Northern Ireland - Social Security and Child Support Commissioners' Decisions

TC-v-Department for Social Development (JSA) [2013] NI Com 65

Decision No: C2/12-13(JSA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

JOBSEEKER’S ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 27 January 2012

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast on 27 January 2012.

 

2.     On 7 February 2013 I granted leave to appeal.  I held an oral hearing of the appeal on 20 March 2013.

 

3.     For the reasons I give below, I allow the appeal.  I set aside the decision of the appeal tribunal and under Article 15(8)(a)(ii) of the Social Security (NI) Order 1998 I make findings and I give the decision which the tribunal should have given, namely that the applicant is entitled to jobseekers allowance (JSA) from and including 9 September 2011.

 

         REASONS

 

         Background

 

4.     The applicant claimed JSA from the Department for Social Development (the Department) from 9 September 2011.  He stated in his claim form that he was a self-employed seasonal fisherman, working on the Lough Neagh Eel Fishery and that the season had ended.  The Department requested evidence of the applicant’s income from self-employment.  The Department decided that the applicant was in remunerative work for fewer than 16 hours per week and calculated his earnings over the period of one year.  His resulting entitlement to IS was calculated as nil.  He appealed.  The applicant did not request an oral hearing of his appeal.  The tribunal, consisting of a legally qualified member (LQM) sitting alone, disallowed the appeal.

 

5.     On 9 March 2012 the applicant requested a statement of reasons for the tribunal decision.  The application was late but the LQM granted an extension of time.  A statement of reasons was issued on 23 April 2012.  On 11 May 2012 the applicant made an application to the LQM for leave to appeal to the Social Security Commissioner but this was refused in a determination issued on 28 May 2012.  On 25 June 2012 the applicant made an application to a Social Security Commissioner for leave to appeal.

 

         Submissions

 

6.     The applicant, through his representative, Mrs Carty of Law Centre (NI), submits that the tribunal erred in law as:

 

(i)        it erred in its interpretation and application of regulation 95 of the Jobseeker’s Allowance Regulations (NI) 1996 (the JSA Regulations);

 

(ii)       it had failed to consider the applicability of regulation 101(11) of the JSA Regulations to the facts of the case;

 

(iii)      in the Departmental submission, the tribunal had not been provided with a copy of CJSA/1039/1999, which addressed the position of seasonal workers in a manner contrary to the approach of the Department.

 

7.     The Department was invited to make observations on the grounds of application.  Mr Woods replied for the Department.  He indicated that he did not support the application, seeking to distinguish CJSA/1039/1999 from the facts of the present case and relying in particular on GM v Secretary of State for Work and Pensions [2011] AACR 9.  Mrs Carty responded, in turn seeking to distinguish the present case on its facts from the authorities relied upon by Mr Woods.  As I considered that the applicant had demonstrated an arguable case, I granted leave to appeal.

 

         Relevant legislation

 

8.     By Article 3 of the Jobseekers Order (NI) 1995 (“the Order”),

 

3.—(1) An allowance, to be known as a jobseeker's allowance, shall be payable in accordance with the provision of this Order.

 

(2) Subject to the provisions of this Order, a claimant is entitled to a jobseeker's allowance if he—

(a) is available for employment;

(b) has entered into a jobseeker’s agreement which remains in force;

(c) is actively seeking employment;

(d) satisfies the conditions set out in Article 4;

(e) is not engaged in remunerative work;

(f) does not have limited capability for work;

(g) is not receiving relevant education;

(h) is under pensionable age; and

(i) is in Northern Ireland.

 

9.     JSA can take two forms – contributory or income-based.  Article 4, as referred to in Article 3(2)(d), sets out the contribution conditions.  These are not satisfied in the present claim as they require the payment of Class 1 national insurance contributions, which relate to employees, whereas the applicant, if he paid contributions, would have paid Class 2 contributions as a self-employed person.

