Decision No: C2/02-03(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKERS ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 24 April 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant, against a decision dated 24 April 2002 of an Appeal Tribunal sitting at Omagh.  That Tribunal disallowed the claimant’s appeal against a Departmental decision in relation to Jobseekers Allowance.  It held that she was not entitled to the allowance from 1 July 1999 as she was in remunerative employment.  A hearing was not requested and I consider that I can properly decide this appeal without a hearing.  The claimant did not supply a full statement of reasons as required by regulation 10 of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999.  In exercise of my powers under regulation 27 of the said regulations I waive this irregularity.

2.	My decision is that the appeal is dismissed. 

3.	The claimant set out her grounds of appeal in an OSSC1 form received in the Commissioner’s office on 7 August 2002.  Essentially these grounds consisted of her stating that she had previously had Jobseeker’s Allowance and had taken it that she would have it again and objected to it being removed.

4.	The background facts of the case are that the claimant worked as a classroom assistant employed by the Western Education and Library Board.  She had no periods of work during the school holidays and had hours of work during term time only.  She had been so employed since 7 January 1997 and was contracted to work 30 hours per week, 38 weeks per year.  Her contract subsisted throughout periods of school closure and there was an implied agreement that she would resume her employment after the vacation.  She claimed Jobseekers Allowance (income based) from 1 July 1999 during the school’s summer holidays period.  She was disallowed by the adjudication officer on the basis that she was in remunerative work as defined by regulation 51 of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996.  If she was in remunerative work she could have no entitlement to Jobseeker’s Allowance because of Article 3(2)(e) of the Jobseeker’s (Northern Ireland) Order 1995.

5.	A hearing was not requested in this case and I consider that I can properly decide the matter without a hearing.

6.	The Department made observations on the appeal in two separate letters dated 19 December 2002 and 24 February 2003.  It opposed the appeal. No further observations have been made by the claimant.  I granted leave in the case as an arguable issue appeared to arise as to whether or not the Tribunal had erred in law in relation to the application of regulation 51(2)(c) of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 and Directive 79/7 EEC (the Directive on equal treatment of men and women).  This arose from the Tribunal of Commissioner’s unified decisions in cases CJSA/2079/1998, CJSA/4014/1998 and CJSA/426/1999; and CJSA/5732/1999, CJSA/5836/1999 and CJSA/3444/2000.  In the second of these decisions, dealing with appeal CJSA/5732/1999 and others, the Tribunal of Commissioners in Great Britain decided that regulation 51(2)(c) of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 was in violation of the said Directive.  It considered that that regulation disadvantaged disproportionately more women than men.

7.	The equivalent Northern Ireland provision is contained in regulation 51 of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 which provides:

“(1)	For the purposes of the Order “remunerative work” means –

(a)	in the case of the claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week, and

(b)	in the case of any partner of the claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 24 hours per week, and

(c)	in the case of a non-dependent, or of a child or young person to whom paragraph 18 of Schedule 5 refers, work in which he is engaged, or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week,

and for those purposes, work is work for which payment is made or which is done in expectation of payment.

(2)	For the purposes of paragraph (1), the number of hours in which the claimant or his partner is engaged in work shall be determined –

(a)	where no recognisable cycle has been established in respect of a person’s work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which he is expected to work in a week;

(b)	where the number of hours for which he is engaged fluctuate, by reference to the average of hours worked over –

(i)	if there is a recognisable cycle of work, and sub-paragraph (c) does not apply, the period of one complete cycle (including, where the cycle involves periods in which the person does not work, those periods but disregarding any other absences);

(ii)	in any other case, the period of 5 weeks immediately before the date of claim or the date of review, or such other length of time as may, in the particular case, enable the person’s average hours of work to be determined more accurately;

(c)	where the person works at a school or other educational establishment or at some other place or employment and the cycle of work consists of one year but with school holidays or similar vacations during which he does no work, by disregarding those periods and any other periods in which he is not required to work.”

8.	The claimant was unrepresented in this case and has not presented detailed argument.  The case is not therefore an ideal vehicle to express any concluded view as to the unified decision in CJSA/5732/1999 and others though I can at present see no reason to differ from it.  It is not necessary for me to express a concluded view in this case because I agree with the Department’s view that even if regulation 51(2)(c) was to be removed as inconsistent with the said Directive the claimant’s cycle of work is a 52 week cycle and dividing her hours of work by 52 still brings her above the average of 16 hours per week referred to in regulation 51(1)(a) and means that she must be considered, for the relevant period, as having been in remunerative work. Whether, therefore, regulation 51(2)(c) is valid or not is irrelevant in this case as the claimant could not succeed either under it or under regulation 51 with that portion removed.  Regulation 51(2)(b)(i) would entail the claimant’s hours of work being calculated over the hours of work for the whole cycle including periods of no work.  There being no dispute that the claimant’s employment continued, even if her hours are averaged over the 52 week cycle, using regulation 52(b)(i) they would exceed 16 hours per week. This is because the determination of being engaged in remunerative work applies for the whole period of the cycle including periods of no work.  If the hours were to be calculated under regulation 51(2)(c) the hours worked would be divided over only 38 weeks and would be even higher but again the determination of being engaged in remunerative work would apply for the whole of the 52 week cycle including any periods of no work.

9.	The claimant has mentioned the ground of her having an expectation that a benefit previously awarded in school vacations would be awarded again.  The expectation is not unreasonable but the only legal expectation can be that benefit entitlement be correctly determined in accordance with the applicable legal provisions.  In this case it was so determined. The appeal must therefore be dismissed.

10.	For completeness sake, I would mention an earlier decision of my own, decision C2/99(JSA).  As I stated above it is not necessary that I give a concluded view on the decision in CJSA/5732/1999 and others, though I can see no reason to disagree with it.  In C2/99(JSA) no evidence was produced as to possible inconsistency of regulation 51(2)(C) with Directive 79/7EEC.  However, it follows from the said Great Britain decision that the approach in C2/99(JSA) is questionable.

(Signed):	M F Brown

Commissioner

2 July 2003