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Cite as: [1991] UKSSCSC CFC_4_1989

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[1991] UKSSCSC CFC_4_1989 (06 March 1991)

R(FC) 2/91

Mr. R. A. Sanders CFC/4/1989
6.3.91

Remunerative work – paid holiday – whether claimant "carries out activities" for the hours covered by holiday pay

The claimant was a lone parent with one dependant child and made a claim for family credit on 21 July 1988. She normally worked 25 hours per week.

In the week of the claim she had worked for 15 hours and for the previous two weeks, 20 hours in each. She received five hours holiday pay in the first of the three weeks.

The adjudication officer disallowed the claim on the grounds that the claimant did not satisfy regulation 5(1) of the Family Credit (General) Regulations 1987 in that she did not carry out activities in the course of her work for nor less than 24 hours in any of the relevant three weeks.

The tribunal, in allowing her appeal, held that as she had worked 20 hours and was paid a further five hours holiday pay in one of the relevant weeks, she had been engaged in remunerative work for more than 24 hours in that week and therefore satisfied regulation 5(1) of the Family Credit (General) Regulations 1987.

The adjudication officer appealed to a social security Commissioner.

Held that:

regulations 4 and 5 of the Family Credit (General) Regulations must be taken together in order to allow regulation 4(3) to operate in relation to both (para. 3) A claimant may be treated as engaged in remunerative work, by including hours during which he is absent from work by reason of a recognised, customary or other holiday, to make up the requisite number of hours.

The appeal was dismissed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal dated 15 November 1988 is not erroneous in law. Accordingly the adjudication officer's appeal does not succeed.

The claimant is a lone parent with one dependant child. At the material time she was employed as a machine operator and normally worked 25 hours a week. She made a claim for family credit on 21 July 1988. In the week of that claim she actually worked for only 15 hours and in the two previous weeks 20 hours. However in the first of those three weeks she also received five hours holiday pay. An adjudication officer then took the view that the claimant did not satisfy regulation 5(1) of the Family Credit (General) Regulations 1987 because she did not in any of the relevant three weeks "carry out activities in the course of [her] work for not less than 24 hours …". The tribunal allowed her appeal. They said that the effect of regulation 4(3) of the General Regulations was that the five hours paid holiday in the first of the three relevant weeks could be counted towards the necessary 24 and accordingly she satisfied the condition. The adjudication officer now appeals against the tribunal's decision. At an oral hearing he was represented by Mr. J. Coggins of Counsel instructed by the Solicitor to the Departments of Health and Social Security. The claimant did not attend and was not represented. The narrow issue in the case is whether the five hours paid holiday time can be counted toward the qualifying 24 hours required by regulation 5(1) of the General Regulations.

Section 20(5)(b) of the Social Security Act 1986 requires that, as a condition of entitlement to family credit, a claimant must when the claim is made be "engaged and normally engaged in remunerative work". What is or is not to be treated as remunerative work is left to regulations: section 20(12)(c) of the 1986 Act. The relevant provisions are in regulations 4 and 5 of the General Regulations (as in force at the material time) which read as follows:

"Remunerative work

- (1) Subject to the following provisions of this regulation, for the purposes of section 20(5)(b) of the Act (conditions of entitlement to family credit) and these Regulations, remunerative work is work in which a person is engaged, or, where his hours of work fluctuate, is engaged on average, for not less than 24 hours a week, being work for which payment is made or which is done in expectation of payment.

(2) The number of hours for which a person is engaged in work shall be determined -

(a) where no recognisable cycle has been established at the date of claim in respect of a person's work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which he is expected to work in a week;

(b) where the numbers of hours for which he engaged fluctuate, by reference to the average of hours worked over –

(i) if there is a recognisable cycle of work, 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);

(ii) in any other case, the period of five weeks immediately preceding the week in which the claim was received, or such other length of time preceding that week as may, in the particular case, enable the person's weekly average hours of work to be determined more accurately.

(3) A person shall be treated as engaged in work during any period during which he is absent from work if the absence is by reason of a recognised, customary or other holiday.

Engaged in remunerative work and normal engagement

- (1) Subject to paragraph (3), a person shall be treated, for the purpose of section 20(5)(b) of the Act (conditions of entitlement to family credit), as engagement in remunerative work only if he carries out activities in the course of his work for not less than 24 hours in -

(a) the week of claim; or

(b) either of the two weeks immediately preceding the week of claim and he has not become unemployed before the date of claim.

