Decision No: C10/93(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

INCOME SUPPORT

Appeal to the Social Security Commissioner
on a question of law from the decision of the
Belfast Social Security Appeal Tribunal
dated 24 March 1993

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Social Security Appeal Tribunal relating to claimant's entitlement to income support and it comes by leave of the Chairman of that Tribunal.

2.	I arranged an oral hearing of the appeal at which claimant was represented by Mr R..., Solicitor of the firm of O'R… McD… & T… and the Adjudication Officer was represented by Mr McLaughlin.

3.	Briefly the facts are that the claimant was at the material time a part-time taxi driver.  He was in receipt of income support from 9 December 1991.  Prior to that he was working as a full-time taxi driver.  He reported that he was part-time from 10 January 1992 and commenced working part-time for A1 Taxis on 25 September 1992.  His contribution conditions did not satisfy the requirements for unemployment benefit so he was in receipt of income support.

4.	For some reason which is not immediately apparent, the Adjudication Officer instead of using the actual income earned by the claimant assumed an income of £3.00 per hour from the time the claimant arrived at the taxi rank until the time the last run was completed.  Claimant appealed to a Social Security Appeal Tribunal against the decision to assess his earnings at £3.00 an hour and also against the decision to count his hours worked as from the time he commenced sitting in the taxi cab until he left at the end of his working programme.  In his notice of application for leave to appeal he said:-

" I would contend that the only fair option is to consider the wages I actually receive when assessing me for income support purposes.  I keep a full record of my working and have always declared same but am now in a position were I am being denied income support due to the unrealistic method of calculating my earnings."

5.	In a submission to the Social Security Appeal Tribunal the Adjudication Officer in dealing with the point as to the number of hours submitted that the hours claimant worked should be calculated from the time he arrived at the taxi rank until completion of the last run and based that decision on the fact that -

"While he was not actually reporting earning any money during the period he was sitting in the taxi rank this period was nevertheless part of his job.  By sitting in the rank he was available to customers should they require his services ......  The Adjudication Officer when reaching his decision was comparing the waiting at the taxi rank to a shop assistant who may not always be selling produce but nevertheless he is working for his employer and has to be available to serve any customers who enter the premises.  At intervals the shop may have no customers.  The Adjudication Officer considered all the facts and decided his hours of work are to be calculated from the time he arrives at the taxi rank until the last run had been completed and between this period he is in continuous employment.  Therefore earnings will have to be assumed for this period."

6.	In relation to assumed earnings the Adjudication Officer submitted to the Tribunal -

"... the Adjudication Officer made the decision that £3.00 per hour was to be assumed from the time Mr O... first arrived at the taxi rank to commence employment until the end of his last run.  The Adjudication Officer decided that this was a very reasonable rate to assume for the work he is doing at present."

and then in justifying the amount of £3.00 an hour submitted that the Adjudication Officer was unable to obtain an hourly figure for a taxi driver so looked at the minimum wage for a labourer which is £3.00 an hour.

7.	The Social Security Appeal Tribunal which heard his appeal made the following findings of fact:-

"Claimant is in receipt of Income Support of £42.45 per week less earnings.  He works part-time as a taxi driver for A1 taxis and is an employed earner.  He has a PSV licence.  Claimants hours of work should be calculated from the time at which he joins the taxi rank until he completes his last run and during this period he is in continuous employment.  Claimant works on a commission basis and receives one third of his taking.  Most of his runs are local and for each local run the charge is £2.20 of which he receives 80p.

Earnings shall be assumed for the periods in which the claimant is in continuous employment.  Earnings calculated at 80p per hour as suggested by claimants employer or at £1.25 as suggested by claimant would not be reasonable as both figures would be less than for comparable low paid work in this area.  A reasonable hourly rate for his employment of part-time taxi driver on this basis would be £2 per hour.  The claimant failed to satisfy the Tribunal that A1 Taxis would have insufficient means to pay more.

No notional deductions can be taken into account from the gross earnings under Regulation 42(8).  The sum of £5 per week is to be disregarded from his earnings."

and decided to allow the appeal and gave its decision as follows:-

"Appeal allowed.  Notional earnings of £2 per hour should be assumed for claimant's work as part-time taxi driver.

Claimant shall be treated as employed earner during the period from which he joins the taxi rank until he completes the last run."

and recorded the reasons for their decision as:-

"The claimant is in continuous employment during the time when he is at the taxi rank awaiting calls to do taxi runs.  During this time he is not available to do any other work.  The earnings which he  reports are less than are paid for comparable employment in the area and notional earnings which would be reasonable for that employment must be assumed.  His employer has sufficient means to pay assumed earnings of £2 per hour.

