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[1990] UKSSCSC CSU_25_1989 (17 October 1990)

R(U) 2/91

Mr. M. J. Goodman CSU/25/1989

17.10.90

Day of unemployment - disqualification for absence abroad – whether days of absence abroad can be "waiting days"

The claimant was employed by a firm of whisky distillers until his employment ceased on 30 June 1988. He left Great Britain for Spain on 27 June 1988 and returned on 8 July 1988. The Department of Employment had been notified of all relevant dates and it was accepted that the claimant was available for employment from 1 to 7 July 1988.

The adjudication officer disqualified the claimant for receipt of unemployment benefit for the period beginning 1 July 1988 to 7 July 1988 under the terms of section 82(5)(a) of the Social Security Act 1975 because of the claimant's absence from Great Britain. On appeal the social security appeal tribunal confirmed the adjudication officer's decision. The claimant appealed against the tribunal decision.

Held that:

the claimant is disqualified for receiving unemployment benefit from 1 July 1988 to 7 July 1988 because he was absent from Great Britain: Social Security Act, section 82(5)(a) (paras. 1 and 7);

a person is not entitled to benefit for the first three days of a period of interruption of employment: section 14(3) of that Act. It is necessary to find out what was the period of interruption of employment before section 14(3) can be applied. A period of interruption of employment must be composed, in the present case of days of unemployment (para. 20);

days of disqualification are not days of unemployment: section 17(1)(c) of the Act together with regulation 7(1)(b) of the Unemployment, Sickness and Invalidity Benefit Regulations 1983. There is no distinction in respect of disqualification for absence abroad (para. 13);

it follows that the days 1, 2 and 4 July 1988 are not part of a period of interruption of employment. That began on 8 July 1988, the day the claimant returned to this country. Accordingly the days for which, under section 14(3), the claimant is not entitled to benefit are 8, 9 and 11 July 1988 (paras. 1 and 17);

nothing in the relevant UK legislation contravenes a Directive or Regulation of the EEC. The argument that the claimant came within the spirit of Article 69 of EEC Regulation 1408/71 cannot override the clear inter-locking wording of sections 14 and 17 and 82(5)(a) of the 1975 Act and regulation 7(1)(b) of the 1983 Regulations (para. 15).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal from the decision of the social security appeal tribunal dated 18 February 1989 (but only to the extent indicated in para. 5 below) as that decision is erroneous in law and I set it aside. Having made fresh or further findings of fact, I now give the decision appropriate in the light of them, namely:

(a) The claimant is disqualified for receiving unemployment benefit for the inclusive period from 1 July 1988 to 7 July 1988 because throughout that period the claimant was absent from Great Britain: Social Security Act 1975, section 82(5)(a);

(b) The claimant is not entitled to unemployment benefit for Friday 8 July 1988, Saturday 9 July 1988 and Monday 11 July 1988 as those are the first three days of the relevant period of interruption of employment: Social Security Act 1975, sections 14(3): 17(1) and (2) and the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 [SI 1983 No. 1598], regulation 7(1)(b);

(c) The claimant is not entitled to unemployment benefit for Sunday 10 July 1988 as that is not to be treated as a day of unemployment: Social Security Act 1975, section 17(1)(e).

This is an appeal to the Commissioner by the claimant, a man born on 7 April 1944, against the unanimous decision of a social security appeal tribunal dated 18 February 1989, which dismissed the claimant's appeal from a decision of the local adjudication officer issued on 4 October 1988, in terms similar to those contained in paragraph 1(a) of my decision above. The appeal was at the claimant's request the subject of an oral hearing before the Commissioner. The first hearing was on 7 September 1990, before another Commissioner, who gave certain directions in connection with the case. I held the further oral hearing in Leeds on 4 October 1990, which constituted a complete rehearing and reappraisal of all the facts and legal issues relevant in this case. The claimant was present and was represented by Mr. A. Matson a Regional Officer of the Manufacturing Science and Finance Union. The adjudication officer was represented by Mr. D. Cornwell of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to the claimant, to Mr. Matson and to Mr. Cornwell for their assistance to me at the hearing.

The facts shortly are these. The claimant's employment with a firm of whisky distillers ceased on Thursday 30 June 1988. By that date he had in fact already left Great Britain for Spain, having left on 27 June 1988. He returned to Great Britain on 8 July 1988. He was therefore absent from Great Britain for the inclusive period from 28 June 1988 to 7 July 1988. During that period of absence it is accepted correctly on all sides that he was available for employment from 1 to 7 July 1988; that he had notified (on form UB674 dated 24 June 1988) the Department of Employment's local office of his going abroad and that he intended to return (as indeed he did) on 8 July 1988.

