CIS/914/1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the Secretary of State’s (formerly the adjudication officer’s) appeal against the decision of the Doncaster social security appeal tribunal dated 8 October 1996.

REASONS

2.	By section 124(1)(c) of the Social Security Contributions and Benefits Act 1992, it is a condition of entitlement to income support that the claimant should not be engaged in remunerative work.  By regulation 5(1) of the Income Support (General) Regulations 1987, remunerative work is work in which the claimant is engaged on average for not less than 16 hours per week and regulation 5(3B)) provides  –

“Where for the purposes of paragraph (2)(b)(i), a person’s recognisable cycle of work at a school, other educational establishment or other place of employment is one year and includes periods of school holidays or similar vacations during which he does not work, those periods and any other periods not forming part of such holidays or vacations during which he is not required to work shall be disregarded in establishing the average hours for which he is engaged in work”.

Thus the number of hours worked is calculated by looking only at the number of hours worked during term time.  In Banks v. Secretary of State for Social Security [2001] UKHL 33, [2001] 1 W.L.R. 1411, the House of Lords held that, where a calculation under regulation 5(3B) showed that the claimant was engaged in work for at least 16 hours per week, the claimant was to be regarded as being engaged in remunerative work during the school holidays or similar vacations as well as during term time.  In other words, the claimant was to be excluded from entitlement to income support all year round.  That decision of the House of Lords is binding on me.  It was waiting for that decision that has caused the delay in considering this appeal (which is now the oldest case in the Commissioners’ office).

3.	In the present case, the claimant claimed income support in respect of the half-term holiday from 10 to 18 February 1996.  There is no doubt that the claimant had been employed in schools.  She was a “special needs assistant” like Mr Banks.  However, the tribunal found as a fact that the claimant was employed on a casual basis and that regulation 5(3B) did not apply to her.  They also found that the school holidays were not holidays for her and so she was not caught by regulation 5(3) which provides that a person is to be treated as engaged in remunerative work during any period from which he or she is absent from such work by reason of a recognised, customary or other holiday.  The adjudication officer was granted leave to appeal by the tribunal chairman and submitted that the tribunal erred in their approach both to regulation 5(3B) and to regulation 5(3). 

4.	The Secretary of State adopts the initial view of the adjudication officer that the claimant worked throughout term time for 22 hours a week.  It is submitted that there was therefore a cycle of work over a school year and that the House of Lords’ decision applies.  However, the question whether a claimant has a cycle of work is a question of fact. The difficulty facing the Secretary of State is that the tribunal did not accept the adjudication officer’s view of the facts of the case and I cannot interfere with their decision unless they erred in law.

5.	The evidence before the tribunal was that the claimant had been working as a special needs assistant since 1992.  She had no written contract requiring her to work any particular number of hours during a week or, indeed, requiring her to work each week during terms or otherwise.  The chairman recorded part of her evidence in the following terms:

“I work on a casual basis.  I move from school to school.  I fill in a time-sheet at the end of the month.  My head illegible confirms it and I get paid.  I have done 22 hrs since Sept 95.  Prior to that I did 17½ hrs at illegible and prior to that different hours at different schools.”

The findings of the tribunal included the following passages:

“Since 1992 she has worked at different schools and for different hours.  She has never received a contract of employment or a letter from the authority giving her terms and conditions of employment.  What happens is that she is telephoned and advised that she is required at a certain school and she then contacts the Head and makes arrangements.

“In September of 1995 she commenced work at a local school to assist a child who had been given 22 hours a week special needs teaching.  She commenced that work and did work regularly for 22 hours a week.”

6.	It may well be the case that the mere fact that a person’s hours of work fluctuate does not mean that there is no cycle of work.  However where a person is employed on a casual basis, although it may be clear that that he or she will not work during holidays or vacations, it may not be clear that he or she will work during the whole of the terms.  For that reason a cycle of work may not be established.  It seems to me that, in the present case, the tribunal were entitled to find that no cycle of work was established.  I accept that, where a person has in fact been regularly employed albeit on what is formally a casual basis, there may come a time when a cycle is established in practice even if there is no formal recognition of that fact.  However, in the present case, the claimant’s current regular pattern of employment had lasted only for part of a year at the time she claimed income support and, although there is no clear finding as to when the claimant last did not work throughout a term, the implication of the tribunal’s findings is that they regarded it has not having become settled that she would work throughout each term.  In the absence of any established cycle of work, regulation 5(3B) had no application to the claimant.  The tribunal did not err in that respect.

7.	As to regulation 5(3), the claimant was not paid in respect of school holidays and, as an ancillary worker, the school holidays would not have been holidays for her for the reasons I gave in CIS/14661/96, even if she had not been a casual worker.  As it is, the tribunal based their approach to regulation 5(3) on their finding that the claimant was a casual worker so that the half-term was simply a period of no-work rather than a period of holiday.  That was an additional argument open to them.  Although the claimant expected to go back to work after the half-term, the tribunal were still entitled to find that she had been hired to work for two discrete periods rather than for one period which included a holiday.

8.	Given the particular circumstances of this case and the particular findings made by the tribunal, I am not satisfied that the tribunal erred in law.

(signed)	M. ROWLAND
Commissioner
17 January 2002