Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIB/1682/2010

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Robin C A White

Decision:  The decision of the tribunal of 25 January 2010 is not erroneous in law. I dismiss this appeal.

REASONS FOR DECISION

The issue in this appeal 

1.       This appeal concerns the proper interpretation of regulation 17(3) of the Social Security (Incapacity for Work) (General) Regulations 1995.[1] This regulation is concerned with the categories of exempt work, to which reference is made in regulation 16(3)(e) of the same Regulations. Such work does not affect a determination that a person is to be treated as incapable of work.

2.       Regulation 17(1) provides that the categories of work which are to be regarded as exempt work are those types of work set out in the paragraphs which follow regulation 17(1).

3.       Regulation 17(3) provides:

Work for which the earnings in any week do not exceed £88.50[2] and which—

(a)   is part of a treatment programme and is done under medical supervision while the person is doing it is an in-patient, or is regularly attending as an outpatient, of a hospital or similar institution, or

(b) is supervised by a person employed by a public or local authority or voluntary organisation engaged in the provision or procurement of work for persons who have disabilities.

4.       This appeal turns on the proper interpretation of sub-paragraph (b).

The background

5.       The appellant was in receipt of incapacity benefit.

6.       She first undertook some work on 18 April 2007. There is no dispute about the nature of this work. It constituted exempt work under regulation 17(4), but this exemption lasts only for 52 weeks.

7.       From 16 April 2008 (the first day after the end of the 52 week period), the appellant needed to bring herself within some other provision under which the work she did would constitute exempt work if it was not to affect her entitlement to incapacity benefit.

8.       The work in question was a continuation of the work she had been doing earlier. Her job title was ‘part-time learning support assistant’. She worked 11 hours a week in school term time and earned below the specified earning limit but above £20.00 per week. In the forms she supplied to the Department, the appellant reported that her support worker was the head teacher of the primary school where she worked. The forms were signed by the head teacher in this capacity.

9.       The appellant reported that the head teacher employed another person on a similar basis.

10.   The decision maker took the view that the work which the appellant had undertaken was not exempt work. On 5 May 2009 a supersession decision was made that the appellant was not entitled to incapacity benefit for specified periods because she had worked in work which did not constitute exempt work.

11.   On 12 May 2009 the appellant appealed against this decision. Her grounds of appeal were that she had acted on advice from the Department, and that she took issue with the interpretation of the regulations which appeared to exclude the head teacher from being treated as a support worker.

12.   The decision was reconsidered on 12 June 2009, and the decision was varied by adding a further week to the weeks in which the appellant was to be treated as capable of work, and so not entitled to incapacity benefit.

13.   The appeal first came before a tribunal on 7 August 2009, but was adjourned for an oral hearing. The Judge made a number of directions including:

… the Appellant may wish to take professional advice about these proceedings and this she can do by approaching a solicitor or welfare rights advisor or CAB but she is warned that the hearing will come on sooner rather than later and it is up to her to organise herself if she wishes the next hearing to be effective for her.

14.   A further paper hearing was erroneously listed but the decision on that paper hearing was set aside when it became apparent that there had been an error in listing the case for a paper hearing.

15.   The appeal was relisted for an oral hearing on 25 January 2010. The appellant did not attend, but had apparently telephoned to indicate that she wished the appeal to proceed in her absence. The Secretary of State was not represented.

16.   The outcome of the appeal was confirmation of the decision of the Secretary of State. A full statement of reasons was subsequently provided.

17.   The appellant sought permission to appeal to the Upper Tribunal, and this was given by the District Tribunal Judge. The appeal is not supported by the Secretary of State.

The grounds of the appeal

18.   The appellant’s grounds of appeal are that it was verbally agreed that the head teacher could be her support worker, and that the Secretary of State was not abiding by his own regulations.

19.   In granting leave the District Tribunal Judge observed:

Permission to appeal is granted because there is a potentially arguable point over the construction of the “52 week period” in the case of a person who does not work for a continuous period. In this case the appellant took a job in a school and was not paid during the holiday periods. Should the 52 week period be interpreted as a strict 364 day period or should it be 52 weeks of the permitted work?

20.   Let me deal first with the matter raised by the District Tribunal Judge in granting permission to appeal. This concerns the duration of the period of exempt work for which provision is made in regulation 17(4).

21.   Regulation 17(4) refers to work done ‘during a 52 week period beginning on the first day on which the work is done.’ That does not suggest to me that the provision is concerned with work done for 52 weeks, but with an unbroken period of 52 weeks beginning on the first day on which work is done.

22.   I am re-inforced in that view when I consider the context. The provisions on exempt work are part of a policy to encourage those in receipt of incapacity benefit to engage in some work which is appropriate given the reason they cannot work full-time. It is likely that such persons may not work week on week every week for a 52 week period. If the intention is that the exemption would apply in respect of the first 52 weeks in which the person actually worked, then the provision would have been drafted very differently.

23.   It follows that the tribunal did not err in law in simply accepting that the initial 52 period of permitted work ended on 15 April 2008.

24.   I turn now to the main point raised in this appeal, which concerns the interpretation of regulation 17(3).

25.   The appellant has suggested that she could be regarded as falling within the provisions of regulation 17(3)(a) because her doctor has supported her work and she has found this to be beneficial.

26.   The conditions of regulation 17(3)(a) are very specific. All the following conditions must be met: the work must be part of a treatment programme; the work must be done under medical supervision; the person doing the work must be either an in-patient, or a person regularly attending as an out-patient, of a hospital or similar institution. My understanding is that this latter condition is not met, since the support comes from the appellant’s GP, and is not part of a hospital treatment plan.