 

10.   While the applicant did not submit that he was entitled to contribution-based JSA, he claimed that he was entitled to income-based JSA.  By Article 3(2A) of the Order, further conditions are attached to claims for income-based JSA.  The further conditions for a claim for income-based JSA appear at Article 5.  This reads, so far as relevant:

 

“5.—(1) The conditions referred to in Article 3(2A)(b) are that the claimant—

 

(a) has an income which does not exceed the applicable amount (determined in

accordance with regulations under Article 6) or has no income;

 

(b) is not entitled to income support, state pension credit or an income-related

employment and support allowance;

 

(c)… ;”

 

11.   “Remunerative work” for the purposes of Article 3(2)(e) above, is not defined in the Order. However, by regulation 1 of the Jobseekers Allowance Regulations (NI) 1996 (the JSA Regulations), “remunerative work” has the meaning prescribed in regulation 51(1) of the JSA Regulations. This provides as follows:

 

“51.—(1) For the purposes of the Order “remunerative work” means—

 

(a) in the case of a 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) …

 

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 a 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 supersession, 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;

 

…”

12.   I consider that it is also relevant that regulation 52(1) of the JSA Regulations provides:

 

“52. —(1) Except in the case of a person on maternity leave, paternity leave, adoption leave or absent from work through illness, a person shall be treated as engaged in remunerative work during any period for which he is absent from work referred to in regulation 51(1) (remunerative work) where the absence is either without good cause or by reason of a recognised, customary or other holiday.”

 

13.   By regulation 1(2) of the JSA Regulations, “self-employed earner” means “a person who is gainfully employed in Northern Ireland or the Republic of Ireland otherwise than in employed earner's employment (whether or not he is also employed in such employment)”.

 

14.   Regulation 95 of the JSA Regulations makes provision for the calculation of the earnings of self-employed earners as follows:

 

“95.—(1) Except where paragraph (2) applies, where a claimant’s income consists of earnings from employment as a self-employed earner the weekly amount of his earnings shall be determined by reference to his average weekly earnings from that employment—

 

(a) over a period of one year, or

 

(b) where the claimant has recently become engaged in that employment or there has been a change which is likely to affect the normal pattern of business, over such other period as may, in any particular case, enable the weekly amount of his earnings to be determined more accurately.

 

(2) …

 

(2A) …

 

(3) For the purposes of this regulation the claimant’s earnings shall be calculated in accordance with Chapter IV (self-employed earners) of this Part.”

 

15.   The JSA Regulations make further provision as follows:

 

“101.—(1) For the purposes of regulation 95 (calculation of earnings of self-employed earners), the earnings of a claimant to be taken into account shall be—

(a) in the case of a self-employed earner who is engaged in employment on his own account, the net profit derived from that employment;

 

(b) …

 

(2) Subject to paragraph (3), there shall be disregarded from a claimant’s net profit any sum, where applicable, specified in paragraphs 1 to 16 of Schedule 5.

 

…

 

(4) For the purposes of paragraph (1)(a) the net profit of the employment shall, except where paragraph (10) applies, be calculated by taking into account the earnings of the employment over the period determined under regulation 95 less—

 

(a) subject to paragraphs (6) to (8), any expenses wholly and exclusively defrayed in that period for the purposes of that employment;

 

(b) an amount in respect of—

 

(i) income tax, and

 

(ii) social security contributions payable under the Benefits Act, calculated in accordance with regulation 102, and

 

(c) one half of any premium paid in the period that is relevant under regulation 95 in respect of a personal pension scheme.

…

 

(11) Notwithstanding regulation 95 and paragraphs (1) to (10), the Department may assess any item of a claimant’s income or expenditure over a period other than that determined under regulation 95 such as may, in the particular case, enable the weekly amount of that item of income or expenditure to be determined more accurately.”

 

16.   A further relevant provision is paragraph 4 of Schedule 5 to the JSA Regulations.  Schedule 5 provides for sums to be disregarded in the calculation of earnings.  Paragraph 4 reads:

 

“4.  In the case of a claimant who has been engaged in remunerative work or part-time employment as a self-employed earner or, had the employment been in Northern Ireland, would have been so engaged and who has ceased to be so employed, from and including the date of the cessation of his employment any earnings derived from that employment except earnings to which regulation 95(2) (royalties etc.) applies.”

 

17.   Two key issues arise in the appeal.  The first is whether the appellant was in remunerative work when he claimed JSA for the purposes of Article 3(2)(e) of the Order.  The second is whether he had income in excess of his applicable amount at the time for the purposes of Article 3(2A) and Article 5 of the Order.