The local adjudication officer then gave a decision which related only to the period beginning on 1 July 1988 (because the claimant was still on the 'books' of the whisky distillers until 30 June 1988 and did not claim to be unemployed until 1 July 1988) and ending on the last full day of the claimant's absence from Great Britain namely 7 July 1988. In that decision the adjudication officer disqualified the claimant for receipt of unemployment benefit under the terms of section 82(5)(a) of the Social Security Act 1975 which reads as follows:

"82. (1)-(4) …

(5) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit … for any period during which the person-

(a) is absent from Great Britain;"

The social security appeal tribunal clearly held a careful hearing into this case and recorded its findings of fact and reasons for decision in exemplary detail on form AT3. They affirmed the adjudication officer's decision. The only reason I have set the tribunal's decision aside as erroneous in law is that I accept the written submission dated 30 August 1989 (para. 13) of the adjudication officer now concerned, in which that officer submits that the tribunal erred technically in law in dealing with Articles 69 and 71 of EEC Regulation No. 1408/71; in not making certain findings of fact; and in misconstruing the underlying principle in Article 71. I accept that that is so, though I would reiterate that the tribunal obviously took the utmost pains with this particular case.

Since the tribunal gave its decision additional matters have been raised by the parties in written submissions to the Commissioner notably on the question of "waiting days" (section 14(3) of the Social Security Act 1975) and it was agreed on all sides and indeed directed by the previous Commissioner in this case that I should deal with those matters under my power in section 102 of the Social security Act 1975. My decision therefore covers the inclusive period from 1 to 7 July 1988 (the period originally dealt with by the local adjudication officer and the social security appeal tribunal) and in addition the period from 8 July 1988 to 11 July 1988 which comprises a Friday, Saturday and Monday (Sunday being a non-day: see section 17(1)(e) of the 1975 Act), as to which period the dispute as to "waiting days" arises.

At the hearing before me on 4 October 1990 Mr. Matson conceded that he could not contend that the claimant could escape the disqualification for receipt of unemployment benefit imposed by section 82(5)(a) of the 1975 Act in regard to the period from 1 July 1988 to 7 July 1988 inclusive since the claimant was absent from Great Britain throughout those days (he was in Spain with a visit also to France) since the claimant could not directly bring himself within any provision of European Economic Community Law which would relieve him from that disqualification. In particular he could not bring himself within Article 69 and 71 of those regulations for reasons similar to those given by another Commissioner in a decision now reported as R(U) 4/89 a copy of which has been made part of the appeal papers in this case. I agree with and accept that concession. I need not therefore deal further with that matter.

However Mr. Matson vigorously contended that although the claimant was disqualified in the sense of not being able to receive payment for the actual days when he was absent from Great Britain, nevertheless he was able during the first three days of those absence to 'clock up' the three waiting days required by section 14(3) of the 1975 Act so that according to the claimant he should have received payment of unemployment benefit immediately on his return to Great Britain i.e. from Friday 8 July 1988 onwards and that Friday 8, Saturday 9 and Monday 11 July 1988 should not have been treated as waiting days. The claimant contended that the days 1, 2 and 4 July 1988 (Friday, Saturday and Monday) should have been treated as the waiting days, even though he was abroad throughout those days.

To rule on this matter it is necessary to look at the relevant legislative provisions both of the United Kingdom and also of the EEC to arrive at a conclusion on the matter. To deal first with the UK legislation. The provision as to "waiting days" is to be found in section 14(3) of the Social Security Act 1975 which provides as follows:

"14. (3) A person shall not be entitled … to unemployment benefit … for the first 3 days of any period of interruption of employment."

The question is then what is meant by "any period of interruption of employment". The expression is not as such defined in the 1975 Act or elsewhere but section 17(1)(c) of the 1975 Act provides that:

"The expression 'day of interruption of employment' means a day which is a day of unemployment or of incapacity for work;"

No question of incapacity for work occurs here and the question is therefore whether the days 1, 2 and 4 July 1988 during which the claimant was absent from Great Britain were each of them to be regarded as "a day which is a day of unemployment" (section 17(1)(c)). In ascertaining whether or not a day is a "day of unemployment" one has regard to the provisions of section 17 of the 1975 Act and any regulations made thereunder. Section 17(1)(a)(i) provides that no day shall be treated as a day of unemployment "unless on that day [the claimant] is capable of work and he is … available to be employed in employed earner's employment …". It is conceded rightly in this case that throughout the time of his absence from Great Britain the claimant was "available to be employed in employed earner's employment". Therefore prima facie the days when the claimant was abroad could be treated as days of unemployment.

However regulation 7(1)(b) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 [SI 1983 No. 1598], as in force at the time (subsequent amendments have not altered this particular point) provided:

"7. (1) For the purposes of unemployment … benefit-

(a) …

(b) a day shall not be treated as a day of unemployment if it is a day in respect of which a person is disqualified for receiving unemployment benefit;"

Mr. Cornwell pointed to this provision and to section 82(5)(a) (which provides that a person is disqualified for receiving "unemployment benefit" when absent abroad) as together meaning that on the days of absence abroad the claimant could not treat those days as being days of unemployment, since under regulation 7(1)(b) of the 1983 Regulations those were days in which the claimant was "disqualified for receiving unemployment benefit" because of his absence abroad i.e. under section 82(5)(a) of the 1975 Act.

