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[1993] UKSSCSC CIS_748_1992 (28 October 1993)

R(IS) 15/94

Mr. M. J. Goodman CIS/748/1992

28.10.93

Remunerative work - ancillary school worker - whether school holidays to be taken into account in averaging the number of hours worked

The claimant's wife, whose hours of work fluctuated, worked as a school receptionist for an average of fractionally over 24 hours a week in term time. Her contract of employment which commenced in June 1990 prescribed that she would be paid for the hours worked in term time only and that the school holidays would be unpaid. Following a claim on 7 January 1992 the claimant was refused income support on the grounds that his wife was engaged in remunerative work within the meaning of regulation 5(2)(b)(i) of the Income Support (General) Regulations 1987. On appeal the tribunal upheld the adjudication officer's decision averaging the hours over the eight week period ending on 2 January 1992. The claimant appealed to the Commissioner.

Held that:

the hours of work fluctuated over a recognisable cycle which was a one year period of 52 weeks (para. 12);

because there was a continuing contract of employment which made specific provision for school holidays, these holidays fell within the meaning of the words "where the cycle involves periods in which the person does no work" in regulation 5(2)(b)(i) and not under "any other absences"; the school holidays therefore fell to be taken into account when averaging out the number of hours over the yearly cycle (para. 15 and 16).

The appeal was allowed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal from the decision of the social security appeal tribunal dated 29 May 1992 as that decision is erroneous in law and I set it aside. My decision is that the claimant is not disentitled to income support under his claim dated 9 January 1992, by reason of his wife's working at R-School as a telephonist/receptionist and school office assistant. Although that work was remunerative work, the claimant's wife was engaged in it on average, at the date of claim and thereafter, for less than 24 hours a week: Social Security Act 1986, section 20(3)(c) and Income Support (General) Regulations 1987, SI 1987 No. 1967, regulation 5. The claimant's entitlement to income support in respect of his claim is to be forthwith assessed by the adjudication officer accordingly: Social Security Administration Act 1992, section 23.

This is an appeal to the Commissioner by the claimant, a man born on 26 June 1944. The appeal is against the unanimous decision of the social security appeal tribunal dated 29 May 1992, which dismissed the claimant's appeal from a decision of the local adjudication officer issued on 29 January 1992 as follows:

"Income support is not payable from 9 January 1992. This is because the claimant's partner is engaged in full-time remunerative employment."

The appeal was the subject of an oral hearing before me on 8 September 1993 at which the claimant was present, addressed me, and gave evidence to me. The adjudication officer was represented by Mr. L. Scoon, Counsel, of the Office of the Solicitor to the Department of Health and Social Security. I am indebted to the claimant and to Mr. Scoon for their assistance to me at the hearing.

The tribunal's findings of fact were as follows:

"The claimant ceased employment on 31 December 1991 and registered with the Unemployment Benefit Office on 7 January 1992. In his claim form the appellant stated that his wife worked for 22 hours a week as a receptionist at R-School. In the case papers the employer's certificate for the period 14 November 1991 to 2 January 1992 as to the number of hours worked showed respectively for each week 31½ hours, 31, 23½, 26, 29, 33, 19½, 0. [This gives an average for the period of eight weeks of fractionally over 24 hours per week]. The employer's certificate confirmed that [the claimant's wife] is paid only for the hours worked with no holiday retainer."

It should also be added that the adjudication officer stated the facts to the tribunal as follows:

"On the claim form [the claimant] says that his wife works for 22 hours per week as a receptionist at R-School. A request for wage slips showed that on pay day 9 January 1992 she was paid for six hours work, 16 January 1992 for 28½ hours work and 23 January 1992 for 38 hours."

There again those figures show an average of fractionally above 24 hours.

There was also before the tribunal a formal document from R-School dated 3 March 1992 (i.e. after the date of claim in January 1992) headed "Contract of Employment", relating to the claimant's wife. It stated that her date of commencement of employment was June 1990, her remuneration was £4.32 per hour, and her hours of work were "22½ hours per week-term time only". It also stated "School holidays unpaid-any work during holiday to be arranged with [the Head Master's secretary]" and "Sickness: statutory sick pay-term time only".

Dealing with this document the tribunal said in their reasons for decision:

"The tribunal acknowledge the additional evidence produced by [the claimant] as to the contract of employment of March [1992] but felt that this was not relevant to a decision as to payment or otherwise of income support from 9 January 1992."

