CJSA/2759/1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Newcastle-upon-Tyne social security appeal tribunal dated 3 June 1998 and I substitute my own decision which is that the claimant was not engaged, and is not to be treated as having been engaged, in remunerative work from 21 July 1997 to 29 August 1997.

REASONS

2.	The claimant was a school cook.  She claimed jobseeker’s allowance from 21 July 1997, at the beginning of the school summer holidays.  The adjudication disallowed benefit on the ground that the claimant was to be treated as being in remunerative work because she was absent from such work due to there being a customary holiday.  The claimant appealed but her appeal was dismissed.  However, she was granted leave to appeal by the tribunal chairman in the light of my decision in CIS/14661/96.  I accept that the tribunal’s decision was erroneous in point of law because, for the reasons I gave in that decision, the periods of school holidays were not holidays for the claimant.  Provision was made for holiday pay to be paid at the end of the summer school term but the pay slip dated 24 July 1997 makes no express reference to any holiday pay.  I find that she did not receive any holiday pay.  Had she been paid in respect of the first few days of the summer holiday, those would have been days of holiday for her and she would have been treated as still engaged in remunerative work – and therefore not entitled to jobseeker’s allowance – by virtue of regulation 52(1) of the Jobseeker’s Allowance Regulations 1996.  If, on any further investigation, it appears that holiday pay was in fact paid to the claimant at the beginning of the school holiday, the Secretary of State may supersede my decision to that extent.

3.	However, another question arises.  By section 1(2)(e) of the Jobseekers Act 1995, it is a condition of entitlement to jobseeker’s allowance that the claimant should not be engaged in remunerative work.  By regulation 51 of the Jobseeker’s Allowance Regulations 1996, remunerative work is work in which the claimant is engaged on average for not less than 16 hours per week and regulation 51(2)(c) provides that the number of hours for which a person is engaged in work is to be determined –

“where the person works at a school or other educational establishment or at some other place of employment and the cycle of work consists of one year but with school holidays or similar vacations during which he does no work, by disregarding those periods and any other periods in which he is not required to 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 51(2)(c) 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 jobseeker’s allowance all year round.  That decision of the House of Lords is binding on me.

4.	In the present case, there arises the question whether the claimant had a “cycle of work” at the time of her claim for jobseeker’s allowance in July 1997.  If not, regulation 51(2)(c) did not apply to her.  The evidence in the case is not in dispute.  The claimant was employed as a cook by a company providing school meals.  At first, she was employed, from 24 June 1996, on a relief basis and she worked in different schools for different numbers of hours each week until shortly after the beginning of the term in January 1997.  During that period she worked every week of the school terms and none of the weeks of the school holidays.  She was then asked to work in one particular school for 30 hours a week.  This was initially for a period of three months because the permanent cook had been promoted to be an area manager for a trail period of three months.  She was then asked to work a further three months at the same school and this pattern was repeated for some time before she was told that would be a permanent place of employment.  She says that it was over two years before that happened, although a copy of her terms and conditions of employment said to be correct at 2 March 1998 states that her main place of employment was to be that particular school and that she was normally to work 30 hours a week.  In her letter of appeal to the tribunal, dated 12 September 1997, she said she had not had a contract – by which I take her to mean a written statement of terms and conditions – and that “if there had been no suitable employment for me I would not have been re-employed for the new school term” that had just begun.  That is consistent with a letter dated 29 September 1997 from her employers.  I find as a fact that she was still then a relief cook, employed as and when required.

5.	In the case of a casual or relief arrangement, it may be clear that a person will not work during school holidays but it may not be clear that he or she will work during the whole of the terms and for that reason a cycle may not be established.  However, where there has been a series of fixed-term contracts or 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, although that is likely to require the completion of two cycles.  This claimant had been employed during each week of every school term since her employment had commenced a little over a year before her claim for jobseeker’s allowance and the number of hours worked each week had remained constant for six months.  It seems to me that, if that pattern continued, there would have been bound to come a time when an annual cycle would have become established in practice, even if the claimant had not formally been given an indefinite contract of employment.  However, I do not consider that that had occurred by the time of her claim.  In my view, a cycle of work still had not been established.

6.	It follows that, subject to the point I make about holiday pay in paragraph 2 above, the claimant was not to be regarded as being in remunerative work during the 1997 school summer holiday in respect of which she claimed jobseeker’s allowance.

(signed)	M. ROWLAND
Commissioner
18 January 2002