27.   That leaves the provision which is at the heart of this appeal: regulation 17(3)(b).

28.   The appellant argues that the head teacher is employed by a local authority, and that part of her work is in finding work for people with disabilities by virtue of obligations placed upon her by the disabilities discrimination legislation. There is a reference to the head teacher having undertaken training for the role of support worker. She further argues that there is no basis for saying that the person providing the support must be wholly engaged in the provision or procurement of work for persons who have disabilities. She also argues that the wording on the forms she received is misleading if the Department’s interpretation is to be regarded as correct.

29.   The Secretary of State makes the following submission:

7. In this case, the point in question is whether the Head Teacher at the school where the claimant is employed can be defined as a person who is employed by a public or local authority or voluntary organisation engaged in the provision or procurement of work for persons who have disabilities. This suggests that, whether or not they find work for people in general, they must specifically look for work for people with disabilities. So the emphasis is on the company and its employee who is supervising the work.

8. The support provided by the claimant’s “support worker” is to enable her to fulfil her existing duties, and this person has not been engaged by the relevant authorities specifically to provide or procure work for those with disabilities, rather she is engaged in teaching children who have learning difficulties and is providing support for her colleague, to do likewise within the same environment.

30.   In correspondence with the appellant, the Department has said: ‘We can only accept a person as a Support Worker whose job is wholly to find or provide work for someone with a disability.’ (Letter of 24 March 2009 from the Jobcentreplus to the appellant).

31.   What do the words of regulation 17(3)(a) mean? It concerns work which is supervised by a person employed by a public or local authority or voluntary organisation engaged in the provision or procurement of work for persons who have disabilities.

32.   It is not entirely clear whether the words ‘engaged in the provision or procurement of work for persons who have disabilities’ qualify the organisation or the person providing the supervision. But I am not sure this is determinative one way or the other.

33.   What is clear is that there will be a support worker who supervises the work of the person engaging in the work in order for it to be exempt. It is also clear from the words of the regulation that the purpose of the organisation is to provide or procure work for persons with disabilities.

34.   Can it be said that the primary school where the appellant worked is an organisation whose objectives are to provide or procure work for persons with disabilities?

35.   The appellant argues that if the school discriminated against people with disabilities, it would be breaching the discrimination legislation, and therefore must be regarded as an organisation whose objectives are to provide or procure work for persons with disabilities. That cannot be right. It would bring every employer within the scope of the organisations delimited by regulation 17(3)(a).

36.   I have already noted that the exempt work provisions are designed to provide an opportunity for some work for those in receipt of incapacity benefit without the cessation of their benefit. This is in the hope that it might result in some benefit recipients being able to return to work and to cease to require incapacity benefit. This is sometimes referred to as providing a pathway to work. It is an explicit part of the scheme for employment and support allowance, which is the successor to incapacity benefit.

37.   What the regulation contemplates is a four-cornered arrangement: the benefit recipient, the employer, the organisation providing or procuring work for persons with disabilities, and a support worker. In a typical situation, the organisation will procure or provide the work placement, the employer will agree, and the benefit recipient will be provided with specific support in relation to the work by the support worker. That support is likely to go beyond the support a helpful employer would provide, though there is no requirement that the support worker works alongside the benefit recipient.

38.   There is nothing in the words of the regulation to preclude the support worker and the benefit recipient being employed by the same organisation. However, it does seem to me from the statutory wording that the organisation providing or procuring the work must be one engaged in such work. The Department says the organisation must be wholly engaged in such work. The appellant says there is no justification for this limitation.

39.   The regulation does not use the word ‘wholly’, but simply refers to a public or local authority or voluntary organisation engaged in the provision or procurement of work for persons who have disabilities. I do not think that necessarily justifies a requirement that the organisation be wholly engaged in this way, but the wording of the regulation does suggests that the organisation’s main purpose must be the provision or procurement of work for persons who have disabilities.

40.   I am concerned with a situation in which it is being argued that the primary school where the appellant worked is an organisation engaged in the provision or procurement of work for persons with disabilities. I do not accept that it is. It is an organisation engaged in the education of young children.

41.   It follows that the head teacher of a primary school is not (absent some very special situation which is certainly not present here on the evidence before me) a person employed by an organisation engaged in the provision or procurement of work for persons with disabilities.

42.   The Secretary of State’s submission assumes that the head teacher does some teaching. The appellant points out that the head teacher in question does not teach, but rather manages and supervises the teaching in the school. I accept that, but it does not alter my conclusion.

43.   The appellant also submits that the wording of the regulations quoted in the Secretary of State’s submission are at variance with ‘the actual Regulations.’ They are not. I observe that at one point in the documentation, the appellant refers to an earlier version of the regulations. The current text of regulation 17 was substituted from 10 April 2006. The appellant appears to be referring to the earlier version of regulation 17. It is, of course, the current version of the regulations in force at the material time which must be applied to the appellant.

44.   By a slightly different route, the tribunal reached the same conclusion on the interpretation of regulation 17(3)(b) that I have. It follows that the tribunal has not erred in law.

Some concluding remarks

45.   I have some sympathy with the appellant. She appears to have been misled by advice both from the Department and from the school. In addition the wording on the forms did not provide any alert to the detailed and specific conditions in relation to what constitutes exempt work after the expiry of a 52 week period under regulation 17(4).

46.   It also appears that some forms the appellant completed and returned to the Department went astray so that the problems which arose in relation to the work after the initial 52 weeks were not picked up at an earlier point.

47.   That said, my role is to determine whether the tribunal erred in law in its consideration of the appellant’s appeal against the decision maker’s decision. I have concluded that it did not, and so must dismiss this appeal.

Signed on the original Robin C A White

on 7 January 2011 Judge of the Upper Tribunal