It was common ground at the hearing before me on 8 September 1993 that this statement was erroneous in law since clearly the "Contract of Employment", though prepared apparently after the date of the adjudication officer's decision, was nevertheless an indication by the school of what it regarded the claimant's wife's terms of employment to be. There was no suggestion that the claimant's wife did not agree with the statement of those terms. It was therefore persuasive evidence on the matters covered by it for the period back to June 1990 when the claimant's wife first started employment. I therefore set the tribunal's decision aside on that ground and also on the ground, again common to the parties (the adjudication officer supporting the appeal at this point), that the tribunal failed to indicate in its decision why it took into account a particular "cycle" (see below) i.e. the eight weeks from 14 November 1991 to 2 January 1992 and did not for example accede to the claimant's suggestion that the appropriate cycle was a yearly one. Although it is clear to me that the tribunal took considerable trouble with this case, I am satisfied that this ground of appeal is correct also. For that reason also I set the tribunal's decision aside.

Both parties asked me at the hearing not to remit the case to another tribunal but to deal with the matter myself. I consider this an appropriate case for me so to do. Almost all of the relevant facts were before me. In evidence to me at the hearing the claimant also indicated that his wife had taken no other employment since June 1990 when she started working for the school. She regarded herself as "on call" to the school during school holiday periods and indeed had worked odd days during school holidays when required to do so.

The law on the subject of disentitlement to income support for the claimant or partner being in remunerative employment is to be found in section 20(3)(c) of the Social Security Act 1986 (now replaced by section 124(1)(c) of the Social Security Contributions and Benefits Act 1992 and regulation 5 of the Income Support (General) Regulations 1987, SI 1987 No. 1967, see below). Section 20(3)(c) of the 1986 Act (in force at the time) provided as follows:

"20. (3) A person in Great Britain is entitled to income support if–

(a)-(b) . . .

(c) he is not engaged in remunerative work and, if he is a member of a married or unmarried couple, the other member is not so engaged."

Section 20(12)(c) of the 1986 Act provided that regulations could provide "as to what is or is not to be treated as remunerative work". In pursuance of that power, regulation 5(1)-(3) of the Income Support (General) Regulations 1987 provides as follows:

"Persons treated as engaged in remunerative work

(1) Subject to the following provisions of this regulation, for the purposes of section 20(3)(c) of the [Social Security Act 1986] (Conditions of Entitlement to Income Support), remunerative work is work in which a person is engaged, or, where his hours of work fluctuate, he is engaged on average, for not less than 24 hours a week [now 16 hours but 24 hours is the figure applicable to this case] 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 in respect of a person's work, by reference to the number of hours or, where those hours are likely to fluctuate, the average hours, which [she] is expected to work in a week;

(b) where the number of hours for which [she] is 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 no work, those periods but disregarding any other absences);

(ii) in any other case, the period of 5 weeks immediately before the date of claim or the date of review, or such other length of time as may, in the particular case, enable the person's average hours of work to be determined more accurately;

(3) A person shall be treated as engaged in remunerative work during any period for which [she] is absent from work referred to in paragraph (1) if the absence is either without good cause or by reason or a recognised, customary or other holiday." (my emphasis).

In an unstarred decision on file CIS/261/1990, another Commissioner dealt with the application of this regulation to a "servery assistant" at a residential school. That particular claimant (a lady) worked 25 hours per week during term times. At half terms she worked 9.00 am to 1.00 pm on Fridays. During the Christmas, Easter and summer holidays she worked odd days or weeks. The facts, though similar to those of the present case, are therefore not identical. The learned Commissioner held that the appropriate cycle to take in her case was what he described as "a one year period of 52 weeks". To that extent I would follow that decision in the present case. In the present claimant's wife's case there was "a recognisable cycle of work" and the number of hours for which she was engaged fluctuated. The case therefore comes within regulation 5(2)(b)(i). Moreover, like the Commissioner on file CIS/261/1990 I hold that the appropriate cycle is a yearly one. It does not appear particularly to matter where one takes the year as being the academic year i.e. from September to September or the calendar year i.e. from 1 January to 31 December. Similarly it would not appear to make any difference if the tax year from 6 April to 5 April of the next year, as the claimant suggested, were taken into account. The fact is that the appropriate cycle is a yearly cycle.

