CJSA/4764/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Wakefield appeal tribunal dated 10 September 2002 and I substitute the decision they should have given:  the claimant was not engaged in remunerative work at the date of his claim for jobseeker’s allowance.  I leave other questions arising on his claim to be determined by the Secretary of State.

REASONS

2.	The claimant was employed as a taxi driver working 20 hours per week during school term time only, driving children to and from schools.  He claimed jobseeker’s allowance on 21 December 2001 for the Christmas holidays but his claim was disallowed on the ground that he was in remunerative work.  His appeal was dismissed by the tribunal who relied on regulation 51(2)(c) of the Jobseeker’s Allowance Regulations 1996.  The claimant now appeals with my leave.

3.	It is common ground that the tribunal’s decision is erroneous in point of law.  In R(JSA) 4/03, it was held that regulation 51(2)(c) was inconsistent with Council Directive 79/7/EEC and should be disapplied, with regulation 51(2)(b)(i) being applied in its place.  In R(JSA) 5/03, the operation of regulation 51(2)(b)(i) was considered in relation to term-time workers and it was held that the number of hours worked over a year should be divided by the number of weeks in the year, including weeks of no work during school holidays but excluding weeks that the claimant was entitled to take as holiday.  It was said that, where the Working Time Regulations 1998 applied, it could generally be assumed that a claimant was entitled to four weeks holiday in the absence of any evidence of greater entitlement.  

4.	It is submitted that I should refer the case to another tribunal for the claimant’s holiday entitlement to be established and for the other questions arising on his claim to be determined.  However, I am satisfied that I can determine on the material before me the question raised by the appeal to the tribunal.  Other questions can be determined by the Secretary of State and the claimant can appeal again to a tribunal if there is any dispute.

5.	The claimant’s contract of employment makes no reference to holidays and I infer that he had no contractual right to holidays.  Regulation 13 of the Working Time Regulations 1998 provides that, in general, “a worker is entitled to four weeks’ annual leave in each leave year” but, by regulation 18(a), regulation 13 does not apply to those working in certain sectors of activity, i.e., air, rail, road, sea, inland waterway and lake transport, sea fishing and other work at sea.  As the claimant in this case worked in the road transport sector, he had no holiday entitlement under the Regulations.  Accordingly, even if he worked for as many as 40 weeks a year, the average number of hours he worked over a year was less than 16 and so he was not engaged in remunerative work for the purposes of his claim for jobseeker’s allowance.

	(Signed)	MARK ROWLAND
		Commissioner
		29 May 2003