PLH                                                                             Commissioner's File:  CIS 1385/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Income Support
Appeal Tribunal:	Sunderland 
Tribunal case ref:	U/44/236/2001/01024
Tribunal date:	8 November 2001
Reasons issued:	18 January 2002

1.	This claimant’s appeal is dismissed, as in my judgment there was no material error of law in the decision of the appeal tribunal chairman sitting alone at Sunderland on 8 November 2001, confirming that of an officer on behalf of the Secretary of State that the claimant was not entitled to income support on the claim he made for the period from 15 February 2001, because on that date he fell to be treated for the purposes of section 124(1)(c) Social Security Contributions and Benefits Act 1992 as engaged in remunerative work. 
2.	The claimant is a man now aged 34 who is a single parent with three children.  According to the evidence before the tribunal and not in dispute, he had for some nine months before the date of his claim been working, regularly but intermittently, for a firm supplying maintenance and support services for offshore oil rigs.  This entailed him working on rigs for intensive periods of two or three weeks at a time for which he was paid, interspersed with periods of two weeks or so at home onshore for which he was not paid.  The family was fortunate in that his mother looked after the children in the periods he was away, so as to make the whole thing possible.  He remained throughout as an employee on the books of the firm (“Sureclean”), but his engagement was on an “as and when required” basis, with no guarantee that they would call him in for work in any particular weeks and no entitlement to pay for weeks when they did not.  He was paid regularly under PAYE for the weeks offshore when he was working, and issued nil payslips for the weeks when he was not.  
3.	It was common ground between the Secretary of State and the claimant’s representative, and accepted by the tribunal, that although he was in fact called in for work on a regular and recurrent basis, this did not happen in any recognisable cycle or pattern such that it could be predicted whether the company would need him to work in any particular week or not.  The appeal to the tribunal arose because the department noticed that he had begun to make regular and repeated claims for income support on each occasion he came back on shore: the apparent regularity of this and the common pattern of much offshore work (with “periods on” and “periods off”) raising an obvious question whether he had actually ceased to be engaged in remunerative work in the periods for which he claimed benefit.  
4.	For this purpose what had to be determined was whether he fell within the extended definition of “remunerative work” in regulation 5 of the Income Support (General) Regulations 1987 SI No. 1967, providing so far as material as follows:
“Persons treated as engaged in remunerative work.  
5.	(1)	Subject to the following provisions of this regulation, for the purposes of [section 124(1)(c) SSCBA 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)  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 of the hours, which he is expected to work in a week; 
		(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 in which the person does not 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 such other length of time as may, in the particular case, enable the person’s average hours of work to be determined more accurately.”
5.	Having managed to obtain details of the claimant’s earnings and periods of work over the 25 weeks down to the claimant’s most recent income support claim which he made for the period from 15 February 2001 (pages 1D to 49), the Secretary of State’s officer made the decision of 23 February 2001 which eventually came on appeal before the tribunal.  This is recorded in the submission at page 1A as being that the claimant was “not entitled to income support from and including 15 February 2001 … because he is in remunerative employment”.  The actual decision as notified to the claimant at the time is not in evidence, but the basis for it is recorded clearly in the contemporaneous note made by the Secretary of State’s officer on the same date at pages 90 to 93, where after setting out the details of the claimant’s earnings from his payslips from 8 September 2000 to 10 February 2001, the officer noted that:  
“Customer has worked 18 of the last 25 weeks and has earned net £316.54 per week averaged over 25 weeks.  Although there is not a pattern of work as in an identifiable cycle of work – 2 weeks on and 2 weeks off – he has worked since March 2000 and for this firm since the beginning of April 2000.  Customer has also averaged over 16 hours per week over the 25 week period.  If I use any 5 week period customer has still worked in excess of 16 hours per week.  [The claimant] is an “offshore” worker.  He has worked for Sureclean since the beginning of April 2000.  I have determined that under reg 5(2)(b)(ii) IS General Regulations.  I have also had regard to R(IS) 8/95.”
6.	In other words the Secretary of State’s officer was determining, consistently with the guidance given by the Commissioner in case R(IS) 8/95 as expressly noted, that although the claim was being made for an “off week” during which the claimant would not actually be working, the regulation required the hours of work for a person in the claimant’s position to be averaged over a longer period than just that one week; and in view of the lack of any recognisable predictable pattern this had to be done under reg 5(2)(b)(ii) by reference to a past period of weeks immediately before the date of claim. Whether one picked a 5-week period, or the entire period of 25 weeks for which work and pay details had been supplied, for calculating the average, there was no doubt this showed the claimant to be working an average of well over 16 hours a week as an offshore worker at the time of his claim.  
7.	That decision was confirmed by the tribunal on 8 November 2001, at a full effective hearing after two previous adjournments for further submissions and evidence and for the case to be gone into more thoroughly.  The hearing on 8 November 2001 took place before an experienced chairman, Mr Coia, with (I am pleased to note on this occasion) both the claimant and the Secretary of State being competently represented.  The claimant himself attended and gave full evidence about the arrangements between himself and Sureclean and the way he had been working.
8.	The two questions which any tribunal dealing with a case of this sort has to address are first whether the facts establish that at the time of the relevant claim the claimant no longer has an employment, even a casual one, in which it can be said he is currently “engaged”; and second if he is in that sense still “in work”, whether his average weekly hours for the purposes of regulation 5 are shown to be less than 16. 
