/1996 (erroneously referred to as CIB/4656/1996 in Bonner et al, p.562) the claimant had a lodger who paid £40 a week for whom she did certain household tasks (some washing and ironing, done along with her own laundry, and cleaning of the lodger's room). The adjudication officer decided that as the claimant was involved in non-exempt work there had been a recoverable overpayment of invalidity/incapacity benefit. The majority of the appeal tribunal, allowing the appeal, concluded that the work in question constituted domestic tasks carried out in the claimant's own home and were minimal and so there was no recoverable overpayment.

18 In CIB/14656/1996 Commissioner Goodman held that the tribunal was entitled to conclude, on the special facts of the case, that the claimant fell within the "domestic tasks" exception. On the de minimis point, Commissioner Goodman noted that the early case law had to be read with some caution, as at that time there was an assumption that the term "work" implied work which would normally be remunerated. In contrast, reg. 16(2) makes it clear that the rule applies to any non-exempt work whether or not undertaken in the expectation of payment (see further paragraphs 22-23 below). Commissioner Goodman concluded:

"It would, I think, still theoretically be possible for an activity to be so trivial or negligible in extent that it did not constitute the popular notion of "work" at all, but on the facts of the present case that cannot be said. There were additional duties that the claimant was performing for the lodger, even though they may have taken less than an hour a day, and moreover they were performed in return for at least part of the £40 per week paid" (para. 8).

19 The same issue arose in CIB/5298/1997, in which an incapacity benefit claimant worked unpaid in her sister's shop, as a result of which the Department sought to recover an overpayment of benefit. An appeal tribunal found that she was working within reg. 16(2). Commissioner Williams set aside the tribunal's decision in part on the basis that it had regarded the de minimis argument as irrelevant. It had also failed to make or record adequate findings of fact about the work the claimant actually undertook, and so he remitted the appeal to a fresh tribunal. Commissioner Williams also reviewed the case law on the de minimis question. In doing so, he approved the guidance contained in the Adjudication Officers' Guide, which has now been replicated in the DMG, as "both accurate and helpful" (paras. 8 and 11.) The Commissioner's approval was specifically directed to those parts of the guidance which referred to the general principle of disregarding negligible work and not to the passage relating to self-employed earners, which he regarded as simply illustrative in nature.'

24. What did the Deputy Commissioner derive from this analysis of the caselaw on the extent of the de minimis principle in the context of regulations 16 & 17? At paragraphs 20 to 21 he concluded that:

'20 I conclude from the above that in exceptional circumstances a claimant may be regarded as involved in work of such a trivial nature that it should be disregarded in determining whether he or she is entitled to incapacity benefit. This de minimis rule may apply irrespective of whether the claimant's work might in any event be treated as exempt work under the specific provisions of the regulations. There is no hard and fast rule as to what constitutes negligible work for these purposes. As the case law illustrates, it is all a question of fact and degree.

21 Simply to conclude, however, that a question is one of fact and degree is less than helpful to those with the responsibility of making decisions in actual cases. Decision makers and tribunals may find it useful to have regard to the following factors. The DMG (approved in its earlier version by Commissioner Williams in CIB/5298/1997) observes that "whether work on part of a day is negligible depends on its proportion to the normal working hours, the type of work and the effort required in relation to full normal duties" (para. 13867). These factors, however, are merely illustrative and are not exhaustive. It is also important to consider the context in which the work in question is done. Thus activities undertaken on behalf of a stranger (whether remunerated or not) are perhaps more likely to be seen as "work" than identical activities carried out for a friend or family member. The extent to which the activity in question is analogous to those which are the subject of specific exemptions in regulations 16 and 17 may also be a material consideration.'

25. The Deputy Commissioner also had some significant comments to make on the level of remuneration for the work being undertaken:

'22 A further relevant consideration is that of the level of remuneration (if any). In CIB/5298/1997 Commissioner Williams noted in passing that the issue of earning power was "clearly irrelevant to regulation 16(2)" given that the provision applies "whether or not [the claimant] undertakes [the work] in expectation of payment". The Secretary of State's representative makes the same point in his submission in this case, arguing that the inference is that (subject to the therapeutic earnings rule) the amount the person earns is not a relevant factor. I beg to differ. It is important not to lose sight of the underlying purpose of the rule in regulation 16 and the de minimis gloss to that rule. The rule is designed to ensure that those who are actually involved in some work are not eligible for incapacity benefit (even if, for example, they have previously been assessed as incapable of work under the scoring process used as part of the personal capability assessment (formerly the all work test)). The reason for this is that incapacity benefit is an earnings replacement benefit: it is essentially a benefit for those with the appropriate contributions record who cannot work in the labour market.

