PLH                                  Rhifau ffeil/ Commissioner’s Files:  CI 3928/03 & 3931/03

DEDDF CEISWYR GWAITH 1995
DEDDF NAWDD CYMDEITHASOL 1998
JOBSEEKERS ACT 1995
SOCIAL SECURITY ACT 1998

APÈL YN ERBYN DYFARNIAD TRIBIWNLYS APÈL
YNGHYLCH CWESTIWN CYFREITHIOL
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DYFARNIAD Y COMISIYNYDD NAWDD CYMDEITHASOL
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Ceisiau am/Claims for:	Jobseekers Allowance 
Tribiwnlys/Appeal Tribunal:	Haverfordwest 
Rhifau achos/Tribunal case ref:	U/03/195/2001/00339, 2003/00052
Dyddiad/Tribunal date:	3 June 2003
Rhesymau/Reasons issued:	28 August 2003

[GWRANDAWIAD/ ORAL HEARING]

1.	These two appeals by the claimant must be dismissed, as in my judgment there was no error in law in the two decisions of the Haverfordwest appeal tribunal consisting of a chairman sitting alone on 3 June 2003, recorded in his two separate decision notices under tribunal case references 00339 and 00052 and the combined statement of reasons for rejecting the two appeals issued to the parties on 28 August 2003.  
2.	As the chairman correctly recorded, a good deal of confusion in this case has been caused by the Secretary of State’s representatives referring in their earlier submissions to the tribunal to provisions in the jobseeker’s allowance legislation which do not in fact apply to the claimant’s case at all.  It is understandable that the claimant’s husband, who has throughout acted as her representative, should have been bemused by the way the whole matter had been handled.  This bemusement was certainly not helped by the tribunal administration itself repeatedly issuing letters referring to the two appeals as “income support” appeals when in fact they were not.  This was apparently for reasons to do with the way they had set up their computer system, though why a human being could not have intervened to ensure that the letters were amended to the correct terms before actually being sent out remains a mystery.  
3.	None of that however alters the fact that when the two appeals finally came before the tribunal chairman for effective hearing, his decision was the correct one in law for the reasons he gave; and none of it means that the claimant has suffered any loss.  The true position has throughout been that she was not entitled to any jobseekers’ allowance, on either of the two claims she made on 13 April and 20 July 2001 which have given rise to these appeals.
4.	I held a combined oral hearing of the two appeals which had been directed by another Commissioner.  The claimant’s husband appeared and presented the case on his wife’s behalf, and Vaughan Lewis, of the solicitor’s office, Department for Work and Pensions, appeared for the Secretary of State.
5.	The claimant is a woman now aged 57, who has for nearly 20 years been working as a part‑time adult education tutor for the Pembrokeshire County Council.  There is no doubt that she has at all material times had a continuing contract of employment with the Council (a copy of the written particulars of her employment is at pages 41-46 of file CJSA 3928/03): an employment which had not terminated and was still continuing at the date of each of the jobseekers’ allowance claims she made.  In that sense she has always been in regular employment; but it is also common ground that her actual hours of work are “irregular”, in the sense that she has no entitlement to any set number of hours of work or working pattern, and is only paid for the actual hours she is required to work.  These can fluctuate widely from term to term, and depend on the particular courses offered by the Council, the extent of student enrolment and the Council’s requirements and financial ability to provide for the teaching needs on such courses throughout its area.  Thus the standard particulars of employment issued to the claimant stipulate expressly under the heading “Hours of Work” that 
“This is a variable contract … Your normal working hours are based on the needs of each course and will fluctuate depending on the course and time of year.  You will be given notice of the requirements of each course as and when they become available … the courses only operate during term time and therefore you are employed on the basis of a term time worker.”
6.	The claimant’s husband told me that in the past she had been in the habit of signing on and claiming jobseekers’ allowance for the school holiday periods, when under her terms of employment she was not being provided with any teaching hours and so of course not earning; and that on some occasions at least such claims had been allowed.  However as rightly pointed out in the written submission of Mr J Westerman on behalf of the Secretary of State at pages 105-108, that may simply mean that the claimant has been undeservedly lucky in the past. It cannot affect any question of entitlement on the two later claims of 13 April and 20 July 2001 which must be judged on a correct application of the actual legislation that applies, whatever view may or may not have been taken before in relation to previous claims for different periods.
