PLH                                                                               Commissioner's File: CI 5138/02

SOCIAL SECURITY ACTS 1992-1998
	
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:	Reduced Earnings Allowance
Appeal Tribunal:  	Exeter
Tribunal Case Ref:  	U/03/194/2002/00991
Tribunal date:	11 September 2002
Reasons issued:	16 October 2002

[ORAL HEARING]

1.	This is an appeal by the claimant against the decision of the tribunal chairman sitting alone at Exeter on 11 September 2002 that from the start of the week commencing Sunday 7 April 2002 the claimant, a person over pensionable age previously in receipt of reduced earnings allowance, had ceased to be in “regular employment” as defined in the Social Security (Industrial Injuries) (Regular Employment) Regulations 1990 S.I. No. 256 as amended, with the consequence that he ceased from that time to be entitled to reduced earnings allowance and was instead entitled only to retirement allowance at a significantly lower rate under paragraph 13, schedule 7, Social Security Contributions and Benefits Act 1992. 
2.	The detailed statement of reasons issued to the parties on 16 October 2002 makes it quite clear that the continuing entitlement to reduced earnings allowance down to and including 6 April 2002 had been accepted by the Secretary of State and was confirmed by the tribunal.  However the formal decision notice issued at the time of the hearing on 11 September 2002 records the tribunal as simply confirming the earlier decision of the Secretary of State on 9 May 2002, which had actually been to the effect that the claimant’s reduced earnings allowance entitlement had come to an end and been replaced by retirement allowance one week earlier, on 31 March 2002.   
3.	My decision is that the substance of the tribunal chairman’s decision as set out in his detailed statement of reasons was correct in law and based on findings of fact he was entitled to reach, so the claimant’s appeal is allowed only to the extent of substituting the formal decision the chairman should have given on that basis: that is not to confirm the Secretary of State’s decision of 9 May 2002 as it stood but to vary it by determining instead that the claimant had continued to be entitled to reduced earnings allowance down to and including 6 April 2002, that entitlement ceasing and being replaced from the start of the next week on 7 April 2002 by retirement allowance, with any payments of either allowance already made for the period from 31 March 2002 being taken into account accordingly against his actual entitlement.
4.	I held an oral hearing of the appeal at which the claimant appeared and presented his case in person and Mr Vaughan Lewis of the solicitor’s office, Department for Work and Pensions, appeared for the Secretary of State.
5.	The claimant is a man now aged 66 who attained pensionable age on 12 March 2002.  At that time he had a continuing entitlement to reduced earnings allowance which was due to run out on 16 March 2002, and had told the department in forms he had sent into them in connection with that allowance the previous month that he had not previously been working, last having done so in 1985.  However he was starting what was described as “therapeutic” work of a clerical nature for 10 or more hours a week.  Evidence was then produced from a firm called “Computer Heaven” stating that from 14 February 2002 onwards they were employing him on a temporary part-time basis for 12 hours per week.  There can I think be no doubt that the claimant, who has some experience of the benefits system, had by this time been made aware of the importance of resuming some form of work that could count as “regular employment” for the purposes of his reduced earnings allowance, which would otherwise be lost to him under the regulations once he was past pensionable age.
6.	The amended 1990 regulations already cited require that for a person in receipt of reduced earnings allowance to retain that entitlement past pensionable age he or she must remain continuously in “regular employment”; which for this purpose means gainful employment 
(a) under a contract of service requiring an average of 10 hours’ or more work per week in any period of 5 consecutive weeks (disregarding sickness and other permitted absence); or
(b) “which a person undertakes for an average of 10 hours or more per week in any period of 5 consecutive weeks”.  
7.	Thus a person must either have a contract of service whose terms include the minimum 10-hour average requirement in (a), or be actually undertaking work, e.g. on his or her own account as a self-employed person or as a casual employee, which when one looks at the amount and duration of work actually done meets the alternative 10-hour average condition in (b).  If there is any break, however short, in the continuity of meeting those conditions, then the person concerned is regarded for good as having given up regular employment from the start of the first week in which the conditions are no longer met, and can never thereafter regain the right to reduced earnings allowance.
8.	According to the facts found by the tribunal based on the claimant’s own evidence and not in my view open to dispute, his employment as a part-time employee of Computer Heaven ceased on 31 March 2002, down to which time he had been working for them for 12 hours a week.  He then recommenced employment with them from 15 April 2002 onwards, this time working for 10 hours a week.  For present purposes it can be accepted that each of these employments was under a contract of employment meeting the conditions in paragraph (a) of the regulation summarised above.  There was however no evidence before the tribunal that could have supported any conclusion that the claimant remained under any contract of employment with Computer Heaven for the intervening two weeks.  On the contrary, his own evidence both oral and written (see page 24) was quite clear that his employment with them had ceased on 31 March 2002 (Easter Sunday), as he had by then arranged to take up other employment with a different employer from the start of the next full working week on Monday 8th May.  However as matters turned out the intended arrangement with the other employer fell through, so for the two weeks in question he had no contract of service and was not an employee of anyone.  Everything therefore depended on whether he could show he met the alternative condition in paragraph (b) of the regulation by the amout of work counting as “gainful employment” he had actually done in those two weeks, so as to maintain the five-week average and avoid a break in the continuity of “regular employment”.