23 A hypothetical example will suffice to demonstrate the point. A university lecturer takes early retirement on grounds of stress and starts to receive incapacity benefit. One week he is asked to deliver a one hour lecture, using lecture notes prepared whilst still in employment, for a one-off fee of £100. It is certainly arguable that in general terms one hour's work a week in itself would normally be regarded as negligible and so should be disregarded. However, the size of the fee, bearing in mind the normal weekly rate of incapacity benefit, is such that I would suggest that this work should not be regarded as trivial. Accordingly, applying reg. 16, he would not be eligible for incapacity benefit for that week. Conversely, a very low level of remuneration is, in my view, a relevant (but not decisive) factor in the determination of the overall question of whether the claimant has done any "work".

24 To that extent I accordingly differ from the approach taken by Commissioner Williams in CIB/5298/1997. In my view the inclusion of the proviso "whether or not in expectation of payment" may well have been an anti-abuse provision. For example, there may well be cases (and CIB/5298/1997 may or may not have been one such case) where a claimant is working unpaid for a relative or friend in circumstances which suggest that they are in fact not incapable of employment. Equally, a claimant may be involved in work at home which arguably does not fall within the exemption accorded to "domestic tasks carried out in his own home" in reg 16.(2). On the contrary, it may likewise suggest that the claimant is indeed capable of work. For example, a motor mechanic may be claiming incapacity benefit but may be spending most of the week renovating his prize veteran car. This could hardly be designated as a "domestic task". Similarly, the time and effort involved, by comparison with his normal job, might well suggest that he is indeed working (and obviously not in expectation of payment, assuming that there was no intention to sell the car for profit) rather than merely indulging in a hobby.'

26. Finally, the Deputy Commissioner concludes, at paragraph 25:

'25 The hypothetical examples in paragraphs 23 and 24 demonstrate the importance of bearing in mind all relevant factors and the underlying policy of the legislation when considering whether or not a claimant's activity constitutes "work" for the purposes of the legislation applying to incapacity benefit.'

27. The de minimis rule was also considered by Social Security Commissioners in CIB/3507/2002 and CIB/4684/2003, although those cases are largely confined to their own particular facts.
28. From this analysis of the decision in CIB/6777/1999, which, in turn, has reviewed the other case-law relevant to the application of the de minimis principle to Great Britain equivalents of regulations 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, I have derived the following principles:

(i) the de minimis principle applies to any exercise of statutory interpretation or application unless it is clear from the context that a stricter approach is to be applied;

(ii) there is no indication in regulation 16 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, that a stricter approach is to be applied and, accordingly, the de minimis principle is to be applied to its interpretation;

(iii) in exceptional circumstances a claimant may be regarded as involved in work of such a trivial nature that it should be disregarded in determining whether he or she is entitled to IB;

(iv) the question of whether a claimant is involved in work which of such a trivial or negligible nature that it should be disregarded is a question of fact and degree;

(v) factors to be taken into account in determining the question as to whether work is of such a trivial or negligible nature include:

(a) the proportion of work to the normal working hours, the type of work and the effort required in relation to full normal duties;

(b) the context in which the work in question is done;

(c) the extent to which the activity in question is analogous to those which are the subject of specific exemptions in regulations 16 and 17 may also be a material consideration;

(d) the level of remuneration (if any);

(e) it is important to bear in mind all relevant factors and the underlying policy of the legislation when considering whether or not a claimant's activity constitutes "work" for the purposes of the legislation applying to incapacity benefit.

(vi) to the extent that the factor at (v)(d) involves a preference of the reasoning of the Deputy Commissioner in CIB/6777/1999 over the reasoning of the Commissioner in CIB/5298/1997, I accept and prefer the reasoning of the Deputy Commissioner for the reasons set out in that part of his decision;

(vii) overall I accept and adopt the reasoning of the Deputy Commissioner in CIB/6777/1999 and conclude that it represents the legal position in Northern Ireland in relation to the equivalent legislative provisions.

How did the appeal tribunal apply these principles in the instant case?

