[2007] UKSSCSC CJSA_3832_2006 (17 May 2007)

CJSA/3832/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Newcastle-upon-Tyne appeal tribunal dated 13 June 2006 and I substitute my own decision.  The claimant was not engaged in remunerative work on 19 December 2005.  I leave the Secretary of State to determine other issues arising on the claimant’s claim for jobseeker’s allowance from that date.

REASONS

2.	The claimant was employed as a porter/cleaner by the Union Society at the University of Newcastle-upon-Tyne.  He worked during university terms only.  At the end of the autumn term, the claimant’s contract of employment was terminated on 16 December 2005.  He and the other cleaners and porter were told that, if they were interested in re-employment from 9 January 2006, they should contact the facilities manager during office hours in the preceding week.  The claimant claimed jobseeker’s allowance on 19 December 2006 but the claim was rejected on the ground that he was engaged in remunerative work because the university vacations were part of an annual cycle of employment and, over the whole year, he was employed on average for more than 16 hours a week during the terms.  The claimant appealed.

3.	The Secretary of State’s submission to the tribunal was one of the most inadequate I have ever seen.  Having set out section 1(1) of the Jobseekers Act 1995 and regulations 51 and 52(1) of the Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207), paragraphs 6.6 and 6.7 simply said –

“6.6	There has been a lot of discussion relating to “term time” workers and entitlement to income Support and Jobseekers Allowance has been largely settled within the House of Lords in judgment 33 of 2001 CAO v Stafford and Banks.

6.7	The table at page 12 shows the weeks and hours that have been worked by [the claimant] over the previous year, using the guidance above.  It has been determined that he is employed in excess of 16 hours weekly and therefore has no entitlement to Jobseekers Allowance.”

4.	No mention was made of R(JSA) 4/03, in which a Tribunal of Commissioners held that regulation 51(2)(c) of the 1996 Regulations, dealing with cycles of work for those working in educational establishments, was inconsistent Council Directive 79/7/EEC and should be disapplied, or R(JSA) 5/03, in which the same Tribunal of Commissioners considered the circumstances in which those who worked in educational establishments should be regarded as remaining in remunerative work during vacations.  The claimant’s solicitors did not mention those cases either.  Nor did the tribunal when dismissing the claimant’s appeal.  The claimant now appeals against the tribunal’s decision with my leave and the support of the Secretary of State.

5.	As the Secretary of State submits, the tribunal plainly erred in relying on regulation 51(2)(c), but the hours the claimant worked were such that it did not matter whether or not regulation 51(2)(c) was valid because the same result would be obtained under regulation 51(2)(b)(i), if a cycle of work were established.  That error of the tribunal was therefore immaterial.  However, it is surprising to find the Secretary of State still relying on regulation 51(2)(c).  His decision-makers might be less confused if that subparagraph of the regulation were to be revoked.

6.	The tribunal found that the claimant was engaged in remunerative work because it found him to have a cycle of work “on a factual basis” simply because he had been re-employed at the beginning of every new term for “a little over a year”.  The Secretary of State submits that the tribunal erred in law in its approach to the case.  In paragraph 22 of R(JSA) 5/03, the Tribunal of Commissioners said –

“Where a contract of employment comes to an end at the beginning of what would be a period of absence from work even if the contract continued, the person should be taken still to be in employment if is expected that the he or she will resume employment after that period, either because there is some express arrangement, though not necessarily an enforceable contract, or because it is reasonable to assume that a long standing practice of re-employment will continue.”

The Secretary of State suggests that the Tribunal of Commissioners had in mind a long-standing practice that had been established over a period longer than “a little over a year”.  I am not sure that the length of the period – or perhaps more precisely the number of times the person has been re-engaged – is of itself a material consideration, but it may be evidence of the true nature of the relationship between the parties.  As was recently stressed in CJSA/1390/2006, the real question is whether the person claiming benefit can properly be regarded as being “in” work at the material time.  There must be some sort of continuing relationship between the employer and employee, even if it is not technically a subsisting employment relationship.  Unless the circumstances show some commitment to a resumption of the employment relationship by a former worker upon which an employer might reasonably place some reliance, it is difficult to see how a person can be regarded as being in employment between periods of work when his contract of employment has expressly been terminated.  It seems to me that there needs to be a “tacit understanding” or a mutual expectation such as was found in R(U) 1/66 and R(U) 8/68, discussed in R(JSA) 5/03.  In my judgment, the tribunal erred in apparently not distinguishing between a cycle involving periods of employment and periods of unemployment and a cycle of employment involving periods of work and periods of no work.  It is on that ground that I find the tribunal to have erred in law.

7.	As to the decision I should substitute, I accept the Secretary of State’s submission that the evidence in this case was insufficient to show a continuing relationship between the Union Society and the claimant during the vacation.  There was no evidence of any expectation by the Union Society that the claimant would resume employment.  The Union Society did not expect any notice from the claimant that he would not be resuming employment and it would not be difficult to find cleaners at the beginning of the next term whether or not the claimant declared himself available in the preceding week.  In those circumstances, I am satisfied that the claimant was not engaged in remunerative work when he claimed jobseeker’s allowance on 19 December 2006.

	(signed on the original)	MARK ROWLAND
		Commissioner
		17 May 2007