Application No: A6/98(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

JOBSEEKERS ALLOWANCE

Application by the above-named claimant for
leave to appeal to the Social Security Commissioner
on a question of law from the decision of the
Newcastle Social Security Appeal Tribunal
dated 25 February 1998

DETERMINATION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application, leave having been refused by the Chairman, for leave to appeal against a decision dated 25 February 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Newcastle.

2.	The claimant's grounds of appeal were contained in a letter (and enclosures) dated 26 June 1998.  Mrs McRory of Central Adjudication Services made observations on same by letter of 6 October 1998.  I held an oral hearing of the application which Mrs O’G... attended and at which she was represented her husband. Miss Stewart attended, representing the Adjudication Officer and opposed the application.

3.	At the hearing Mr O’G... handed in a lengthy submission.  As Miss Stewart had not had an opportunity to see the submission earlier I received same on the basis that if I did intend to grant leave to appeal I would let Miss Stewart see the submission and give her adequate opportunity to make observations on same.  Mr O’G... also handed in 2 copy letters.  The first was a copy of a letter from Mrs O’G... to the South Eastern Education and Library Board dated 29 August 1998 and the second, a letter dated 15 September 1998 from that Board to Mrs O’G....  As neither of these letters had been before the Tribunal I explained to the parties that I would be unable to take same into consideration in deciding whether or not the Tribunal had erred in law. They could only be taken on board at appeal stage if the proceedings reached that stage.

4.	The fact situation was that the Tribunal was initially dealing with a decision of an Adjudication Officer dated 11 August 1997.  While this decision is not clearly phrased it appeared to be to the effect that Mrs O’G... was to be treated as a part-time worker during the periods of school closure, despite the fact that she received no income for that period.  Her income throughout the year should be taken into account in the normal way.  The decision was inadequate in that it did not indicate what the normal way was to be, and in short it did not determine Mrs O’G...'s claim for Jobseekers Allowance.  It would appear however that the decision was treated in the local office and by Mrs O’G... as a refusal of benefit for the period from 11 July 1997.  I think that it is correct to treat the decision in this way but would express my concern at the terms of that decision.

5.	At the stage of submission to the Tribunal the Adjudication Officer made a submission at paragraph 6.2 and 6.3 as follows:-

		"6.2	The Tribunal's attention is drawn to the fact that the 
			adjudication officer's decision was given in ignorance of 
			the material fact that Mrs G… [sic] was employed for 
			over 16 hours per week during her term-time contract and 
			therefore was engaged in remunerative work.  The review decision 
			is presented for consideration by the Tribunal as follows:-

			"Mrs O’G... was absent from employment by reason of holiday on 14.07.97 and 15.07.97 and therefore should be treated as 
			engaged in remunerative work for both days.

			She was not absent from employment by reason of holiday from 08.07.97 to 13.07.97 or from 16.07.97 to 08.08.97 and therefore should not be treated as engaged in remunerative work for both periods.

		6.3	As the review decision means that Mrs O’G... has entitlement 
			to Jobseeker's Allowance for the full period of her claim other 
			than 14.07.97 and 15.07.97, the only question for consideration 
			is whether or not Mrs O’G... is treated as engaged in remunerative work on both these days."

6.	It also clearly set out the grounds for the disallowance of benefit on 14.07.97 and 15.07.97.  This was done at paragraph 6.4 where the Adjudication Officer stated:-
		"I would submit that Mrs O’G... should be treated as engaged in remunerative work for those public/bank holidays which fall during 
		the period of her claim for Jobseekers Allowance ie 14.07.97 and 
		15.07.97. (Tab 5)."

		[Tab 5 referred to a letter from the South Eastern Education and 
		Library Board setting out certain statutory holidays for 
		administrative, executive, clerical, professional and technical staff 
		employed by the Board.]

7.	I was concerned as to whether there had been any violation of the rules of natural justice in connection with the hearing.  It is, however quite apparent that there was not.  It seems that the submission by the Adjudication Officer (which in large measure was to the claimant's advantage) was handed to her and her husband at 3 pm on the day of the hearing and the appellant was advised that she could seek an adjournment on the grounds that she did not get the papers earlier.  The appellant decided to proceed.  The submission being largely to the claimant's advantage I do not consider that in the circumstances there was any violation of the rules of natural justice.

8.	The Tribunal's decision, which was unanimous, was phrased as follows:-

		"Appeal disallowed.  

		Appellant was absent from employment by reason of holiday on 14 July 
		1997 and 15 July 1997.  The appellant is treated as engaged in 
		remunerative work on both these days ie public/bank holidays on 
		14 July 1997 and 15 July 1997".

