Northern Ireland - Social Security and Child Support Commissioners' Decisions

CMcN-v-Department for Communities (JSA) [2017] NICom 61

 

Decision No: C2/17-18(JSA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

JOBSEEKERS ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 28 September 2016

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.     The decision of the appeal tribunal dated 28 September 2016 is in error of law.  The error of law identified will be explained in more detail below. 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.

 

2.     I would ask the Legally Qualified Panel Member (LQPM) of the appeal tribunal to note that subsequent to the appeal tribunal hearing further evidence has come to light which has the potential to alter the validity of one key aspect of the decision which was under appeal to it.  As will be noted in greater detail below, while the Department submits that the appeal tribunal should have considered adjourning the appeal to obtain the relevant evidence it also accepts that the appeal tribunal was not assisted by the failure of the Department to ask for that evidence as part of the initial decision-making process.  I am of the view that had the appeal tribunal been given the evidence which is now before me then it would have arrived at a different decision in connection with one core aspect of the decision under appeal.  

 

3.     For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal to which I have not had access.  Further, there will be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

 

4.     In referring the case to a differently constituted appeal tribunal for re-determination, I direct that the appeal tribunal takes into account the guidance set out below.

 

5.     It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of her entitlement to Jobseeker’s Allowance (JSA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal. 

 

         Background

 

6.     On 20 June 2016 a decision maker of the Department decided that the appellant was not entitled to JSA from and including 4 June 2016.  On 24 June 2016 the appellant asked for the decision dated 20 June 2016 to be reconsidered.  On 4 July 2016 the decision dated 20 June 2016 was reconsidered but was not changed.  An appeal against the decision dated 20 June 2016 was received in the Department on 19 July 2016.

 

7.     The appeal tribunal hearing took place on 28 September 2016. The appeal proceeded by way of a ‘paper’ hearing.  On 1 September 2016 an LQPM had made a determination to that effect.  The appeal tribunal disallowed the appeal and confirmed the decision dated 20 June 2016.

 

8.     On 6 February 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 13 February 2017 the application for leave to appeal was refused by the LQPM.

 

         Proceedings before the Social Security Commissioner

 

9.     On 10 March 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 29 March 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 24 April 2017, Mr Woods, for DMS, supported the application for leave to appeal. Written observations were shared with the appellant on 27 April 2017. E-mail correspondence was received from the appellant on 2 May 2017 in which she indicated that in light of the Department’s written observations she had no further comment to make.

 

10.   On 3 August 2017 I granted leave to appeal.  On the same date I determined that an oral hearing of the appeal would not be required.

 

         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.  What is an 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.”

 

         Analysis

 

13.   In his detailed written observations on the application for leave to appeal, Mr Woods made the following submissions:

 

‘Grounds of appeal

 

(The appellant) submits that at the date of her claim she was not in remunerative work.  She submits that the decision in the statement of reasons was based on incorrect information and that her hours of work were calculated incorrectly and unfairly.  She submits that she is a term-time worker and she worked between 7 September 2015 and 3 June 2016 and her contracted hours were 22.5 per week.  She further submits that she does not get paid when the college is closed i.e. Halloween, Christmas, Easter, mid-term and bank holidays.  She submits that the Tribunal have incorrectly calculated that she works 38 weeks per year, when in fact she only works 32.1 weeks of the year.  She submits that she worked 724 hours in the year, which meant she worked on average 14.775 hours per week and as such she was not in remunerative work and entitled to Jobseeker’s Allowance.

 

                  The Legislation

 

Article 3(2)(e) of the Jobseekers (Northern Ireland) Order 1995 [the “JSA Order”] provides:

 

(2) Subject to the provisions of this Order, a claimant is entitled to a jobseeker’s allowance if he—

 

                  (e) is not engaged in remunerative work;

 

Article 6(1) of the Jobseekers (Northern Ireland) Order 1995 [the “JSA Order”] provides:

 

(1) In the case of a contribution-based jobseeker’s allowance, the amount payable in respect of a claimant (“his personal rate”) shall be calculated by—

 

(a) determining the age-related amount applicable to him; and

 

(b) making prescribed deductions in respect of earnings and pension payments, pension payments, PPF payments and FAS payments.

