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[1994] UKSSCSC CIS_745_1993 (24 November 1994)

R(IS) 7/96

Mr. D. G. Rice CIS/745/1993

Remunerative work - school ancillary worker - whether paid holiday to be taken into account when averaging hours worked

The claimant worked in a school as a member of the non-teaching staff. Her hours of work were
20 per week during term-time (38 weeks of the year). In addition she was paid for six weeks holiday each year. For the remaining eight weeks of the year she neither worked nor was in receipt of paid holiday. Her claim for income support was refused on the grounds that she was in remunerative work within the meaning of regulation 5, Income Support (General) Regulations 1987. The adjudication officer considered that the total hours worked each year amounted to 880 (20 x 44 weeks), which when divided by 52 came to an average of 16.92 hours per week. On appeal the tribunal upheld the adjudication officer's decision. The claimant appealed to the social security Commissioner

Held that:

the claimant's hours of work fluctuated during the academic year but there was a recognisable cycle over the year. She therefore fell within regulation 5(2)(b)(i). The cycle was one year (para. 6);

in deciding the number of hours worked per week during the cycle, the relevant figure to be divided by 52 was 760 (20 x 38 weeks), not 880 The claimant was only required to actually work for 38 weeks. Regulation 5(1) defines remunerative work as work "in which a person is engaged" (not for which a person is engaged). The implication was that the claimant actually had to be working. This view was supported by the meaning of regulation 5(3) as explained in paragraph 14 of CIS/748/1992 [now reported as R(IS) 15/94] (para. 10);

thus the claimant was engaged in work on average for less than 16 hours a week and so was not disentitled to income support.

[Note: Regulation 5 of the Income Support (General) Regulations 1987 was amended by the Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1995, SI 1995 No. 516, regulation 19, with effect from 10 April 1995. This added paragraph (3B) which provides for the exclusion of school or similar holiday periods when establishing average hours of work where a person's cycle of work is one year.]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the SSAT given on 18 March 1993 is erroneous in point of law, and accordingly I set it aside. As it is convenient that I give the decision the tribunal should have given, I further decide that the claimant, as from her date of claim, was not disentitled to income support by reason of her being in remunerative work.

This is an appeal by the claimant, brought with leave of the tribunal chairman, against the decision of the SSAT of 18 March 1993. In view of the complexity of the case I directed on oral hearing. At that hearing the claimant, who was present was represented by Mr. D. Elliott, a housing adviser from the Colchester Borough Council, whilst the adjudication officer appeared by Mr. H. Dunlop of Counsel, instructed by the Solicitor's Office of the Department of Social Security.

3. On 21 September 1992 the claimant sought income support in her own right, and declared to the local office that she had started work for an average of 15.38 hours per week. Thereupon the matter was investigated, and it was established that

the claimant was working in excess of 16 hours per week, and income support was withdrawn. A query then arose as to whether or not the claimant's earnings should be averaged over the year, because the claimant was employed by a school, and did not work during the school holidays. The adjudication officer accepted that this was possible. The claimant had entered into a contract of employment for non-teaching staff, under which she was required to work 20 hours per week (exclusive of her lunch-time break). The engagement was for 44 weeks per year, of which six represented paid holiday (not to be taken during term time). The adjudication officer considered that the total hours worked each year throughout the contractual period amounted to 20 hours x 44 weeks = 880 hours, which when divided by 52 threw up an average figure of 16.92 hours per week. As this was in excess of the statutory limit for entitlement to income support, the adjudication officer on 9 November 1992 made a decision to the effect that the claimant was not entitled to income support, because she was in remunerative employment. In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer.

Section 124(1) of the Social Security Contributions and Benefits Act 1992 provides, where relevant to this case, as follows:

"124(1)-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;"

Regulation 5 of the Income Support (General) Regulations 1987, SI 1987 No. 1967, in so far as it is relevant, provides as follows:

"5. (1) Subject to the following provisions of this regulation, for the purposes of [section 124(1)(c) of the Social Security Contributions and Benefits Act 1992] (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 16 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) ....

