DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s File: CIB/3507/2002

1.		This is an appeal by the claimant, with my leave, against a decision of the appeal tribunal sitting at Wrexham (the “appeal tribunal”) on 11th April 2002.  For the reasons which I give, that decision is erroneous in law.  I therefore allow the appeal and set the decision aside.  In exercise of the powers conferred upon me by section 14(8)(a)(i), I give the decision which I consider the appeal tribunal should have given.

2.		My decision is as follows.  The claimant has performed negligible work only from 2nd July 2001.  He therefore remains incapable of work from and including that date.  

3.		The claimant appealed the following decision, given on 5th November 2001 to the appeal tribunal.
“I have superseded the decision awarding Incapacity Benefit to [the claimant] from and including 14.9.93.  This is because [he] started work on 3.7.01 working 3.7.01 and 6.7.01 in the first week.  This is not exempt work.  There is no entitlement to Incapacity Benefit for each day worked in the first week and no entitlement for each complete week from then on.  [The claimant] is therefore treated as capable of work and is not entitled to Incapacity Benefit or credits for 3.7.01, 6.7.01 and from and including 8.7.01.

As a result [the claimant] is also not entitled to Incapacity Benefit or credits for 4.7.01, 5.7.01 and 7.7.01.  This is because these days are not within a period of 4 consecutive days of incapacity for work and do not form a period of incapacity for work.”

4.		That decision was given in the following circumstances.  The claimant is 64 years old.  He used to work as a packer but about 10 years ago he developed what appears to be quite serious heart problems and had to give up work.  He received statutory sick pay from his employer until 13th September 1993, and invalidity benefit from 14th September 1993.  On 13th April 1995, that became an award of incapacity benefit.  He was still receiving incapacity benefit in 2001, when he became friendly with a man who, together with two partners, ran a small business installing windows and conservatories.  For convenience I shall call that business “DW Windows”.  It appears from letters which his general practitioner has written and a report which he has given, that by 2001, the claimant was becoming very depressed by his situation.  One of those letters is dated 15th November 2001.  It will be found at page 23 of the papers and reads as follows.
“This patient has suffered for many years from angina of effort and has been having continuous treatment for several years.  He has been totally unable to work.

I have advised him recently to try some light work for 2-3 hours per day and advised him to get in touch with you.  I believe some therapeutic work, 2-3 hours per day, would help him as he tends to get fed up in the house, but I confirm he is unable to do a full day’s work.”
Later, in the report which he gave, the claimant’s general practitioner said that some light work would “Relieve his boredom.  He may not be able to do it but it is worth a try.  He remains very limited in how much he can do and for how long.  A trial of limited hours of therapeutic work would be worth while”.

5.		The date of the letter (15th November 2001) and the expression “therapeutic work” are significant.  Putting the matter simply, a person who receives incapacity benefit does so on the basis that he is incapable of work.  Not surprisingly, he will lose his entitlement to that benefit if he does in fact work.  There are, however, a number of exemptions.  One of these is for what is commonly called therapeutic work.  That is, a small amount of, generally light, work undertaken with a view to improving a persons morale and motivation and, perhaps, getting him back into the work force.  There were prescribed limits on the amount of time that might be worked and the amount of money that might be earned before entitlement to incapacity benefit was lost.  There was also, at the relevant time, a requirement that the “work [was] undertaken on the advice of a doctor”.  See regulation 17(1)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311).  That was generally taken to mean that, for the work to qualify, the advice had to proceed the taking up of the work or at least be given very close to its being taken up.  It was not sufficient for a doctor to say, some months after work had begun, that he thought it would be good for the person in question.  

6.		The problem in this case is that the claimant began working in July 2001, but his general practitioner did not write the letter quoted above until November of that year.  What happened was this.  The claimant did a small amount of gardening for the man he had become friendly with.  He was not paid but was bought lunch in lieu of payment.  Nothing turns on that gardening work.  However, the claimant was offered, and accepted, a very small amount of work with DW Windows.  Pausing there, there is no suggestion in this case that the claimant was doing more work than he said or that he was being paid in cash or kind more than he disclosed.  On 28th November 2001, DW Windows wrote a letter in which they said:
“In July of this year we approached [the claimant] to see if he would like to do a couple of hours each week at [DW Windows]  doing various light duties.  ie. Making coffees, emptying bins etc and occasionally driving a vehicle to transport [Mr S. E.] the Manager who holds no driving license.”

