R(JSA) 4/03

Judge M. Harris	CJSA/5732/1999
Mr. M. Rowland	CJSA/5836/1999
Mr. E. A. L. Bano	CJSA/3444/2000
26.9.02
European Union law – Council Directive 79/7/EEC – whether regulation 51(2)(c) of the Jobseeker’s Allowance Regulations 1996 discriminates on grounds of sex
Remunerative work – term-time workers – calculation of hours of work

Each of the claimants was employed in an academic institution for over 16 hours a week during term- time.  They claimed jobseeker’s allowance during the summer vacation but their claims were disallowed and their appeals were dismissed by tribunals on the ground that they were in remunerative work as they worked for more than 16 hours a week.  The tribunals relied on regulation 51(2)(c) of the Jobseeker’s Allowance Regulations 1996 which provided that the number of hours for which a person was engaged in work was 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.”  In Banks v. Chief Adjudication Officer [2001] UKHL 33 (reported as R(IS) 15/01), the House of Lords had held regulation 51(2)(c) to have the effect that the claimant was to be treated as being in remunerative work over the whole cycle of work (including school holidays during which no work duties were performed and in respect of which no wages were paid). The claimants appealed to the Commissioners on the ground that regulation 51(2)(c) gave rise to indirect discrimination on grounds of sex, contrary to Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. 
Held, allowing the appeal in CJSA/5732/1999 but dismissing the appeals in CJSA/5836/1999 and CJSA/3444/2000, that:
1.	regulation 51(2)(c) worked to the disadvantage of some of the claimants to whom it applied because they were treated as engaged in remunerative work for the whole year of the cycle of work when they would not be so treated if regulation 51(2)(b)(i) (which applied to all other claimants with cycles of work) were applied to them and, accepting a concession made by the Secretary of State, it operated to the disadvantage of disproportionately more women than men (paragraphs 9 and 12);
2.	justification of that disproportionate effect was not made out by the Secretary of State, who had failed to establish that regulation 51(2)(c) was necessary in pursuit of a legitimate social policy, and regulation 51(2)(c) was therefore inconsistent with Council Directive 79/7/EEC (paragraph 20);
3.	the Directive was to be given effect by regarding regulation 51(2)(c) as having no effect with the consequence that regulation 51(2)(b)(i) applied to the claimants’ cases (paragraphs 23 and 24);
On the facts of the cases, the Tribunal of Commissioners held that the claimant in CJSA/5732/1999 was not engaged in remunerative work but that the claimants in CJSA/5836/1999 and CJSA/3444/2000 were engaged in remunerative work. 
[Note: This case was determined at the same time as the case reported as R(JSA) 5/03.]

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

1.	We allow the claimant’s appeal in CJSA/5732/1999. We set aside the decision of the Sunderland social security appeal tribunal dated 16 December 1997 and we substitute our own decision which is that the claimant was not in remunerative work for the purposes of her claim for jobseeker’s allowance made on 26 June 1997. We leave other questions arising on that claim to be determined by the Secretary of State but, in the event of any disagreement, the case must be restored before a Commissioner.

2.	We dismiss the claimants’ appeals in CJSA/5836/1999 and CJSA/3444/2000.

REASONS

Introduction

3.	We held an oral hearing of these appeals. The appellant in CJSA/5732/99 neither appeared nor was represented. The appellant in CJSA/5836/99 was represented by Mr. Jake Harris of the Free Representation Unit. The appellant in CJSA/3444/00 was represented by Ms. Helen Mountfield of counsel, instructed by Mr. Stewart Wright of the Child Poverty Action Group. The Secretary of State was represented in all three appeals by Mr. Akhlaq Choudhury of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.

4.	The appeals were heard together because they all raise the question whether regulation 51(2)(c) of the Jobseeker’s Allowance Regulations 1996 gives rise to indirect discrimination on grounds of sex, contrary to Council Directive 79/7/EEC.