(2) not relevant

(3) not relevant."

Now it might appear at first glance that it was intended that regulation 4 should deal with the number of hours required to be worked before the work could be said to be "remunerative work" (thus taking a claim out of income support and into family credit) and regulation 5(1) with the kinds of hours that may be used to make up the number, the effect of the latter provision being that it is only hours at work that count towards the 24. However, regulation 4(3), which allows hours of absence on holiday to be counted, might appear to have more to do with the regulation 5 subject matter than with that of regulation 4, or at the least it might seem to span the two. Nevertheless, in his written submissions, the adjudication officer who is now concerned with the case contended, with only tepid support from Mr. Coggins, that regulation 4(3) must be limited in its application to determine the hours of "remunerative work" in regulation 4(1) and did not assist with regard to the condition of being at work for 24 hours imposed by regulation 5(1). Now one might have guessed that regulation 4(3) was intended to work to a claimant's advantage. But if the adjudication officer's argument is correct the advantage is snatched away well before any claimant would have had the chance to appreciate it. That is because, on the adjudication officer's approach, a claimant who, like this one, satisfied the 24 hours test imposed by regulation 4(1) only by counting the holiday hours allowed by regulation 4(3) would have that indulgence removed by regulation 5(1) because the holiday hours would not count towards the 24 required by that provision. That result might be thought to be a supreme example of taking with one hand what had a moment before been given with the other. The result of course would be to give regulation 4(3) no sensible function whatever; indeed in a case like the present one what would happen is that, at any rate for the week in question, the claimant would be taken out of income support (because she had too many hours of remunerative work) and would not qualify for family credit (because she did not have enough hours at work), the apparent indulgence provided by regulation 4(3) is turned to the claimant's disadvantage. Mr. Coggins very fairly conceded that such an outcome was unlikely to have been intended and he agreed that to make sense of all the provisions of regulations 4 and 5(1) they must be then together so as to allow regulation 4(3) to operate in relation to both. In fact, as it seems to me, there is no great difficulty about that because while paragraphs 1(1) and (2) of regulation 4 are about the number of hours which must be worked before the work is to count as remunerative work, both regulations 4(3) and 5(1) have in common that they are about the kinds of hours that enable a person to be treated as engaged in work. The drafting might have been more satisfactory had the holiday hours provision been in regulation 5, but I propose firstly not to allow the headnote to regulation 4 to determine the matter, secondly to take account of the plain wording of regulation 4(3) and of the obvious inter-relation of regulations 4 and 5, and thirdly to take considerable account of the fact that if regulation 4(3) is confined in the way contended for by the adjudication officer it seems to have no sensible function at all; having taken those matters in to account I conclude that a claimant is to be treated as engaged in remunerative work both for the purpose of regulation 4 and regulation 5 notwithstanding that his 24 hours include hours "during which he is absent from work by reason of a recognised, customary or other holiday".

I do not need to decide what happens in the case of unpaid holidays for that does not arise in this case. It may be, though again I do not need to decide, that the outcome is that regulation 5(1) catches only those who are absent from work because they are sick or those who, while not at work, are on call. Now why absence on holiday should be treated differently from absence through sickness is not immediately apparent, but that is the outcome on any view of the effect of regulation 4(3).

I should not leave this case without mentioning that I was referred by Mr. Coggins to the recent decision in CFC/1/1989 where the facts were more or less identical to those in this case. Now the Commissioner in that case decided that "carries out activities" in regulation 5(1) of the Income Support (General) Regulations 1987 was to be given the same meaning as "undertakes activities" in regulation 5(1) of the Family Income Supplements (General) Regulations 1980 (now repealed) and I do not doubt that this is so. There was however no equivalent of regulation 4(3) of the 1987 Regulations in the 1980 Regulations and it may be that regulation 4(3) was not drawn sufficiently to the Commissioner's attention when she decided that the claimant in CFC/1/1989 did not succeed. At all events the effect of regulation 4(3) was not fully dealt with in that case and that may explain why a different conclusion was reached on similar facts.

The outcome is that the tribunal's decision was correct and the claimant is entitled to family credit in respect of the claim she made on 21 July 1988. I assume there will be no difficulty in determining the amount to which she is entitled. If there are any problems in that regard the case can come back to me on the application of either party.

Date: 6 March 1991 (signed) Mr. R. A. Sanders

Commissioner