9.	Under Findings of fact the Tribunal records:-

		"4.  The appellant was not absent from employment by reason of holiday 
		from 8 July 1997 to 13 July 1997 or from 16 July 1997 to 8 August 1997 
		and therefore should not be treated as engaged in remunerative work 
		for both these periods.
  
		5.  The appellant has entitlement to Job Seekers Allowance for the full 
		period of her claim other than 14 July 1997 and 15 July 1997.

		6.  The appellant was absent from employment by reason of holiday on 
		14 July 197 (sic) and 15 July 1997 and should be treated as engaged 
		in remunerative work for both these public/bank holidays, which fall 
		during the period of her claim for Job Seekers Allowance".

10.	The Tribunal stated that the Appeal was disallowed.  This on its own would have meant that it was upholding the original Adjudication Officer's decision to disallow benefit from 11 July 1997 on. It is however quite apparent reading the decision in its entirety that the Tribunal's actual decision was that it was only for 14 and 15 July 1997 that the claimant was to be treated as in remunerative work.  It appears that this construction of the decision was taken by the Department and that Mrs O’G... was paid all the arrears of benefit apart from that relating to 14 and 15 July 1997.

11.	I did consider whether or not I was obliged to set aside the Tribunal's decision for this technical error.  As the decision appeared to me to be substantively correct I did not consider that the error vitiated the decision.  In this I was influenced by a decision of the Chief Commissioner, C3/97(ICA).  In that case also a Tribunal purported to disallow an appeal but then proceeded to make a decision which was inconsistent with the Adjudication Officer's decision.  The facts in relation to the Adjudication Officer seeking to have an earlier incorrect decision corrected were similar to the present case.  The Chief Commissioner stated:-

		"It would have been preferable if the Tribunal had stated specifically 
		that it was upholding the decision of the Adjudication Officer as set 
		out in his submission, but it is entirely clear what the Tribunal was 
		in fact doing - namely deciding that Invalid Care Allowance was not 
		payable from and including 13 January 1993 to 12 November 1995.  To 
		some extent the words "Appeal Disallowed" in the decision are mere surplusage.  Accordingly I do not consider that there has been any 
		error in law in the Tribunal's decision in this respect."

12.	In the present decision it appears to me to be apparent that the Tribunal was upholding what the Adjudication Officer had set out as being the correct decision in the submission ie to disallow only for 14 and 15 July 1997.

13.	I come now to deal with the issues relating to 14 and 15 July 1997.  Mr O’G... at hearing and in his submission and written correspondence, referred to the 21 principles set out in Umpires Decision 18284/32, produced in an appendix to decision R(SB)7/84.  That appendix sets out various main principles (21 in number) which having been applicable in unemployment cases, were considered to be equally applicable for supplementary benefit cases.  Mr O’G... considered that there were breaches of certain of these principles.  He set out the principles which he considered had been breached at paragraphs 29, 30 and 31 of his written submission.

14.	Mr O’G... also made an argument at paragraph 33 of his submission in relation to a distinction between remunerative work and the subsisting of the contract of employment. He referred me in that instance to CIS/521/1994.  He also argued that CIS/14661/1996 was not directly on all fours with this case on the facts, in that in Mrs O’G...'s case, while the pupils are not attending the school, members of staff have access to it and it could not therefore be said that the premises were closed.

15.	While there is no doubt that the principles set out in R(SB)7/84 have relevance to deciding whether or not a claimant is in a period of recognised, customary or other holiday the principles must be read as a whole and the evidence given in any particular case obviously determines which principles are applicable.  The principles really seem to be an amplification of the general rule that for a holiday to be a recognised customary or other holiday for a claimant, it must be a recognised customary or other holiday for that claimant in her employment.  

16.	This does not however, mean that the holiday is a day when the claimant herself would wish to be on holiday.  It can be a holiday which is imposed in the sense of being contained either in the conditions of employment or the customs of the employment and the claimant by entering into the employment being deemed to have accepted same.

17.	In this particular case the Tribunal had before it a statement of terms and conditions of service.  The conditions of service at paragraph 6 stated:

		"STATUTORY AND OTHER PUBLIC HOLIDAYS.

		Clerical staff will be entitled to statutory holidays with pay where 
		such holidays fall during term time.  There will be no entitlement to 
		pay in lieu of holidays falling during school holidays".