The legislation

5.	Jobseeker’s allowance was introduced with effect from 7 October 1996 when the Jobseekers Act 1995 came into force. As originally enacted, section 1 of the Act provided:

“Subject to the provisions of this Act, a claimant is entitled to a jobseeker’s allowance if he–
(a)	is available for employment;
(b)	has entered into a jobseeker’s agreement, which remains in force;
(c)	is actively seeking employment;
(d)	satisfies either–
	(i)   the conditions set out in section 2; or
	(ii)  the conditions set out in section 3;
(e)	is not engaged in remunerative work;
(f)	is capable of work;
(g)	is not receiving relevant education;
(h)	is under pensionable age;
(i)	is in Great Britain.”

Section 2 provides for the contribution-based conditions, which include not having earnings in excess of a prescribed amount. The prescribed amount is calculated under regulation 56 of the Jobseeker’s Allowance Regulations 1996 which has the practical effect that the claimant’s earnings, before any element is disregarded under regulation 99(2) or 101(2) and Schedule 6, must be less than the amount of contribution-based jobseeker’s allowance to which he or she might be entitled.  Section 3 provides for the income-based conditions, which include having an income (from all sources and not just earnings) which does not exceed the applicable amount. The applicable amount is calculated under regulation 83 and is intended to take into account the needs of the claimant’s family. Section 4 makes provision for the amount payable by way of jobseeker’s allowance and has the effect that entitlement to contribution-based jobseeker’s allowance is reduced by the amount of any earnings that do not disentitle the claimant altogether under section 2 and that entitlement to income-based jobseeker’s allowance is reduced by the amount of any income that is not sufficient to disentitle the claimant altogether under section 3.

6.	Jobseeker’s allowance replaces unemployment benefit, which was based on contributions, and also income support for those people who were formerly required to be available for work as a condition of entitlement to income support. There are, however, as Mr. Choudhury emphasised, important differences between jobseeker’s allowance and the benefits they replaced, notably the fact that contribution-based jobseeker’s allowance is a weekly benefit, whereas unemployment benefit was a daily benefit, and the introduction of the concept of a jobseeker’s agreement.

7.	The present appeals turn on the scope of the term “remunerative work” in section 1(2)(e). At the time with which we are concerned, regulation 51(1) and (2) of the Jobseeker’s Allowance Regulations 1996 provided –

“(1)	For the purposes of the Act “remunerative work” means–

(a)	in the case of the claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week; and

(b)	in the case of any partner of the claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 24 hours per week; and

(c)	in the case of a non-dependant, or of a child or young person to whom paragraph 18 of Schedule 6 refers, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week,

and for those purposes, “work” is work for which payment is made or which is done in expectation of payment.

(2)	For the purposes of paragraph (1), the number of hours in which the claimant or his partner 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, and sub-paragraph (c) does not apply, 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 five weeks immediately before the date of claim or the date of review, 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;

(c)	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.”

Regulation 52(1) provided:

“(1)	Except in the case of a person on maternity leave or absent from work through illness, a person shall be treated as engaged in remunerative work during any period for which he is absent from work referred to in regulation 51(1) (remunerative work) where the absence is either without good cause or by reason of a recognised, customary or other holiday.”

8.	Where a claimant has a cycle of work and the number of hours for which he or she works falls to be calculated under regulation 51(2)(b)(i), the calculation takes account of the hours worked over the whole cycle, including periods of no work.  A  determination that he or she is engaged in remunerative work also applies for the whole period of the cycle, including such periods of no work (R(IS) 8/95), although a person may temporarily cease to be engaged in employment when absent from work in circumstances where regulation 52(1) does not apply. However, where the cycle of work consists of a year and includes school holidays or similar vacations, the Regulations provide that regulation 51(2)(c) should apply in place of regulation 51(2)(b)(i) and that the periods of school holidays or similar vacations should be disregarded in the calculation.  In Banks v. Chief Adjudication Officer [2001] UKHL 33, [2001] 1 WLR. 1411 (also reported as R(IS) 15/01), there arose the question as to the period for which a determination under regulation 51(2)(c) applied in the case of a school classroom assistant who worked for more than 16 hours per week during school terms but was not paid in respect of school holidays. Mr. Commissioner Rowland, accepting a concession by the adjudication officer that the claimant was entitled to benefit during school holidays, held that regulation 51(2)(c) operated so that the claimant was to be regarded as engaged in remunerative work only during the school terms taken into account in calculating the average number of hours worked. However, after Mr. Commissioner May QC had declined in CSJSA/395/98 to accept the same concession, the Chief Adjudication Officer appealed against Mr. Commissioner Rowland’s decision. The Court of Appeal allowed the appeal and the claimant appealed to the House of Lords. By a majority, their Lordships held that the claimant was to be treated as being in remunerative work over the whole cycle of work, including the school holidays. 

