Commissioners file:  CIB/589/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the secretary of state with the leave of the chairman from a decision of the Newcastle upon Tyne Appeal Tribunal given on 2 August 2001.  No oral hearing has been sought for this appeal by either party and I am satisfied that I can decide the points of law which arise without such a hearing.  For the reasons set out below this appeal is allowed, I set aside the decision of the tribunal, and I substitute my own decision setting aside the decision of the adjudication officer on the basis that the hours worked by the claimant did not exceed the weekly limits imposed by regulation 17 of the Social Security (Incapacity for Work)(General) Regulations 1995, and that she made no misrepresentation in this respect.  

2.	A previous appeal in this case was determined by me on 1 February 2001 (CIB/1723/2000, starred as 16/01).  In that decision I set out the facts as they then appeared and remitted the case for rehearing by a new tribunal in accordance with directions which I then gave.

3.	Put briefly, the relevant facts were that the claimant had been in receipt of incapacity benefit from 17 January 1998 to 3 July 1999 after apparently misrepresenting that the number of hours in which she was engaged in therapeutic work fell within the limits provided by regulation 17 of the Social Security (Incapacity for Work)(General) Regulations 1995.

4.	The claimant had been employed during that time as an escort on school buses, and had stated that she was working 16 hours a week.  When the case was last before me, it was proceeding on the basis that she was in fact normally working 17.5 hours a week during term time only.  In addition, it transpired that during the last weeks of the period in question she had been earning slightly in excess of the earnings limit in regulation 17(2).  An adjudication officer had decided in a decision issued on 19 August 1999 that the claimant had been overpaid incapacity benefit in the sum of £5578.26 during the period in question which would not have been paid but for a misrepresentation by the claimant that she was working less than 16 hours a week.

5.	Before the new tribunal there was in evidence a list of the hours worked each week by the claimant.  That showed that while she had normally been paid for 17.5 hours per week each week during term time except for half term week, there had been a small number of weeks when she had been paid for fewer hours.  In addition, the claimant gave evidence to the tribunal as to what she did in the 17.5 hours each week.  On the basis of that evidence the tribunal found that the claimant’s hours of engagement were 7.20-9.20am and 3.15-4.45pm each day from Monday to Friday made up as follows.  The claimant lived near Morpeth and would travel each day by public transport to Morpeth bus station where she would board the bus to be used to transport the children.  The claimant would have been provided with a list of the children whom she would be supervising.  The bus would leave the depot at 7.20am and would be driven to Alnwick.  During part of this journey it would accept paying passengers, while for the remaining part it would not be accessible to fare paying members of the public.

6.	The claimant’s supervisory duties would only begin at about 8.15am in Alnwick, when the first children would board the bus.  The bus would then return to Morpeth collecting other children on the way.  There would be no fare paying passengers on the bus during its return trip to Morpeth.  The bus would normally arrive at the school in Morpeth shortly after 9.00am, and it was rare that it arrived later than 9.10am.  The claimant’s supervisory duties would end at the school when the children left the bus and she handed in a report she had written.  The bus would then return to Morpeth bus station.

7.	In the afternoon, the claimant would rejoin the bus at Morpeth bus station between 2.20 and 2.30pm.  It is unclear why she went so early as the tribunal also found that the vehicle only left the bus station at 3.15pm arriving at the school at 3.25pm.  It would then take the children back to their respective destinations between Morpeth and Alnwick, arriving at Alnwick between about 4.20 and 4.25pm.  On this occasion, the claimant’s duties were purely supervisory.  The bus would then leave Alnwick empty except for the driver and the claimant and return to Morpeth without collecting any new passengers, arriving at Morpeth bus station at about 4.45pm.  The claimant would then make her own way home using public transport.