9.	On this, the evidence as recorded by the tribunal chairman in terms not significantly different from what the claimant himself explained to me at the oral hearing of the appeal, was that:
(1) during the week commencing 1 April 2002 (that is Easter Monday) the claimant actually did a total of 7 hours’ additional work on a casual basis for Computer Heaven;
(2)	 during the same week, on 5 April 2002, the claimant spent a total of 4 hours on his own computer attempting to gather internet addresses which he hoped to be able to sell on to someone else to use for marketing purposes, but this activity was abortive and he never made anything from it; 
(3)	 during the following week commencing 8 April 2002 he spent a total of 6 hours reformatting and restoring the data on a hard disk on his brother’s computer, for which his brother paid him £35;
(4)	 also during the week commencing 8 April 2002 (though referred to by mistake in the tribunal chairman’s statement of reasons on page 50 as if it had taken place the previous week) the claimant spent a further 5 hours working on and transferring data to an external backup device (“zip drive”) of his own which he was replacing and hoped to persuade his brother to buy from him second hand, though there was no agreement about this between them at the time.
10.	The tribunal accepted and found as a fact that each of these activities had been carried out by the claimant; the question it quite correctly addressed was the extent to which all or any of them could count for the purposes of the “regular employment” conditions.  I accept the submission of Mr Lewis on behalf of the Secretary of State that for this purpose the tribunal’s use of the expression “remunerative work” instead of “gainful employment” which is the wording actually used in the regulation cited above does not in fact involve or demonstrate any misdirection on the part of the tribunal: it is in my judgment quite clear from the context and the way the tribunal addressed the various activities that it had the requirements of the regulations (to which the Secretary of State’s written submission had drawn attention in detail) well in mind.  
11.	The chairman’s decision was that the seven hours’ work for Computer Heaven in the week of 1 April 2002 could count as gainful employment for this purpose and was thus included in the average, so that the total of 55 hours for that and the preceding four weeks meant that the condition was still satisfied for that week; but that the only other hours that could be counted as “gainful employment” were the further six hours’ work the following week on repairing the brother’s hard drive for payment.  The chairman rejected the five hours spent on preparing the backup drive in the hope of persuading the brother to buy that as well, and also the four hours’ additional activity surfing the internet, as “trivial and/or activity preparatory to commencing work”, as distinct from actual gainful employment in its own right.  The consequence was that since only six hours in the week commencing 8 April 2002 could count as gainful employment, the average of that and the preceding four weeks dropped below 10 hours and the continuity was therefore broken.  
12.	In my judgment, Mr Lewis was right in submitting that whether the activities actually carried on by the claimant in the two periods disallowed amounted to “gainful employment” for the purposes of the regulations was a question of fact and degree for the tribunal chairman, as the tribunal of fact seeing and hearing the evidence, to determine.  As already indicated I do not think it arguable that he materially misdirected himself as to the test to be applied, and the conclusions he reached on each of these periods of activity were in my judgment conclusions any reasonable tribunal could quite properly arrive at, given the nature of the activities themselves and the paucity of evidence to show that they were work carried out for another person on a paid basis under either a contract of service or a contract for services, or otherwise such as to make the hours spent on them count as “gainful employment” in the sense required.  His reasons for finding them trivial and/or speculative so that they could not count for this purpose are sufficiently and clearly explained in the decision.  
13.	Accordingly in my judgment there was no material error of law in the decision as set out in the statement of reasons that could justify my taking the course urged on me by the claimant, which was to set the entire decision aside and hold that the continuity of his regular employment had never been broken.  There is in my judgment no question of the evidence showing that he ever had a fresh or continuing contract of employment with any employer over the fortnight from 31 March to 15 April 2002, or of the chairman’s decision amounting to discrimination against him as a disabled person, which were alternative points canvassed in the course of the written and oral argument.  
14.	I therefore formally allow this appeal only to the extent of confirming the substitution of 7 April 2002 for the date given in the original Secretary of State’s decision as the date when the claimant’s reduced earnings allowance had ceased and his entitlement was transferred to retirement allowance.  

(Signed)
P L Howell
Commissioner
29 April 2003