Discrimination

9.	On this approach, regulation 51(2)(c) works to the disadvantage of some of those claimants to whom it applies. They are treated as engaged in remunerative work for the whole year of a cycle of work when they would not be so treated if regulation 51(2)(b)(i), which applies to all other claimants with cycles of work, were applied to them. Whereas regulation 51(2)(b)(i) produces a true average, regulation 51(2)(c) produces a false average because it ignores the fact that for part of the cycle the claimant does no work.

10.	The claimants argue that disadvantaging those claimants to whom regulation 51(2)(c) applies contravenes Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. They submit that regulation 51(2)(c) should be given the interpretation rejected by the House of Lords in order to make the regulation comply with the Directive. It is common ground before us that jobseeker’s allowance falls within the scope of the Directive.

11.	Article 4(1) of the Directive provides: 

“The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, …. ”

In Nolte v. Landesversicherungsanstalt Hannover (Case C-317/93) [1995] ECR I-4625, it was held by the European Court of Justice, at paragraph 28 of their judgment, that:

“ …  Article 4(1) of the directive precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men unless that measure is based on objective factors unrelated to any discrimination on grounds of sex. That is the case where the measures chosen reflect a legitimate social policy aim of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so.”

On the basis of that authority, Mr. Choudhury accepts that, although regulation 51(2)(c) is an apparently neutral provision, it does not follow that it cannot give rise to discrimination on grounds of sex. It is necessary to consider whether it works to the disadvantage of far more women than men and, if so, whether it can nonetheless be justified. Ms. Mountfield cited a number of other authorities to us but it is not necessary for us to consider the refinements she suggested to the test enunciated in Nolte.

12.	As to whether regulation 51(2)(c) works to the disadvantage of far more women than men, the claimants rely on statistics published by the Office for National Statistics in the November 2000 issue of Labour Market Trends. These figures show, inter alia, that 25.7% of working women have flexible working arrangements as against 17.1% of working men and that 8.1% of working women (12.1% of working women with dependent children and 6.3% of working women without dependent children) work in term-time only as against 1.4% of working men. In the light of those figures, Mr. Choudhury concedes that regulation 51(2)(c) does operate to the disadvantage of disproportionately more women than men, and we are prepared to accept that concession.

Justification

13.	It is therefore necessary to consider whether regulation 51(2)(c) can be objectively justified by the Secretary of State by reference to factors other than sex, applying the test set out in Nolte. 

14.	Regulation 51(2)(c) is derived from regulation 5(3B) of the Income Support (General) Regulations 1987, which was introduced in order to reverse the decision of Mr. Commissioner Goodman in R(IS) 15/94. In that case, the claimant’s wife was a school receptionist who worked only during school terms and was not paid in respect of school holidays. The learned Commissioner held that the claimant had a cycle of work, that, for the purpose of calculating under regulation 5(2)(b)(i) of the 1987 Regulations (equivalent to regulation 51(2)(b)(i) of the 1996 Regulations) the number of hours worked, an average had to be taken over a complete one year cycle of work and that, although the claimant might have been working for more than 24 hours per week during the terms, she was working for less than 24 hours per week as an average over the whole year. We were shown a draft minute of a meeting of the Social Security Advisory Committee considering the draft statutory instrument which was to insert regulation 5(3B) into the 1987 Regulations. It shows that the reason why it was wished to reverse R(IS) 15/94 was that applying that decision had had the effect that some school workers had been found not to be entitled to family credit previously awarded to them. The Committee were told that the draft statutory instrument was intended to “restore” a policy intention “that the hours of work of school ancillary workers should be calculated using average hours worked during term-time only”. We have seen no evidence of a pre-existing policy but it is not in issue that the policy behind regulation 5(3B) is as set out in the draft minute.