(b) where the number of hours for which he 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 to which the person does no work, those periods but disregarding any other absences);

(ii) ...

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

It is not in dispute in this case that the claimant was engaged to work 20 hours per week for 38 weeks i.e. during term time. The difficulty arises out of the six weeks paid holiday, which were to be taken out of term time. Was she deemed, during that period, to have worked 20 hours per week?

As regards the 38 weeks of the academic year covering term time, clearly the claimant worked 20 hours per week. It is also clear that, during eight of the remaining 14 work weeks, the claimant neither worked nor was in receipt of paid holiday. It follows that, during the academic year, her hours of work fluctuated. For the most part she worked 20 hours a week, but there were occasions when she did no work at all (and in addition received no holiday pay). In those circumstances, I consider that she fell within regulation 5(2)(b)(i). The cycle was one year. The words "including where the cycle involves periods in which the person does no work, those periods ..." clearly include all the non-working weeks (including the holiday weeks) (see para. 15 of CIS/748/1992) [now reported as R(IS) 15/94].

Now, in determining the number of hours worked per week throughout the cycle, regulation 5(3) has no relevance. In the words of paragraph 14 of CIS/748/1992 [R(IS) 15/94]:

"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 recognised customary or other holiday. As I understand it, what paragraph (3) of regulation 5 therefore means is as follows. If, having first ascertained the average number of hours that a claimant works over the appropriate period or cycle is [16] or more, then if 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 what was the total hours into which the 52 weeks making up the cycle had to be divided, the 760 hours worked during the 38 weeks of term time or the 880 hours made up of the time actually worked together with the notional working time when the claimant was on paid holiday? Both Mr. Elliott and Mr. Dunlop were of the view that I should only concern myself with the hours actually worked, and that accordingly the correct figure into which 52 should be divided was 760. They also drew my attention to CIS/3/1989, where it was held that an hour each day during which the claimant in that case consumed his lunch and for which he was paid, should not be taken into account as working time. However, that case dose not really assist me. In the present instance, there was an express stipulation under the claimant's contract of service that the 20 hours per week should not include any lunch break, and the exclusion of the time spent in eating lunch in CIS/3/1989, though paid, for has no bearing on how holiday periods should be dealt with.

The plain fact is that under the claimant's contract she was employed each year for 44 weeks, but was only required actually to work for 38 of them. She was still employed during the six weeks of holiday. She could describe herself as "in employment" or "in work" during that period. She was still engaged under her contract of service. But was that enough to allow the notional hours of employment falling within the holiday period to be included in the number of hours actually worked during the 44 weeks of employment?

Regulation 5(1) defines remunerative work as work "in which a person is engaged". It does not define it as work for which a person is engaged. The implication is that the claimant has actually to do the work, in which event weeks when a person is on holiday and necessarily not engaged to work do not constitute weeks of remunerative work within the definition. Support for this view can be derived from regulation 5(3). For that regulation, which, as explained in paragraph 14 of CIS/748/1992, comes into play only when a person is, during his working weeks, found to be engaged in remunerative work, provides that he will be deemed to be in remunerative work when he is absent from work by reason of a holiday. The implication is that, without this provision, he would be considered not in remunerative work during the holiday period. Although regulation 5(3) is of no direct assistance in determining the average number of hours worked over the relevant cycle, the implication to be derived from its terms suggests that, for the purpose of determining the relevant average, holiday weeks shall not be deemed to be weeks of remunerative work.

Accordingly, although it is not altogether an easy point, I am satisfied that, in the present case, the notional hours of work attributable to the weeks when the claimant was on holiday were not to be included in the total number of hours worked during the relevant cycle. It follows that the relevant figure to be divided by 52 was 760. On this basis, the average hours per week for which she was engaged was less than 16, and as a result she was not disentitled to income support.

The tribunal reached the wrong conclusion, and I must therefore set aside their decision as being erroneous in point of law. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I can conveniently substitute my own decision.

For the reasons given above, my decision is as set out in paragraph 1.

Date: 24 November 1994 (signed) Mr. D. G. Rice

Commissioner