However where I part company with the learned Commissioner who decided CIS/261/1990 is in his interpretation of the words in regulation 5(2)(b)(i) "including, where the cycle involves periods in which the person does no work, those periods but disregarding any other absences". The Commissioner in CIS/261/1990 held that the school holidays did not come within the expression "periods in which the person does no work" and therefore could not be included in working out the average over the year of the hours worked by the claimant in that case. The learned Commissioner said (para. 7 of his decision):

"I turn therefore to the issue of the meaning of 'periods in which the person does not work'. In my judgment this covers a period during which a person would normally work but does not work. It covers a person who works in shift work such as two weeks off and two weeks on where in the two weeks on he puts in an enormous number of hours, but does not work in the off weeks. In such a case the off weeks are included to come to a fair average. The absences which are to be disregarded are the absences by reason of recognised or customary holidays or other holidays or possibly those periods in which he does not work by reasons of sickness. In regard to the cycle of 52 weeks in the circumstances of this case the recognised and customary holidays are to be excluded from the period of the cycle."

I regret I cannot agree with that construction, certainly not on the facts of the present case. The learned Commissioner's reference to "recognised or customary holidays" is presumably a reference to regulation 5(3) (see para. 11 above). However regulation 5(3) is not dealing with the question of hours of work as averaged but is dealing with the question of when a person shall be treated as engaged in remunerative work as defined in paragraph (1) of regulation 5. It in effect provides that such a person shall be deemed to be engaged in remunerative work even though he is absent either without good cause or by reason of a recognised customary or other holiday. As I understand it, what paragraph (3) of regulation 5 therefore means is as follows. If, having first ascertained that the average number of hours that a claimant is away either without good cause or by reason of a recognised, customary or other holiday, the disentitlement continues throughout that period of absence. But it does not seem to me correct to regard regulation 5(3) as bearing on what is meant by "periods in which the person does no work . . . but disregarding any other absences" in regulation 5(2)(b)(i).

Whether or not a holiday comes within such periods depends in my view, not on regulation 5(3) which has a different purpose, but whether the holiday in question can be brought within the words "the cycle involves periods in which the person does no work". Some holidays e.g. those taken ad hoc would not come within that phrase since the "cycle" did not "involve" them i.e. the contract did not make specific or advance provision for them. But in the present case the school holidays though undoubtedly "a recognised, customary or other holiday" for the claimant within regulation 5(3), (see R(SB) 7/84 and R(U) 4/88(T)), were in fact squarely within the words "where the cycle involves periods in which the person does no work". That means in the present case, in my view, that the school holidays should for the claimant's wife be taken into account when averaging out the number of hours over the yearly cycle that she worked. Her contract of employment with the school was a continuing contract and was not just one contract after another for each individual term. Her contract makes specific provision as to holidays i.e. that the claimant would not be paid unless she were asked to do work in the holidays. Nevertheless throughout the holidays the claimant in fact remained entitled to the title of school receptionist etc. It may be that that distinguishes this case on the facts from CIS/261/1990, as the claimant submitted.

At all events, my judgment is that in the present case the claimant's wife's school holidays undoubtedly came within the words "including, where the cycle involves periods in which the person does no work, those periods" and therefore had to be counted when averaging. The holidays did not come under the head of "any other absences" which have to be disregarded. As it is common ground that the result of that method of averaging is to bring the claimant's wife's averaged hours of work throughout the year below 24 hours per week, I have given my decision accordingly in paragraph 1 above. The local adjudication officer will now need to assess forthwith the actual financial entitlement of the claimant to income support for the appropriate period.

The claimant told me at the hearing that he was in fact awarded income support in mid February 1992, his wife having been awarded family credit before that date and from the beginning of January 1992, on the basis that she was working 24 hours plus per week. Essentially what is therefore involved is six or seven weeks of income support. The family credit that the claimant's wife has already received for that period will of course have to be taken as part of the claimant's income, when assessing the amount of his entitlement to income support.

I would lastly mention briefly a point which emerged at the hearing before me on 8 September 1993. The claimant was describing the tribunal hearing and making a point (which he had made in a letter dated 19 July 1992, No. 33 in the appeal papers) as to the presenting officer being the same person to whom he had earlier spoken on the telephone when dealing with this case. I do not think I need go into that particular matter now, but the claimant did add that he was not sure of this matter until, as he put it, he went into the tribunal room and saw the presenting officer there. If in fact the presenting officer were with the tribunal before the claimant was shown into the tribunal room there could of course have been a breach of the rules of natural justice. It is of course important that one party to an appeal e.g. the presenting officer, should not be in the presence of the tribunal before the other, even in a case where the presenting officer has been engaged in earlier cases. I will say no more about it than that because, as I have set the tribunal's decision aside on other grounds, I have not needed to make a final ruling on this point. I should also emphasise that I have not had an opportunity to have enquiry made of the clerk of the tribunal about this particular matter.

Date: 28 October 1993 (signed) Mr. M. J. Goodman

Commissioner