15.	The reason that awards of family credit were affected by R(IS) 15/94 is that, whereas income support and jobseeker’s allowance are not payable where a person is in remunerative work, working families’ tax credit (as family credit is now called) is payable only if he or she is in remunerative work and regulation 4 of the Family Credit (General) Regulations 1987 contains provisions similar to regulation 5 of the Income Support (General) Regulations 1987 and regulations 51 and 52 of the Jobseeker’s Allowance Regulations 1996. We have no doubt that the insertion of paragraph (4A) into regulation 4 of the Family Credit (General) Regulations 1987 so as to enable claimants who work only just over 16 hours a week during school or college terms to continue claiming family credit was perfectly proper. We do not consider that it can be said to disadvantage men but, even if it does, it seems to us to be a necessary and proportionate way of implementing a legitimate social policy, for reasons advanced by Mr. Choudhury which we need not set out here.

16.	However, it does not follow that it was necessary to enact regulation 51(2)(c) of the Jobseeker’s Regulations 1996. As Ms. Mountfield and Mr. Harris submitted, regulation 51(2)(c) manifestly results in a disadvantage for some of those within its scope. There may be linked advantages flowing from the existence of regulation 4(4A) of the Family Credit (General) Regulations 1987 but, as Mr. Harris put it, that does not affect the fact that regulation 51(2)(c) itself disadvantages disproportionately more women than men. Such countervailing advantages are relevant only to the question of justification.

17.	It seems to us that that the Secretary of State faces two main difficulties in relation to objective justification. The first is that the advantage conferred by regulation 4(4A) of the Family Credit (General) Regulations 1987 does not necessarily accrue to those who suffer the disadvantage imposed by regulation 51(2)(c) of the 1996 Regulations and, where it does, it does not always compensate for it. Ms. Mountfield produced various worked examples. A claimant may not be entitled to working families’ tax credit because she has no dependent children, although she did when she started working in a school. She may not be entitled to working families’ tax credit because she may make her claim during part of a school holiday that is not a holiday for her and be unable to satisfy the requirements of regulation 4(1)(c) and (5) of the Family Credit (General) Regulations 1987.  Her entitlement to working families’ tax credit may be less than her entitlement to income-based jobseeker’s allowance because she has relatively high housing costs.  Mr. Choudhury described the examples as unrealistic. We accept that they may represent a minority of cases – the representations to the Social Security Advisory Committee gave a figure of as few as 700 cases where people had “gained” entitlement to income support following R(IS) 15/94 and it may be that even fewer are now affected by regulation 51(2)(c) – but we do not consider them to be unrealistic and they are the cases where regulation 51(2)(c) imposes a practical disadvantage. In a case where a person is better off on working families’ tax credit and claims that benefit, there will be no entitlement to jobseeker’s allowance anyway. This is because, while paragraph 3 of Schedule 2 to the Family Credit (General) Regulations 1987 provides for income-based jobseeker’s allowance to be disregarded when calculating entitlement to working families’ tax credit, there is no provision in the 1996 Regulations for disregarding working families’ tax credit. Working families’ tax credit is therefore taken into account as income and entitlement to income-based jobseeker’s allowance is reduced by one penny for every penny of working families’ tax credit. A person will not be entitled to contribution-based jobseeker’s allowance while in receipt of earnings based on 16 hours work a week during terms.

18.	This points to the second difficulty faced by the Secretary of State, which is that there is no necessity for there to be the same rule for jobseeker’s allowance as there is for working families’ tax credit. The rules to which we have just referred prevent there from being any possibility of inappropriate double payment. Mr. Choudhury argued that it was necessary for the rules to be the same for the sake of simplicity in order to prevent claimants from being confused. That seems to overlook the fact that regulation 51(2)(c) is itself an exception to the general rule in regulation 51(2)(b)(i), that there are far more complex parts of the legislation for both working families’ tax credit and jobseeker’s allowance and that there are already differences between the rules for determining whether a person is in remunerative work for working families’ tax credit purposes and the rules that apply to jobseeker’s allowance and, indeed, between the rule in regulation 51(1)(b) of the 1996 Regulations in respect of claimants’ partners and the rule in regulation 51(1)(a) and (c) in respect of claimants, non-dependants and claimants’ children. In our judgment, any benefits resulting from the test of entitlement to “in work” benefits being the same as the test of exclusion from “out of work” benefits come nowhere near justifying the removal of a benefit of last resort from those who would otherwise qualify on income grounds. 