Section 123 Social Security Contribution and Benefits Northern Ireland Act 1992 Regulation 42(b) Schedule 8 Income Support General Regulations Northern Ireland 1987."

8.	Claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law in that "the Tribunal has erred in its consideration of the question of notional earnings and comparable employment in the area."

9.	At the hearing before me Mr R... on behalf of the claimant said that he raised two points, one was the fact that the Adjudication Officer assumed an hourly rate when in fact he had the actual earnings of the claimant and secondly he said that it was wrong to assume that claimant was earning when he was waiting at the taxi rank for customers.  He argued that the claimant submitted sufficient evidence to support his actual earnings and that there was no necessity to assume any notional figure.

10.	Mr McLaughlin originally had some doubts as to whether or not the appeal was against the original decision or the Adjudication Officer's refusal to review the original decision and conceded after some argument that the appeal was in fact against the original decision.

11.	He said a person is not entitled to income support if he is engaged in remunerative work and remunerative work is defined in the Income Support (General) Regulations (Northern Ireland) 1987 in regulation 5 as ".... remunerative work is work in which a person is engaged, or, where his hours of work fluctuate, he is engaged on average, for not less than 16 hours a week being work for which payment is made or which is done in expectation of payment."   He said that neither the Tribunal or the Adjudication Officer considered whether or not claimant was in remunerative employment and whether he worked 16 hours a week or less.

12.	The second point made by Mr McLaughlin was that the number of hours claimant spent sitting at the taxi rank waiting for work was in fact work within the meaning of the regulations because he was there seeking work and that he would not be able to earn any money if he was not there willing and able to take a fare.  He argued that it was similar, as the Adjudication Officer had previously argued, to a person who works in a shop and part of the time may be busy and other parts of the time may have no work to do at all.  Nevertheless was in employment during the whole period.  He also supported  his argument by reference to the Market Trader case unreported Northern Ireland Commissioner's Decision A3/93(IS) where the time spent by the trader in setting up and dismantling his stall was taken into account in assessing the number of hours he worked.

13.	Dealing with the question of claimant's assumed earnings, Mr McLaughlin conceded that the Adjudication Officer was wrong in taking the wages of a person in a different employment because the regulations required that what must be looked at is a comparable employment in the area and accepted that comparable employment was other part-time taxi drivers.  He also said that if wages had to be assumed they should have been related to other taxi drivers.

14.	I have considered all that has been said and I have read all the papers in this case.  I am satisfied that this is an appeal against the original decision.  I am also satisfied that the hours which must be taken into account include the hours that claimant spent sitting at the taxi rank because it is an activity which is essential to his employment and therefore must be taken into the reckoning.  However the comparison between the driver sitting in a taxi rank and a shop assistant is false because a shop assistant is employed for set hours, say from 9 - 5 and is paid a wage for working those hours and there is no comparison between a taxi driver sitting waiting for work and a shop assistant waiting for a customer.  However the result is correct in that I am satisfied that because waiting at the taxi rank is part of a taxi driver's occupation it must be counted in as working hours.

15.	That brings me then to the question of what hours he actually works and I am satisfied that Mr McLaughlin is correct in that neither the Adjudication Officer or the Tribunal addressed the question of whether or not the claimant was in remunerative employment.  For that reason alone the decision must be set aside.

16.	Coming to the question of whether or not the Adjudication Officer was entitled to treat claimant as earning £3.00 per hour I am quite satisfied that the regulation 42(6) was never ever intended to be used as a stick to beat someone who is attempting to take himself off the unemployment register and work part-time even for a low wage.   Clearly that regulation is intended to cover the situation where someone, say a relative or member of the family works for nothing or for a nominal wage but I am quite satisfied that it is not and should never be used to punish someone who works for below an average wage.  I am also satisfied that there was no justification for comparing a part-time taxi driver to any other occupation other than a part-time taxi driver and it is difficult to see how any Adjudication Officer could say that £3.00 per hour was reasonable remuneration for a part-time taxi driver when in fact he had before him the actual figures the taxi driver was earning.  I can see no reason why those actual figures were not used and I am satisfied for that reason also the decision must be set aside.

17.	Mr McLaughlin accepts that the submission by the Adjudication Officer to the Social Security Appeal Tribunal left a lot to be desired and it was easy to see how the Tribunal was misled on the question of an hourly rate.

18.	For the reasons set out above I allow the appeal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal.  That Tribunal will consider the points which I have raised.

(Signed):  C C G McNally

COMMISSIONER

20 April 1994