7.		There is no dispute about what DW Windows say.  Nor is there any dispute about the fact that the claimant was paid £3.85 per hour and that he worked between one and three hours per week.  A schedule of his weekly hours and earnings between the beginning of July and the first week of October 2001 has been produced by DW Windows.  He never worked for more than three hours and consequently never earned more than £11.55, in any one week.  The period covered is one of 14 weeks.  During three of those weeks he worked for 1 hour only.  He worked for two hours for five of those weeks and for three hours for the remaining six weeks.  The average is a little above two hours per week.  If the claimant had obtained the letter which his general practitioner wrote in November 1997, before he started working for DW Windows, there would have been no problem and he would not have lost his benefit.  However, he began some months before that letter was written and that resulted in the decision under appeal being given on 5th November 2001.  That decision was reconsidered on 4th December 2001 but was not altered.  See page 25 of the papers where it is stated:
[The claimant] had not started work on the advice of his doctor and it cannot therefore be considered as exempt work.  [The claimant] is treated as capable of work for 3.7.01, 6.7.01 and from and including 8.7.01.  As a result he is not entitled to Incapacity Benefit from and including  3.7.01.

8.		The loss of his incapacity benefit must have been a very serious matter for the claimant.  I do not know the amount that he was receiving but it would be considerably more than the small weekly amount which he was receiving from DW Windows.  These was sometimes as low as £3.85.  Furthermore he was doing something of which anybody would approve.  That is, a little light work in order to improve his health and motivation.  Something which his general practitioner highly approved of when he learnt of it.  The decision of 5th November 2002 was, therefore, somewhat disproportionate so far as the claimant was concerned.  

9.		The claimant appealed and his appeal was heard by the appeal tribunal on 11th April 2002.  See pages 39 to 45 of the papers.  He attended and gave evidence but his appeal was dismissed.  This was, basically, because he had commenced work before obtaining advice from his general practitioner.  There was a factual issue as to whether the doctor had given the claimant orally advice at an earlier stage.  The tribunal resolved that issue against the claimant and I proceed on the basis of its finding.  Permission to appeal was sought but was refused by a legally qualified panel member.

10.		The application was renewed and came before me on 11th October 2002.  I granted permission to appeal “so that it can be considered whether this is a case where the de minimis principle, as explained in paragraphs 5 to 12 of decision CIB/5298/1997, applies”?  I also asked whether, if it did, I could give the final decision.

11.		The expression “de minimis” or, in full, de minimis non curat lex” is a latin expression meaning “the law does not concern itself with trifles”.  It is a principle which applies in many areas of law.  Where it applies, it means that the law does not usually take account of negligible, trivial or sometimes even very small amounts.  In decision CIB/5298/1997, Mr Commissioner Williams decided that the principle applied to regulation 16 and 17 of the Social Security (Incapacity for Work) (General) Regulations 1995.  At paragraph 9 he said this.

“9.	The name “de minimis” comes from the Latin tag “de minimis non curat lex” – the law does not care about minimal things or, as the Guide puts it, the law is not concerned with trivialities.  This has for centuries past been regarded as a principle of interpretation or application of the law, and has been used as such by the highest courts (see Bennion, Statutory Interpretation, 3rd edn, p 868 and authorities cited there).  It applies in principle to any exercise of statutory interpretation or application unless it is clear from the context that a stricter approach is to be applied.  There is, in my view, no such indication in regulation 16 or its context, and the tribunal is therefore wrong in stating it does not apply.”

12.		The Secretary of State supports the appeal.  His representative lodged submissions on 12th December 2002, in which she submits that the appeal tribunal erred because its decision is expressed in terms of a “blanket” period of disallowance (paragraph 8) and because the appeal tribunal did not consider the position after the general practitioner’s letter of 15th November 2001 (paragraph 9).  She then turned to the point I had raised when granting permission and said this.
10.	When granting leave to appeal the Commissioner requests that consideration be given to the de minimus principle as explained in paragraphs 5-12 of CIB/5298/97 [page 62].

11.	I submit that negligible amounts of work can be disregarded.  In order to be considered ‘negligible’ work or ‘de-minimus’ the work must be inconsequential; that is, work that is so trivial it can be disregarded.  I submit that, on the evidence of this case, the work performed by the claimant from 2 7 01 falls within the principle of de minimus and that the tribunal’s failure to consider negligible work was a further error of law.

Conclusion
12.	If the Commissioner accepts my submission that the tribunal have erred in law, I invite him to set aside their decision and substitute his own decision.  I submit that the facts and circumstances of the case are sufficiently recorded to enable the Commissioner to make the decision that the tribunal should have made namely that the claimant has performed negligible work only from 2 7 01 and as a result he remains incapable of work from and including 2 7 01.”
I accept those submissions.  That being so, I allow the appeal and give the decision which I do in paragraph 2 above.  

	(Signed)		J.P. Powell					Commissioner

	Dated:	25th March 2003