19.	After the hearing, we received a further written submission on behalf of the Secretary of State asserting that regulation 51(2)(c) “provides an incentive for those who do not have dependant children and who do not necessarily need to undertake term-time work to find full-time work that will allow them to become self-supporting throughout the year.” For those to whom regulation 51(2)(c) makes any practical difference, that incentive comes purely in the form of a loss of entitlement to a benefit of last resort so that they have less income than others in receipt of jobseeker’s allowance or income support.  As Ms. Mountfield pointed out, any recipient of jobseeker’s allowance must satisfy the conditions of section 1(1)(a), (b) and (c) of the 1995 Act. We have difficulty in seeing why, of all the people who satisfy those conditions, it is considered that people working in schools and colleges should be singled out for this sort of incentive. It can hardly be an answer that they could gain parity with others by abandoning their employment. This new argument does not amount to any justification for a provision that is conceded to affect disproportionately more women than men.

20.	We accept that legislators are entitled to a margin of appreciation, in the sense that courts or tribunals will treat policy decisions with deference, but there seems to us to be little scope for such a margin where the legislator has not addressed the issues that arise. There is no evidence that any thought was given in 1996 to the possibility of having different rules for family credit and jobseeker’s allowance. The Secretary of State has failed to satisfy us that regulation 51(2)(c), as interpreted by the House of Lords, is necessary in pursuit of a legitimate social policy. As it is conceded that regulation 51(2)(c) affects disproportionately more women than men, it follows that it is inconsistent with Council Directive 79/7/EEC.

The remedy

21.	Ms. Mountfield and Mr. Harris argued that, in that case, the provision should be given the construction given to it by Mr. Commissioner Rowland, but rejected by the majority in the House of Lords in Banks v. Chief Adjudication Officer. That, they submitted, did least violence to the words of the legislation, and they submitted we were entitled to take that approach because the House of Lords had had no evidence of discrimination before them. Mr. Choudhury, on the other hand, submitted that, if regulation 51(2)(c) was inconsistent with Council Directive 79/7/EEC, it should simply be struck down and regarded as having no effect.

22.	We accept Mr. Choudhury’s submissions on this issue. Ms. Mountfield relied on Marleasing SA v. La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135, [1992] 1 CMLR 305 as authority for the proposition that national law should be interpreted in the light of the wording and purpose of any relevant EEC Directive, but that case did not concern rights against a state or state bodies. The relevant Directive therefore had no direct effect, and it was possible to give effect to it only by interpreting the relevant national law in a way which was consistent with the Directive. However in proceedings involving the state or an “emanation of the state”, an individual can rely on the provisions of an unconditional and sufficiently precise Directive so as to avoid altogether the application of national legislation, since in such cases the Directive has direct effect – see Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) (Case 152/84) [1986] QB 401.

23.	Although effect can be given to a Directive by construing national legislation to accord with the Directive in cases where the Directive has direct effect, we do not consider we should do so in this case by adopting the construction of regulation 51(2)(c) that was rejected by the majority of the House of Lords. Such a construction would place claimants within the scope of the provision in a more favourable position than other “cycle of work” claimants, since they would not be regarded as being in remunerative employment during a period forming part of the cycle. We have held that there was no justification for treating school workers as an exceptional category of “cycle of work” claimants in relation to “averaging”, and we can see no reason to treat them differently for the purposes of deciding when they should be regarded as in remunerative employment. Accordingly, we consider that the correct way of giving effect to Directive 79/7/EEC is by regarding Regulation 51(2)(c) as having no effect.

The consequence

24.	The precise way in which regulation 51(2) operates in the absence of sub-paragaph (c) is considered by us in our decision in CJSA/2079/98, CJSA/4014/98 and CJSA/426/99, given separately today. It is sufficient to state here that, where a claimant is a member of the staff of a school or college and has a regular pattern of work and no work, he or she has a recognisable cycle of work consisting of one year. Therefore, regulation 51(2)(b)(i) must be applied and the number of hours of work must be calculated by taking an average over the whole cycle, including the periods of no work that are part of the cycle but disregarding any other absences including periods of holiday. If that results in the claimant being found to work at least 16 hours a week on average, he or she is regarded as engaged in remunerative work for the whole year. Otherwise, he or she is regarded as not being engaged in remunerative work for the whole year.