7.	The way that legislation should be applied to this case is quite clear, and the conclusion reached by the tribunal chairman was the only one open to him.  As Mr Lewis in his helpful submissions to me began by emphasising, it is first important to clear out of the way what these appeals were not about; even though earlier submissions by the Secretary of State had suggested incorrectly that they were.  In the first place, they were not and are not about the income-based form of jobseekers allowance under section 3 Jobseekers Act 1995. This was a contribution-based claim, so that any entitlement fell to be judged under sections 1 and 2.  
8.	Secondly, they were not about whether the claimant met the condition of entitlement in section 1(2)(e) of being “not engaged in remunerative work”.  Although as noted above there is no doubt that her employment continued throughout the school holidays when she was not actually working, it is accepted that her total hours of actual work, computed on an annual basis at each relevant date of claim, work out at well below the weekly threshold figure of 16 hours prescribed for this purpose by regulation 51 Jobseekers Allowance Regulations 1996 SI No. 207. 
9.	It being thus acknowledged that the claimant met the two entitlement conditions of having paid the requisite contributions and not being in “remunerative work” at the relevant dates, the question that did arise on each claim was whether she also then met the further condition in section 1(2)(d) and section 2(1)(c), namely that she “did not have earnings in excess of the prescribed amount”.
10.	On this, the undisputed facts were that the claimant was not actually earning anything from her employment as a teacher at the date of either of the two claims, those dates being within the holiday periods when she had no teaching hours from which to get any payment.  However, on each of those dates she was still within a month of receipt of her most recent remuneration payment from the Council.  It was not in dispute that the way such payments were handled was for the Council to account through its normal monthly payroll arrangements for whatever was due to to her (and no doubt other teachers employed on a similar terms) for the total hours actually worked in the calendar month preceding that of each payroll payment date.  As the claimant’s husband pointed out to me, this could mean the actual payment for a particular teaching session could be anything up to six or seven weeks in arrear, so that for example a teacher’s return of hours actually worked in the month of April would be fed into the Council’s payroll machinery at or shortly after the end of that month, but would not result in any actual payment until the next payroll date, this being normally the 25th of the month, so she would get her money for April only in the last week of May. Details of the actual amounts paid from time to time to the claimant are at pages 27-30, and what is clear is that the claimant’s remuneration was at all material times being paid to her on a calendar monthly basis, with each payment representing a month’s work, paid at the appropriate hourly rate for the number of hours actually worked in the preceding month.
11.	Consistently with the state unemployment benefit which it replaced, the contribution-based jobseekers’ allowance treats a claimant who has recently received a payment of earnings as still being in receipt of earnings over a period measured forward from the actual payment date, even though in truth that payment may relate entirely to work done in a past period and there is nothing being earned in the current period at all.  This may be thought an unfair feature of the system but it is a longstanding one:  it is less a matter of imposing a means test than of the state insurance system against loss of earnings through unemployment not beginning to provide cover until the weeks for which a person’s earnings in hand would normally be expected to provide money for his or her general living expenses have run out.  
12.	Thus in determining whether in a week of claim the claimant does or does not have “earnings in excess of the prescribed amount” for section 2(1)(c), the provisions of the regulations for treating recent monthly or other payments of remuneration as covering a period forward from the date of actual payment have to be applied.  By regulation 56 of the 1996 Regulations, the “prescribed amount” for the purposes of section 2(1)(c) is to be calculated by a formula whose main element is the “age-related amount applicable to the claimant” under section 4(2) of the Act. That in turn was prescribed by regulation 79 as the weekly amount of £53.01 for a person aged over 25 at the material time for these two claims.  