9.	There is no doubt that the tribunal were right to proceed on the basis that the claimant remained in his employment as an offshore worker at the date of his claim. This, as the presenting officer pointed out, had in no sense been terminated and was continuing on the same basis as before, even though his working weeks were not guaranteed and he got no pay for those he was off.  It is well established that a contract, casual or “ad hoc” worker may remain engaged in work for this purpose even at times when not actually working, and that even the continuing existence of a contractual relationship is not determinative (compare most recently the decision of the Tribunal of Commissioners in case CJSA 2079/98 and others, para 22).  Where, as here, there is in fact a continuing relationship (and even a contract) between an offshore worker and those who engage his services, it is quite clear that engagement in remunerative work for the purposes of section 124(1)(c) does continue during periods when the claimant is onshore, not physically working and not at that time being paid, so long as the average of hours worked according to the calculation in regulation 5 is not shown to drop below 16: see the Commissioner’s decision in CSJSA 1247/01, para 10.  
10.	In my judgment therefore the tribunal was quite right to proceed on the basis that the only relevant question was the calculation of the average, and the claimant’s representative does not seek to argue otherwise on this appeal.
11.	On this the argument put to the tribunal, and repeated on the appeal, was that since it had been accepted that this was not a case where any recognisable cycle in the claimant’s working pattern could be established, the average that should be taken was that under regulation 5(2)(a), namely an average of the hours the claimant could be expected to work in a week looking forwards from the date of his claim.  This (although it is nowhere spelt out at all clearly, either in the argument recorded before the tribunal or in the very laconic statement in the notice of appeal at pages 164-165 which constitutes the only submission made on behalf of the claimant in this appeal) must I think embody the contention that since there is no certainty when the claimant will be needed for offshore work again, it cannot be said that there is any expectation of his working in weeks from the date of his claim onwards: thus the average must therefore be taken as nil and the past ignored, and the Secretary of State and tribunal were wrong to adopt instead the calculation by reference to a period before the date of claim under regulation 5(2)(b)(ii).
12.	Whether or not the argument was spelt out in that way before the tribunal, I am not satisfied it fell into any error in confirming, as it expressly did, that the Secretary of State was right to have applied the calculation in regulation 5(2)(b)(ii) by reference to weeks before the date of claim.  As was said by Mr Inglis‑Jones QC sitting as a Deputy Commissioner in case CIS 688/92, the exact way in which regulation 5(2) is intended to work is difficult to understand, and its relationship with regulation 5(1) uncertain.  The best explanation of what must be intended is in my judgment the one he gives in paragraphs 16 to 20 of that decision, that regulation 5(2) sets out how the number of hours for which a person is engaged to be working is to be determined for the purposes of regulation 5(1) in all cases.  The clue to the difference between cases to which reg 5(2)(a) and reg 5(2)(b) respectively apply lies at the end of regulation 5(2)(a) in the words “which he is expected to work in a week”.  Thus that paragraph of the regulation applies where, although no recognisable cycle of work has been established, the average of the hours which the employee is expected to work in a week can be established in advance, by reference to the terms of the engagement itself even though this may allow for fluctuations.  Where that is not the case and the average weekly hours cannot be determined in advance (as Mr Inglis-Jones puts it “at the outset of his engagement or on a subsequent variation of it”), then the hours actually worked have to be examined, and regulation 5(2)(b) applies, with an average over a period of weeks ending immediately before the date of claim having to be taken under regulation 5(2)(b)(ii) in any case where, as here, no recognisable cycle can be identified.  Consistently with that guidance with which I respectfully agree, it cannot in my judgment be argued that the tribunal was wrong as a matter of law to approve the application of regulation 5(2)(b)(ii) to the present claimant’s case. 
13.	That in my judgment is the end for practical purposes of any possibility of challenge to the tribunal’s decision, since although there may well be room for more than one view of what the most suitable period of weeks ending immediately before the date of claim should be to produce the most accurate figure for the claimant’s average hours of work at that date, it cannot I think be said that there is any error of law in the actual method of calculation adopted in the Secretary of State’s decision which was confirmed by the tribunal.  This was to look at the actual period of five weeks before the date of claim, and alternatively the period of 25 weeks down to that date for which work and pay details had been supplied, and to conclude that on either of those alternatives the claimant’s weekly average figure was well above 16, there being for that matter no period of 5 weeks within the 25 that you could pick where the average fell below it.  
14.	Although the tribunal’s own arithmetic as recorded in the statement of reasons issued to the parties on 18 January 2002 at page 157 appears to have become a little confused and, as pointed out in the submission of Mr A Myers on behalf of the Secretary of State dated 11 June 2002 at pages 175-179, that statement is mistaken in saying that the tribunal had no documentary evidence of the hours worked in the week of 3 February 2001, those are not in my judgment material errors that could have made any difference to the actual decision.  This was expressly to confirm the Secretary of State’s determination that the claimant remained in remunerative work and that his average hours calculated under regulation 5(2)(b)(ii) were more than 16 per week at the date of his claim; and on that the evidence plainly justified the conclusion reached. 
15.	For those reasons, although the Secretary of State’s submission very properly draws my attention to what it describes as “technical” defects in the tribunal’s decision, I have concluded that they do not amount to material errors of law, and the tribunal’s decision based on the evidence before it was correct.  
16.	Accordingly I dismiss this appeal and confirm the actual decision given by the tribunal, which was to confirm the Secretary of State’s rejection of the claim for income support from 15 February 2001 on the ground that at that date the claimant fell to be treated as engaged in remunerative work.

(Signed)
P L Howell
Commissioner
13 November 2002