Conclusion in CJSA/5732/1999	

25.	In this case, the claimant had been employed since 1993 by a university as a part-time librarian on an annual salary described as equivalent to 0.5 of a full-time salary. She worked for 18½ hours a week. Although her contract did not expressly say so, it is common ground that she in fact worked during term-time only. She had holiday entitlement under her contract, which seems to have been four weeks but was possibly five. She is said to have “worked” for 35 weeks a year. It is not clear whether that is the period in respect of which she was paid (i.e., including her holiday entitlement) or whether it was the period for which she actually worked. She claimed jobseeker’s allowance on 26 June 1997. Her claim was dismissed on the ground that, by virtue of regulation 51(2)(c) of the 1996 Regulations, she was engaged in remunerative work. She appealed on the ground that regulation 51(2)(c) was inconsistent with Article 4 of Directive 79/7/EEC but the Sunderland social security appeal tribunal accepted the adjudication officer’s argument and her appeal was dismissed. She now appeals against the tribunal’s decision with the leave of Mr. Commissioner Rowland.

26.	Although the claimant at one time suggested that her contract subsisted during term-times only, it is plain that it was a continuous contract and that she was expected to return to work at the end of the summer vacation. The vacation was part of a cycle of work that was well established by the date of claim. However, whether or not the 35 weeks of “work” included her holidays and whatever her precise holiday entitlement, the average number of hours per week for which she worked during the cycle of a year was clearly less than 16. Accordingly, she was not engaged in remunerative work and the tribunal erred in law in finding that she was.

27.	We therefore allow her appeal. However, it does not follow that she is entitled to jobseeker’s allowance in respect of her claim. We suspect she will have had earnings disentitling her from contribution-based jobseeker’s allowance and she may well also have had income disentitling her from income-based jobseeker’s allowance. These questions must be considered by the Secretary of State.  If there is any further dispute as to her entitlement, the case must be restored before a Commissioner.

Conclusion in CJSA/5836/1999

28.	The claimant in this case had been employed since 1980 by a students’ union as an administrator. She worked for 35 hours a week for 38 weeks of the year, broadly during term-time. In 1998, her summer-term period of work ended on 26 June. She claimed jobseeker’s allowance on 10 July. She returned to work on 8 September. Her claim was dismissed on the ground that the period from 10 July 1998 to 7 September 1998 was a customary holiday and, by virtue of regulation 52(1) of the 1996 Regulations, she remained engaged in remunerative work during that period. She appealed on the ground that the vacation was not a holiday for her. The Edgware social security appeal tribunal did not determine the holiday issue but appears to have dismissed her appeal on the ground that regulation 51(2)(c) applied. The claimant appeals with the leave of the tribunal, given on 23 August 1999.

29.	Mr. Harris conceded that, if regulation 51(2)(c) were struck down, the claimant’s appeal could not succeed. Plainly she had a recognisable cycle of work and worked on average for more than 16 hours a week throughout that cycle.  Accordingly, we dismiss her appeal. 

Conclusion in CJSA/3444/2000

30.	In this case, the claimant had been employed since 1996 as a catering assistant at a residential college. She worked for 40 hours a week during term times only.  She claimed jobseeker’s allowance on 27 July 1999, at the beginning of the college’s summer vacation. Her claim was disallowed on the ground that, by virtue of regulation 51(2)(c), she was engaged in remunerative work. She appealed but her appeal was dismissed by the Bolton appeal tribunal. Leave to appeal was granted by Mr. Commissioner Bano on 30 October 2001.

31.	Ms. Mountfield conceded that, if regulation 51(2)(c) were struck down, regulation 51(2)(b)(i) would apply and the claimant must be found to have been engaged in remunerative work. The average number of hours per week for which she worked during the cycle of a year was well over 16. We therefore dismiss her appeal.

(Date)	26 September 2002	(signed) H. H. Judge Michael Harris
Chief Commissioner

Mark Rowland
Commissioner

E. A. L. Bano
Commissioner