8.	The total time involved each day was thus 3.5 hours, but the total time when the claimant actually had to do anything except sit on the bus was nearly an hour less in the morning and about 20-25 minutes less in the afternoon.  If either or both of those periods were to be excluded from consideration, the claimant’s hours of work were significantly less than 16 hours, and there would have been no misrepresentation by her as to the number of hours worked.  The new tribunal concluded that both periods were to be excluded from consideration because they were not periods of work but were simply a convenient method of the employer ensuring that the school escort arrived at the point from which the school escort duties began.  Payment for this period was for travelling time which was a matter of convenience for the employer and inconvenience for the employee for which the employee was compensated.

9.	The secretary of state contends that the tribunal was wrong to exclude the time spent travelling in the way it did.  In order to consider this, it is necessary to set out the relevant provisions of regulations 16 and 17.  Regulation 16(1) provides that a person is to be treated as capable of work on each day of any week in which “he does work to which this regulation applies … unless that work – (a) falls into any of the categories of exempt work set out in regulation 17(1); and (b) is done within the limits set out in regulation 17(2).  Regulation 16(2) provides that “Work to which this regulation applies is any work which a person does” with certain specific exceptions.

10.	Regulation 17(1) provides for certain work to be exempt.  This includes work undertaken on the advice of a doctor which helps to improve, or to prevent or delay deterioration in, the disease, or bodily or mental disablement which causes that person’s incapacity for work.  Regulation 17(2) provides inter alia that the weekly limits in relation to exempt work were that earnings from work of that type should not exceed a specified amount which has been increased from year to year and that subject to provisions for averaging hours in regulation 17(3), which I considered in CIB/1723/2000, the combined total of hours spent doing the work done by the claimant should not exceed 16 hours.

11.	In R(IS)13/99, the Court of Appeal had to decide whether time spent by a self-employed mini-cab driver waiting in the office for potential customers was work which is done in expectation of payment. At p.797 Peter Gibson LJ stated 

“The crucial question in this case is whether what the appellant did in waiting at the cab office can properly be called work at all.  Whether it can fell to be determined by the tribunal as the tribunal of fact, having regard to all the relevant facts.  Mr. Nicol [counsel for the appellant in that case] himself posed the test of whether what the appellant did was essential to the delivery of services by him as a mini-cab driver.  I agree….

It seems to me plain that the test was satisfied.  The appellant could only obtain work by making himself available to customers.  He needed to attend at the cab office in order to receive calls from customers.  That is no doubt why he chose to drive back to the cab office after taking a customer to whatever destination the customer wanted.

The Appellant himself asserts that time spent returning to the office is time in which he is engaged in work.  I see no difference between that time spent driving back to the office and his waiting time at the office, during which he is equally making himself available to take a far-paying passenger.  All the time spent waiting in the office and, when a call is received, going to the passenger, and driving the passenger to his destination and returning to the office, is time spent engaged in work as a mini-cab driver for which he was paid by the fares of the paying passengers.  The mini-cab driver waiting in the cab office is in no different position, as it seems to me, from that of a licensed taxi driver with his taxi sign lit when he wishes to show that he is available for taking passengers.”

12.	At p.798, Peter Gibson LJ went on to agree with the commissioner whose decision was under appeal that the issue was not whether the claimant was employed during his waiting time but whether he was at work within regulation 5(1) of the Income Support (General) Regulations 1987, and that there could be work without employment.

13.	That case was concerned with a self-employed person, whereas here the claimant was employed and was paid for all the hours she was on the school bus.  Further, as Peter Gibson LJ pointed out, whether what the claimant did could be called work fell to be determined by the tribunal as the tribunal of fact, having regard to all the relevant facts.  In this case, the tribunal concluded that having regard to all the relevant facts found by it in this case what the claimant did in the morning before the children got on the bus, and in the afternoon after they had all left it, was not work even though the claimant was paid for that time.  Rather it was a payment for travelling time.  As such, not only were the hours of work to be calculated ignoring the travelling time, but the earnings from the work do not include what was paid for the travelling time.  As a result, even when the claimant’s earnings appeared to go over the statutory maximum, once one took away the payments for travelling time, they did not do so.