On a literal reading of the effect of those provisions that is undoubtedly the result. Regulation 7(1)(b) does not distinguish between one kind of disqualification for receiving unemployment benefit and another. For example no distinction is made between a disqualification for e.g. misconduct in losing employment (see section 20(1)(a) of the 1975 Act) or disqualification for absence abroad (see section 82(5)(a) of the 1975 Act).

Mr. Matson, however, contended that I should not follow such a literal interpretation. He pointed to the broad objectives of the Treaty of Rome (and in particular Articles 3, 11 and 69 thereof) as to freedom of movement for workers and the abolition of obstacles to it. He contended that the claimant came within the spirit of Article 69 of EEC Regulation 1408/71 and that there were only administrative non-compliances with it (see below). Therefore, said Mr. Matson, I ought not to hold that the claimant, while abroad in EEC countries and seeking work, was "disqualified for receiving benefit" within regulation 7(1)(b) of the 1983 Regulations.

I have given careful consideration to that contention but I consider that I must reject it. If there was anything in the UK legislation reviewed above which directly contravened a Directive or a Regulation of the EEC then of course I would have to give effect to the overriding effect of EEC Law. But in my view there is nothing here that does that. Mr. Matson urged upon me that were it not for certain administrative non-compliances with Article 69 of the EEC Regulation (export of unemployment benefit) the claimant could well have been able to claim such export. He was not in fact able to do so because no dispensation from the requirement of four weeks registration with the employment services of Great Britain had taken place nor had there been any waiver of this, nor had the claimant registered with the employment authorities in Spain or in France (see sub-paras. (a) and (b) of sub-para. (i) of Article 69 of Regulation No. 1408/71). Mr. Matson urged upon me that, although those were mere administrative non-compliances which meant the claimant could not take the direct benefit of Article 69, the overall tenor of that Article (coupled with the general matters in the Treaty of Rome) showed that a claimant who was absent abroad in an EEC country should not be regarded as "disqualified for receiving benefit" in the sense of the days of absence abroad being regarded as not days of unemployment at all. Mr. Matson stressed that the claimant was in fact unemployed throughout those days and had notified his absence to the Department who had, so to speak, concurred in that absence. I appreciate these arguments but I cannot consider that in the circumstances they can override the clear inter-locking wording of sections 14 and 17 and 82(5)(a) of the 1975 Act and of regulation 7(1)(b) of the 1983 Regulations. That regulation is itself precisely in point, being made under section 17(2) of the 1975 Act, which provides that regulations can make provision as to what days are or are not to be treated as days of unemployment for the purposes of unemployment benefit.

Lastly I allude to a further argument on the UK Law put to me by Mr. Matson at the conclusion of the hearing. This argument is as follows. As section 14(3) of the 1975 Act provides that "a person shall not be entitled … to unemployment benefit … for the first 3 days of any period of interruption of employment", no question of considering whether there is a disqualification for absence abroad arises for those days since there is no primary entitlement anyway. It is only after those three days had been treated as so to speak non-days that the disqualification provision of section 82(5)(a) of the Act relating to absence abroad can have any operation therefore, said Mr. Matson. The ruling ought to be that 1, 2 and 4 July 1988 were the waiting days and the disqualification for absence abroad under section 82(5)(a) could only operate thereafter.

This is an ingenious argument but I have ultimately come to the conclusion that I cannot accept it because section 14(3) refers to "the first three days of any period of interruption of employment". That means a period of days of unemployment but under the perfectly general provisions of section 17(1)(c) and (2) and regulation 7(1)(b) of the 1983 Regulations (all set out above) 1, 2 and 4 July 1988 could not be regarded at all as days of interruption of employment and therefore section 14(3) could not begin to apply until the commencement of a "period of interruption of employment" i.e. consisting of days of unemployment as defined in the legislation generally (see above). That period of interruption of employment as thus defined did not commence until the claimant had returned to the United Kingdom on 8 July 1988 and that day therefore had to be the first of the waiting days. I bear in mind that Mr. Matson stressed that the words used in section 14(3) were "shall not be entitled . . . to unemployment benefit" (my emphasis) and that therefore, he contended, section 82(5)(a) relating to disqualification for the receipt of unemployment benefit could not have any operation until those first three waiting days had expired. To my mind there is a kind of circular argument in this but looking at the provisions overall I must arrive at the conclusion that one first has to find out what was the "period of interruption of employment" before one can apply section 14(3) of the 1975 Act. In so doing one must look at section 82(5)(a) and regulation 7(l)(b) of the 1983 Regulations and the answer then becomes the answer that I have given above.

Date: 17 October 1990 (signed) Mr. M. J. Goodman

Commissioner