 

Regulation 51 of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 provides [the “JSA regs”]:

 

(1) For the purposes of the Order “remunerative work” means—

 

(a) in the case of a claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week, and

 

(b) n/a, and

 

                  (c) n/a and for those purposes, “work” is work for which payment is made or which is done in expectation of payment.

 

(2) For the purposes of paragraph (1), the number of hours in which a claimant or his partner is engaged in work shall be determined—

 

(b) where the number of hours for which he is engaged fluctuate, by reference to the average of hours worked over—

 

(i) where there is a recognisable cycle of work, and sub-paragraph (c) does not apply, the period of one complete cycle (including, where the cycle involves periods in which the person does not work, those periods but disregarding any other absences);

 

                  Regulation 52(1) and (3)(a) of the JSA Regs:

 

(1) Except in the case of a person on maternity leave, paternity leave, adoption leave, shared parental leave or absent from work through illness, a person shall be treated as engaged in remunerative work during any period for which he is absent from work referred to in regulation 51(1) (remunerative work) where the absence is either without good cause or by reason of a recognised, customary or other holiday.

 

(3) In determining in accordance with this regulation the number of hours for which a person is engaged in remunerative work—

 

(a) that number shall include any time allowed to that person by his employer for a meal or for refreshments, but only where the person is, or expects to be, paid earnings in respect of that time;

 

                  Caselaw

 

                  R(JSA) 5/03

 

                  Department’s Response

 

The Tribunal found that (the appellant) does not dispute the applicability of the legislation to her situation, but contends that the Department has incorrectly calculated her hours of employment on the basis that her contractual hours are not 25 hours per week over a 38 week period, but 22.5 hours per week over a 30/31 week period.

 

It is not in dispute is that (the appellant) is employed on a term-time basis, that her appointment is on a permanent basis and she would be returning on 5 September 2016.

 

There are two areas of contention; one being the number of hours worked each week and the other the number of weeks that (the appellant) works in the year.  I will address each in turn.

 

                  Hours worked each week

 

In considering the number of hours that (the appellant) worked each week the Tribunal accepted and preferred the evidence given in the form of her contract of employment (the one that correctly describes her as a term-time worker) and the evidence from the Payroll Officer of … dated 16.6.16, both of which confirm her hours of employment to be 25 per week.

 

I submit that all of the evidence shows that (the appellant) is contracted to work from 9.30 am until 2.30 pm each day.  (The appellant) contends that the 25 hours per week figure used by both the Department and the Tribunal is incorrect as she has a 30 minute break each day that she does not get paid for. Regulation 52(3)(a) of the JSA Regs provides that only paid breaks for meals or refreshments should be included in the number of hours for which a person is engaged in remunerative work. I submit that the Tribunal have rejected (the appellant’s) contention that her breaks were unpaid but have not given any reasons for doing so in their decision.  As such I submit the Tribunal have erred in law.

 

I submit that as (the appellant) had already completed her hours of work for the cycle, that instead of estimating/calculating her hours worked from her contract, the Tribunal and indeed the Department before it, should have been asking the claimant as to what actual hours she had worked and to provide evidence either by way of payslips or letter from her employer.  I submit that the Tribunal could have adjourned the hearing, to exercise its inquisitorial role and request this information/evidence from (the appellant) or her employer.

 

(The appellant) has subsequent to the Tribunal hearing provided wage-slips that show the exact number of hours that she worked in the 2015-16 school year.  The most hours worked in any one month was 94.5 [October 2015] and the least 49.5 hours [March 2016] which I submit would indicate that the 25 hours each week used by both the Department and the Tribunal was incorrect.  Most months show the hours worked in the eighties.  Even a 4-week month using 25 hours per week (the appellant) should be getting paid for 100 hours.

 

                  Number of weeks worked in the year

 

In considering the number of weeks worked in the year the Tribunal decided that it “preferred to accept the initial calculation of 38 weeks based on (the appellant’s) employment as a term-time worker from 7.9.15 to 3.6.15 with an allowance made for 14 days paid holiday leave”.

 

At paragraph 6 of (the appellant’s) terms and conditions of employment, as accepted by the Tribunal, it states in respect of Public Holidays that (the appellant) “will also be entitled to paid leave on Company recognised public holidays (on a pro-rata basis)” [my emphasis].  There are 8 such holidays in a year in accordance with paragraph 6.3 of the Terms and Conditions.  Neither the Tribunal nor the Department before it took these holidays into consideration when making their calculations.  By not doing so I submit that the Tribunal have erred in law.

