CIB/1635/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  In this case I grant the claimant’s application for leave to appeal.  However, although it appears to me that there was an error in the reasoning of the tribunal, I consider that it came to the only conclusion open to it, and I dismiss the appeal.  I held an oral hearing of this appeal on 10 July 2006 at which the claimant appeared in person and Ms Mary Cheshire appeared for the secretary of state.  I am grateful to both for their help in dealing with the inter-relationship of the relevant statutory and regulatory provisions.

2.	  The appeal covers the academic year 2000-2001.  The claimant suffered from chronic fatigue syndrome and had for some years been treated as incapable of work.  He was a lecturer, and was in fact still able to work two days a week, Wednesdays and Thursdays, during term time.  He had previously been in receipt of incapacity benefit, and continued to receive incapacity benefit during half-term weeks and vacations during the academic year, as these were weeks when he did no work.  The claimant sought to claim for the five days each week during term time during which he did no work on the basis that, although he was to be treated as capable of work on the days on which he actually worked, he was incapable of work on the other five days, and was therefore entitled to benefit in respect of them.   

3.	  Section 30C(1) of the Social Security Contributions and Benefits Act 1992 provides as follows:

“For the purposes of any provisions of this Act relating to incapacity benefit, subject to the following provisions and save as otherwise expressly provided – 

(a)	a day of incapacity for work means a day on which a person is incapable of work;
(b)	a period of incapacity for work means a period of 4 or more consecutive days, each of which is a day of incapacity for work; and
(c)	any two such periods not separated by a period of more than 8 weeks shall be treated as one period of incapacity for work.”

4.	  In Chief Adjudication Officer v. Astle, [1999] EWCA Civ 1003, unreported but noted at (1999) 6 JSSL 203, the claimant contended that where two periods of incapacity were linked, so that there was a single period of incapacity by virtue of that provision, he was entitled to benefit not only on the days when he was incapable of work, but also on the days when he was capable of work.  That contention was rejected by the Court of Appeal, which held that the global period referred to in section 30C(1)(c) meant

 “a period of disability with a hole in it.  The first part, where there is a disability, attracts benefit after the third day; the intervening part, where there is not, does not attract benefit; the third part, when there is again disability, does attract benefit.”

5.	  The claimant in this case accepts that he was not entitled to benefit on the days when he was working, but claims that wherever there are four or more days that he was not working, he was entitled to make a fresh claim for benefit.

6.	  The tribunal considered that it was bound to find against the claimant by reason of the decision in Chief Adjudication Officer v. Astle.  I do not follow this reasoning.  That case was only concerned with a claim in respect of the days when the claimant was capable of work which was sandwiched between two linked periods where he was not capable of work, where by reason of the linking the whole period was said to be one single period of disability.  In this case the claimant is claiming in respect of days when he did not work.

7.	  The claimant’s problem in relation to weeks in which he worked is that regulation 16(1) of the Social Security (Incapacity for Work)(General) Regulations 1995 provides, as amended from 3 April 2000, that – 

“Subject to paragraphs (3) and (4) and regulation 13(3) (persons receiving certain regular treatment) a person shall be treated as capable of work on each day of any week commencing on Sunday morning during which he does work to which this regulation applies (notwithstanding that it has been determined that he is, or is to be treated under any of regulations 10 to 15 or 27 as, incapable of work or that he meets the conditions set out in regulation 28(2) for treating a person as incapable of work in accordance with the personal capability assessment until a determination has been made in accordance with that assessment unless that work –
(a)	falls into any category of exempt work set out in regulation 17(1); and
(b)	is done within the limits set out in regulation 17(2).”

8.	  Although the claimant’s work may have been exempt under regulation 17(1), it is common ground that his earnings exceeded the earnings limit in regulation 17(2).  It follows that if this provision applied to the claimant, he was to be treated as capable of work on each day in any week in which he worked even though he would, but for the work, have been treated as incapable of work.

9.	  The claimant has contended that regulation 16(1) does not apply to him because that provision is subject, inter alia, to regulation 16(3), which, he says, does apply to him.  Regulation 16(3), as amended from 3 April 2000, provides as follows:

“A person who does work to which this regulation applies in a week which is –
(a)	the week in which he first becomes entitled to a benefit, allowance or advantage on account of his incapacity for work in any period; or
(b)	the last week in any period in which he is incapable of work, 
shall be treated as capable of work by virtue of paragraph (1) only on the actual day or days in that week on which he does that work.”

10.	The claimant contends that he could make, as he sought to make, weekly claims for benefit each week during term time in respect of each period of 5 days between his two days of work.  On the making of each claim, say on a Friday, that week became the first week in which he became entitled to benefit, and the following week was the last week in any period in which he was incapable of work.  Accordingly, only the days on which he actually worked were days on which he was to be treated as capable of work.

11.	If that construction was right, then it is difficult to see what function regulation 16(1) could serve.  If there were fewer than four days between days of work, then there could be no linked period of incapacity, so that there would be no entitlement to benefit even apart from regulation 16(1).  If there were four or more days between days of work, then, provided a claim was made each time, there would be entitlement to benefit despite regulation 16(1).  Regulation 16(1) would thus seem to be surplus to requirements.

12.	However, the claimant’s approach appears to me to be based on the assumption that each new claim is in respect of a new period of incapacity.  In fact, in his case, each period of incapacity was within 8 weeks of the previous period, even ignoring the weeks when he worked.  The result is that they are linked by section 30C(1)(c) of the Social Security Contributions and Benefits Act 1992 so that they are treated as one period of incapacity.  This worked to the advantage of the claimant when it came to weeks when he did no work, but defeats his claim in weeks in which he did work.  This is because there was in his case one continuous linked period of incapacity so that the intermediate weeks are in no case the first or last weeks of a period of incapacity.

13.	Any such week is not “the week in which he first becomes entitled to a benefit… on account of his incapacity for work in any period” (emphasis supplied).  “In any period” must in my judgment refer to a period of incapacity for work and the claimant had in many previous weeks become entitled to benefit in respect of the same linked period of incapacity.  So too, any such week is not “the last week in any period in which he is incapable of work” because, with linking, the period in respect of which he is incapable of work continued into the subsequent weeks and months.

14.	The claimant has contended that this would leave regulation 16(3) empty of effect.  I do not consider that to be the case.  Any claimant who becomes sick will inevitably have a first week in which he becomes entitled to benefit, and in that week, regulation 16(3)(a) will apply.  If he recovers, there will come a week in the course of which he goes back to work.  In that week regulation 16(3)(b) will, on the face of it, apply.

15.	There is a problem if the claimant becomes sick again within the 8 weeks period, so that the linking provisions apply, because although it may have appeared at the time that the week the claimant went back to work was the last week in any period in which he was incapable of work, subsequent events will have shown that not to be so.  In my judgment, that is an evidential issue.  A decision maker could defer making a decision on the last few days of benefit until it can be seen whether the claimant falls ill again within the linking period, or whether the period of incapacity has indeed come to an end.

16.	The result is that although I consider that the tribunal took the wrong route, I find that it arrived at the correct decision, and I dismiss the appeal. 

	(signed on the original)	Michael Mark
		Deputy Commissioner
		13 July 2006