13.	By section 35(3) “earnings” for the purposes of the Act is to be construed, in the absence of any express regulation to the contrary, in accordance with section 3 of the Social Security Contributions and Benefits Act 1992.  By section 3(1) and (2) of that Act “earnings” includes any remuneration or profit derived from an employment, and the amount of a person’s earnings for any period, or the amount of earnings to be treated as comprised in any payment to him or for his benefit, are to be calculated or estimated in such manner as may be prescribed.  The regulations made for that purpose are the Social Security (Computation of Earnings) Regulations 1996 SI No. 2745, regulations 6 to 10 of which deal with the calculation of earnings of employed earners.  Those provisions are complicated but in broadly similar terms to those within the Jobseekers’ Allowance regulations themselves, in Part VIII (“Income and Capital”), which as the claimant’s husband quite rightly pointed out deal primarily with the calculation of income and capital for the purposes of the income-based type of jobseekers allowance, and therefore extend to how you are to quantify not only earnings, but other forms of income as well.  
14.	Those provisions so far as they relate to earnings are however expressly introduced into the calculation of any entitlement to contribution-based jobseekers’ allowance by section 4(2) and regulation 80, which is made under it and provides that the deduction in respect of earnings which falls to be made in accordance with section 4(1)(b) from any amount which would otherwise be payable by way of a contribution-based jobseekers allowance for any benefit week is to be an amount equal to the weekly amount of the claimant’s earnings calculated in accordance with Part VIII (Income and Capital).  So it is not surprising that the two sets of provisions for calculating what counts as earnings, and the period to which they are to be treated as relating for benefit purposes, are to closely similar effect.  
15.	Reverting to the Computation of Earnings regulations which initially determine whether the condition in section 2(1)(c) is met, regulation 6 provides that earnings derived from employment as an employed earner shall be calculated or estimated over a period determined in accordance with the following paragraphs and at a weekly amount determined in accordance with regulation 8.  The period over which any actual payment is to be taken into account is, in a case where it is payable in respect of a period, such number of benefit weeks as comprise the period commencing on the date on which earnings are treated as paid under regulation 7 and ending on the day before the next date on which the earnings of the same kind from the same source would next fall to be paid, assuming the employment was continuing.  
16.	In my judgment there is no doubt on the facts in the present case that the payment received by the claimant’s wife on each monthly payroll date was a payment of her remuneration in respect of a period of a calendar month, notwithstanding that the actual amount of her remuneration in respect of that period may have varied from month to month because of the different number of hours actually worked.  It is not therefore necessary to go on to consider the alternative method of calculation under regulation 6, which only applies where the method just described does not.  
17.	Consequently, the period over which an actual payment of remuneration for a month’s work must be taken into account as “earnings” is the period of benefit weeks between that monthly payment date and the next monthly payment date when a further payment of remuneration would have been due to be paid to the claimant, assuming she then still remained in the Council’s employment and had worked further teaching hours for which she was entitled to be paid through the normal payroll arrangements.  
18.	By regulation 7, the date on which such earnings are to be treated as paid is the first day of the benefit week in which the payment is due to be paid, and by regulations 8 and 9 the weekly amount of earnings in fact paid on a monthly basis is to be calculated by multiplying by 12 and dividing by 52, exactly as set out by the tribunal chairman in paragraph 5 of his statement of reasons.  By regulations 9 and 10 the earnings actually to be taken into account means the gross remuneration less allowable deductions for income tax, national insurance contributions and pension payments (if any), so as to produce a net weekly figure for comparison with the “prescribed amount” in the way set out by the chairman in paragraphs 5 and 6.  As there explained by him, it is a matter of simple arithmetic to compare the two weekly earnings figures of £88.31 and £98.56 with the “prescribed amount” of £53.05 so as to show why at the date of her two claims the claimant failed to meet the condition in section 2(1)(c) of the Act of not having earnings for benefit purposes in those weeks exceeding the prescribed amount.  
19.	It must follow that at the relevant dates for which she was claiming she did not meet the conditions of entitlement for contribution-based jobseekers allowance, so that the chairman was right to hold the Secretary of State had made the correct decision in rejecting her claims, the practical effect of the provisions about earnings being the same under section 2(1)(c) as if they had fallen to be taken into account under section 3.
20.	For those reasons, I dismiss both of these appeals.

(Signed)
P L Howell
Commissioner
9 March, 2004