 

I further submit that, it is the norm for Term-Time workers at colleges to have other periods of no work during the year which (the appellant) has alluded to and which seems to have been confirmed in an e-mail of 9 August 2016 from the Senior Area Manager of the …, when she stated that the claimant did 30 weeks actual paid work between 7 September 2015 and 3 June 2016.  A quick visit to the website for the … shows that it is normal for them to have a two week break at both Christmas and Easter.  In addition they have two further one week mid-term breaks.  The calculation used by the Tribunal and the Department before it would mean that (the appellant) worked not only through these breaks [including Christmas day and New Year’s day], but also all of the public holidays.

 

I submit therefore that the Tribunal in exercising its inquisitorial role should have adjourned the hearing and requested (the appellant) to provide evidence of the actual number of weeks that she worked between September 2015 and June 2016, paid annual leave and public holidays.  This information would have been available to both (the appellant) in the form of wage-slips and records from her employers.  The Tribunal was not helped in this matter by the Department either as they did not ask for this information/evidence before making their decision.  I submit that the Tribunal have erred in law by dismissing (the appellant’s) assertions and adopting the Department’s decision.

 

                  Further Evidence

 

Now that (the appellant) has provided her wage-slips for the 2015-16 school year a more accurate figure can be calculated regarding her average hours worked each week.  The payslips give the following September 67.5 hours; October 94.5; November 85.5; December 81; January 87.5; February 68; March 49.5; April 86; May 86 and June 86, giving a total of 791.5 hours for the year. (The appellant) states that the hours shown in her June payslip include those of her paid annual leave.  I submit that this is plausible given that her work ended on 3 June as confirmed by her employer.

 

There is still however a discrepancy in the number of days in which the claimant is entitled to paid holiday.  (The appellant) states this is 14 days but the evidence from her employer shows 15 days.  However nothing turns on this as I will explain next.

 

                  Is (the appellant) in remunerative work?

 

I submit that following the principles set down in R(JSA) 5/03 and by using the actual number of hours worked in the cycle and taking account both her annual paid and public holidays, (the appellant) works on average less than 16 hours per week and as such is not in remunerative work.  If 14 days annual leave were used her average would be 15.18 hours per week [728.5 divided by 48] and if 15 days annual leave were used the average would be 15.15 hours per week [724 divided by 47.8].

 

Should the Commissioner set aside the decision and the issue is put before a new Tribunal and that Tribunal finds that (the appellant) is not in remunerative work, it must go on to consider the other conditions of entitlement for contribution-based  Jobseeker’s Allowance as outlined by Article 3 of the JSA Order and any earnings that may affect the amount payable in line with Article 6(1)(b).

 

                  Conclusion

 

To conclude, and for the reasons outlined above I would submit that the decision of the Tribunal dated 28 September 2016 is erroneous in law and I would support this application.  I would respectfully submit that the case is remitted back to a differently constituted Tribunal to make further findings of fact and to decide on (the appellant’s) entitlement to Jobseeker’s Allowance.’

 

14.   I accept Mr Woods’ convincing submissions and for the reasons which he has set out also accept that the decision of the appeal tribunal is in error of law.

 

         Disposal

 

15.   The decision of the appeal tribunal dated 28 September 2016 is in error of law.  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.

 

16.   I make the following directions:

 

         (i)      The Department is directed to prepare a further submission for the appeal before the differently constituted tribunal.  The further submission should draw on the detailed analysis of the issues arising in the appeal undertaken by Mr Woods.

 

         (ii)     The further submission is to be shared with the appellant in advance of the appeal in order to allow the appointee to prepare her own submissions in connection with the issues arising in the appeal.

 

         (iii)    The appeal is to be listed as an oral hearing.

 

         (iv)    The appellant should note that it is in her interests to attend the oral hearing of the appeal and that she should give consideration to obtaining representation.

 

         (v)     A Presenting Officer from the Department is to attend the oral hearing.  

 

 

(signed) K Mullan

 

Chief Commissioner

 

 

 

18 October 2017