18.	The Tribunal also had before it a letter dated 8 November 1996 from the South Eastern Education and Library Board and addressed to Administrative Executive Clerical Professional and Technical Staff.  This letter was headed ".... Statutory Holidays 1997" and stated:-

		"Please ensure that all AECP & T staff are informed of the following 
		holiday arrangements".

	They then included Monday 14 July 1997 and Tuesday 15 July 1997 - 2 days.

19.	It appears to me that on the basis of this evidence the Tribunal was entitled to conclude (as it did) that those said 2 days were days of recognised customary or other holiday for Mrs O’G....  Mr O’G... raised the argument that his wife had no entitlement to pay for statutory holidays falling within the school holidays and that the condition No 6 set out above was meaningless if the sentence was read that she was entitled to be paid for statutory holidays in term time, but not for those which did not fall during term time.  I do not think that that sentence is in any way meaningless even though it is read in that manner.  I think that this is precisely what the Board was setting out.  Had there been no entitlement to holidays (whether with or without pay) which fell during school holidays there would have been no need for the second sentence set out in condition No.6.  It is based on the assumption, which is borne out by the letter of 8 November 1996, that there will be days of statutory holiday which fall outside term time and for which term time only staff will not be paid.  I consider that the Tribunal did not err in law in this respect.

20.	I would also mention further that the various principles set out above include also a principle set out in the said appendix as follows:

		"3.	A recognised holiday does not cease to be such merely because it 
			falls during a time when the establishment is closed owing to 
			economic causes, or because it falls at a time when a particular claimant would in the ordinary course have been "stood off" under 
			a system of short-term working, or because it falls on a day upon which no work is usually done, either in the establishment 
			generally or by a particular shift or by the particular claimant".

21.	As regards the grounds based on CIS/521/1994, as Commissioner Goodman correctly stated at paragraph 8 of that decision in deciding whether or not a claimant is engaged in remunerative work:-

		"That word "engaged" shows the emphasis on a claimant, if he or she is 
		to be disentitled to income support, actually doing some work during 
		the period of proposed disentitlement.  It is not tied to the separate 
		and distinct question as to whether a claimant is subject to a 
		contract of employment for that period."
 
	However, what the Tribunal was dealing with here was not whether Mrs O’G... was actually engaged in work on the 2 days in question - there was no doubt that she was not; what it was dealing with was whether or not under regulation 52 she should be treated as engaged in remunerative work.  She could be so treated only if her absence from work was either without good cause or by reason of a recognised customary or other holiday.  The Tribunal concluded on the basis set out above that Mrs O’G... was on a recognised customary or other holiday.  It therefore recognised the distinction and Mr O’G... is quite correct that such a distinction exists between the subsistence of the contract of employment and whether or not the claimant is actually engaged in remunerative work.  The Tribunal did not err in law in this respect.

22.	With regard to the distinguishing of Commissioner Rowland's decision CIS/14661/1996 on the facts of the case,  Mr O’G... stated in particular that he concluded that Commissioner Rowland's decision only makes sense if he treated the fact that the building was closed as an important fact.  Otherwise he contradicted himself.  This does not appear to me to be correct.  In any event in this case it does not matter whether or not the school in its entirety was closed for the 13, 14 and 15 July 1997.  There is no doubt that the Tribunal was entitled to conclude on the information which it had before it that those days were days of holiday for Mrs O’G....  As Mr O’G... has indicated her employer was the Board, not the Headmaster of the school.  I should, however, also make it clear that I do not consider that the fact that members of staff (I refer in particular here to teachers) are expected to carry out work outside term time does not mean that they are not on holiday during this time.  They are not obliged to come in to work at all or to come in at particular periods of time, they do their work as professional people because it is necessary to the correct and proper performance of their jobs but they are free as to when this done and indeed it could presumably be done during term and by working at night etc.  They can still be on holiday although coming in to do some work from time to time.  As Commissioner Rowland was also dealing with an educational institution it is quite probable that certain people may have come in over the holiday period to do preparation or other work.  The relevant thing is that they were not obliged by their contract of work so to do.

	Similarly the fact that certain members of staff were keyholders does not mean that an institution cannot be closed.  People holding keys and being able to come in does not mean that an institution is not closed for its normal purpose.  It is the institution rather than the building which is relevant.

23.	As I mentioned previously I have some concern with the manner in which this case has been dealt with both by the Adjudication Officer initially and then by the somewhat inexact phraseology of the Tribunal's decision.  I am, however satisfied that there was no error in law made and that the substantively correct decision was eventually made by the Tribunal.  I therefore dismiss the application for leave to appeal.

	(Signed):  M.F. Brown 

	COMMISSIONER

	19 February 1999