29. If, as the Deputy Commissioner in CIB/6777/1999 suggests, the question as to whether a claimant is involved in work which is of such a trivial or negligible nature that it should be disregarded is a question of fact and degree, a Social Security Commissioner should be wary of interfering with the conclusions of an appeal tribunal on such questions, unless such conclusions are somehow perverse or irrational. The analysis undertaken by the appeal tribunal was rigorous and the statement of reasons for the appeal tribunal's decision sets out, in some considerable detail, the outcome of that analysis and is reflective of the care with which the appeal tribunal dealt with the difficult issues which were before it. Many of the factors adopted by the appeal tribunal in deciding that the activity undertaken by the appellant in connection with his appointment as an Equality Commissioner could not be regarded as work of a negligible or trivial nature, so as to permit the application of the de minimis rule, could not be faulted.
30. I conclude, however, that the appeal tribunal omitted to take into account one of the factors outlined by the Deputy Commissioner in CIB/6777/1999, namely the extent to which the activity in question is analogous to those which are the subject of specific exemptions in regulations 16 and 17. Further, I am of the view that there is strength in the argument of the appellant's representative that too much emphasis was placed by the appeal tribunal on the level of support which the appellant required to undertake the activity associated with being an Equality Commissioner. That could lead to the perversity described by the representative that the 'greater the disability and the more support needed to undertake an activity the less likely the de minimis rule will apply'. I also agree that the appeal tribunal's conclusion that the appellant '… was paid over a substantial period of time ...' was immaterial, although I am certain that this is more the result of clumsy drafting of this conclusion than giving weight to an immaterial matter.
31. With some reluctance, therefore, I hold that the decision of the appeal tribunal is in error of law, principally for its failure to take into account a relevant factor in deciding whether the activity undertaken by the appellant in connection with his appointment as an Equality Commissioner could be regarded as work of a negligible or trivial nature, so as to permit the application of the de minimis rule.

My own decision

32. I have before me all of the papers, submissions and evidence relevant to the appeal. Accordingly, I see no reason why this appeal should be remitted to a differently constituted appeal tribunal for re-determination.
33. I have concluded that consideration has to be given to the extent to which the activity in question is analogous to those which are the subject of specific exemptions in regulations 16 and 17. There is a strong argument to be made that the activity undertaken by the appellant as an Equality Commissioner is analogous to certain of those activities which are the subject of specific exemptions in regulations 16 and 17. The activities which I have in mind are set out in regulation 17(7), including work as a member of the Disability Living Allowance Board, or as a disability qualified panel member of an appeal tribunal. The activity undertaken by the appellant, in his role as Equality Commissioner, and described to me could be said to be analogous to the activities subject to the exemption in regulation 17(7). To the extent that the purpose of regulation 16(3)(a) is to encourage those with disabilities to participate in civic office, an analogy, but perhaps not as strong an analogy, could also be drawn with the activity subject to the exemption in regulation 16(3)(a).
34. It is important to remember, however, that the 'analogy' factor is but one factor to be taken into account in determining whether the activity undertaken by the appellant, in his position as an Equality Commissioner, could be regarded as work of a negligible or trivial nature, so as to permit the application of the de minimis rule. Despite the strength of the factor, it is, in my view, outweighed by other significant factors, including the level or remuneration associated with the activity; the significance of the work undertaken, involving a role described by the Equality Commission as a 'non-executive Board member', with regular non-casual activity; the context in which the activity is carried out; the public nature of the appointment and the appointment process; and the detailed terms and conditions of appointment associated with the post. Additionally, the fact that the applicant passed on the honorarium payments cannot, in my view, dilute the activity to a negligible or trivial nature.
35. The appellant's representative has submitted that it is essential that the underlying purpose of the legislation must be taken into account in determining whether the activity undertaken by the appellant in connection with his appointment as an Equality Commissioner could be regarded as work of a negligible or trivial nature, so as to permit the application of the de minimis rule. It is important to recall that the Deputy Commissioner in CIB/6777/1999 concluded, in paragraph 20 that '…in exceptional circumstances a claimant may be involved in work of such a trivial nature that it should be disregarded in determining whether he or she is entitled to incapacity benefit'. Absent the 'analogy' factor outlined above, I cannot see, given the factors which I have taken into account above, how it could be determined that the activity undertaken by the appellant, in connection with his appointment as an Equality Commissioner could be regarded as work of a negligible or trivial nature, so as to permit the application of the de minimis rule.
36. I would add that I have been provided with some detailed materials by the appellant's representative concerning the April 2006 amendments to the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, and other documents relating to the policy of encouraging those with disabilities or incapacities to return to work. I cannot find anything within that documentation which affects my consideration of the issues arising in this appeal.
37. Accordingly, I confirm the decision of the Department, dated 26 November 2008, in which a decision-maker decided that the appellant was not entitled to IB for 27 August 2008, from 16 to 17 September 2008 (both dates included) and 22 October 2008. On those dates, the appellant is to be treated as capable of work for the purposes of section 167D of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and regulation 16 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995, as amended, because on those days he worked and the work cannot be regarded as falling into any exempt category, under regulation 16 or 17, or by an application of the de minimis principle.

(Signed): K Mullan

COMMISSIONER

1 July 2010