14.	Insofar as these are findings of fact, I can only find that the tribunal was in error of law in coming to that conclusion if it is one which no reasonable tribunal could have come to.  I have no doubt that at least the last of these findings involves an error of law on the part of the tribunal, in that the whole of the payments made to the claimant were “earnings from work referred to in paragraph (1)(a)” of regulation 17, even if the tribunal was correct that part of the sums paid related to times spent travelling to enable that work to be done.  The claimant was employed to do that work and earned money from doing it.  It remained “earnings from work” even if part of the time she was paid for was not spent working.

15.	Accordingly, I find that the decision of the tribunal was in error of law, and I set it aside.  Further, as all of the primary evidence is now available and is not challenged, I can substitute my own decision for that of the tribunal.  Having already set aside the decision of the tribunal, I am no longer bound by any findings made by it.   Nevertheless, I have come to the conclusion that, at the very least, the time which the claimant spent on the bus each morning and afternoon after the children had left the bus was not time when she was “doing work referred to in paragraph (1)(a)(i)” of regulation 17, just as a lunch break was not time when a person is “engaged in work” for the purposes of regulation 5 of the Income Support (General) Regulations 1987, even though that person was paid for the lunch break (see CIS/3/1989) until that position was reversed from April 1990 by the new regulation 5(7).

16.	Insofar as an analogy is to be drawn with the case of the mini-cab driver, on the evidence before me it is with the time when he decides that he has done enough work for the day and sets off home in his cab.  The only purpose in continuing on the coach was to get to the bus station to catch a bus home, not because anything else remained to be done by way of work, or in the hope of getting work.  On this basis, the number of hours when the claimant was doing the relevant work was less than sixteen each week, even taking into account the time spent on the bus before the children got on.  It is therefore unnecessary to decide whether the claimant was doing work when travelling to collect the children.

17.	My decision in CIB/1723/2000 was written on the basis that the claimant actually worked 17.5 hours a week, as stated by her employers, and misrepresented the position to the benefits agency.  As it has transpired that in fact she worked less time than that, and indeed less than 16 hours per week, it is apparent that there was in fact no misrepresentation, and therefore no right to recover on that basis.

18.	The secretary of state has accepted that, on the basis that the hours did frequently exceed 16 hours per week, the proper approach was that summarised by me in para.21 of CIB/1723/2000 subject to an error to which his representative drew attention in para.21(e).  I there referred to the averaging of the claimant’s weekly earnings over a period of a cycle.  That was indeed a mistake on my part.  I had intended to summarise the effect of paras 18-20 of that decision, which related to the averaging of hours over such a period, as can be seen from my reference to weekly hours at the beginning of para.21(f).  The first sentence of para.21(e) ought to have read “In relation to any week after that cycle was established, the tribunal should determine what constitutes a period of that cycle for the purpose of regulation 17(3)(a), and average the claimant’s weekly hours over that period.”

19.	The decision of the adjudication officer was given on the basis that there was a material misrepresentation.  I have found that there was no misrepresentation and that the decision must be set aside.  There remains the question of the short period of 10 weeks when the claimant’s weekly earnings exceeded the maximum permitted by regulation 17(2).  I express no view as to the extent, if any, to which the secretary of state might now seek to recover any overpayment in this period.  No relevant non-disclosure or misrepresentation is relied on in the decision of the adjudication officer under appeal and it is unclear when the claimant first became aware of the pay rise and when she ought to have disclosed it, or when and how the relevant section of the benefits agency first became aware of it – it seems to have been brought to the claimant’s attention before she wrote her letter of 6 July 1999, which suggests that the relevant section may well have know about it some time earlier.

20.	The appeal is allowed and I substitute my own decision setting aside the decision of the adjudication officer as set out in paragraph 1 above.

(signed)	Michael Mark
		Deputy Commissioner

		9 July 2002