 

         The tribunal’s decision

 

18.   In deciding the appeal, the tribunal gave the following reasons for its decision:

 

“[The appellant] is a seasonal fisherman.  He worked from 01/05/11 to 07/08/11.  Claim for JSA was made on 09/09/11.

 

[The appellant’s] income will be calculated using the figures provided for the tax year 2010/2011, a net profit of £5911.  He is allowed to deduct class 2 National Insurance deductions of £2.40 a week for 52 weeks from this sum (a total of £124.80).  This equates to a weekly figure of £110.96, less a £5 disregard, making a weekly income £105.96.

 

As [the appellant] confirms in his letter of appeal (received 25/10/11 in Jobs and Benefits Office) he is seeking income based JSA.  Unfortunately as his income exceeds the applicable amount he will not therefore be entitled to income based JSA.

 

The chairman feels the wording of the Decision Maker was rather ambiguous as the decision stated “[The appellant] is entitled to JSA at a rate of zero from 09/09/11”.

 

A simpler decision could have been given in the following terms which would have been more easily understood:  [The appellant] will not be entitled to JSA from 09/09/11 as his calculated weekly income exceeds the applicable amount.

 

However, the end result is the same:- appellant does not qualify for JSA from 09/09/11.”

 

19.   The tribunal did not specifically address the question of whether the applicant, who is a self-employed person on a seasonal basis, was engaged in remunerative work, as defined by regulation 51 of the JSA Regulations.  This is because the Department accepted that he was engaged in remunerative work for fewer than 16 hours per week.  The tribunal has calculated the applicant’s resulting income on the basis of his profit and loss accounts for a 12-month period.

 

         Hearing

 

20.   At the hearing before me the applicant was represented by Mrs Carty.  The Department was represented by Mrs Rush.  I am grateful to both representatives for their submissions.

 

21.   In relation to the issue of remunerative work, the Department submits that the applicant was in remunerative work, albeit in a cyclical period of non-working, averaging fewer than 16 hours per week.  In arguing the contrary, Mrs Carty relied upon the reported GB Commissioner’s decision in R(JSA)1/07.  The different positions of the parties nevertheless mean that there is consensus on the question of whether the “remunerative work” requirement in Article 3(2)(e) is satisfied within the definition of regulation 51 of the JSA Regulations.  However, I consider that it is necessary to explore the different positions for an understanding of the respective approaches to the assessment of the applicant’s income.

 

22.   Mrs Carty relied on R(JSA)1/07, where Commissioner Howell considered the case of employed seasonal casual workers who worked for the same employers for consecutive years in the summer season only.  Their claims were disallowed by the Department on the basis that they were engaged in an on-going cycle of work that extended around the whole of the calendar year, and when the hours of work were averaged over the year they were in remunerative work of more than 16 hours per week for the purposes of regulation 51(1)(a) of the JSA Regulations.

 

23.   Commissioner Howell held that a tribunal which overturned the disallowance had not erred in law, as a summer season casual worker unable to get a job during the winter months was not engaged in remunerative work simply because he had been employed in previous summers.  In so finding, he reasoned that regulation 51(2) of the JSA Regulations was subordinate to regulation 51(1).  He said that there was no legal basis for distorting the meaning of regulation 51(1) by the selection of an averaging period for the calculation of hours for the purposes of regulation 51(2).

 

24.   Mrs Carty further relied on the decision of the Inner House of the Court of Session in Saunderson v Department for Work and Pensions [2012] CSIH 102.  That case concerned a golf caddie who was authorised by the St Andrews Links Trust to work on the St Andrews course in spring and summer and had done so for a number of years.  In October 2007 his authorisation was withdrawn due to the reduced demand for caddies during the winter months and he claimed JSA.  His claim was disallowed on the basis that he was a self-employed seasonal worker with a recognisable annual cycle of work, and that he was either in remunerative work or his average earnings over the course of a year was in excess of his applicable amount.  Mrs Carty highlighted the obvious similarities with the facts in the present case.  Mrs Carty submitted that there was no basis in the legislation for drawing a distinction between employed and self-employed claimants, relying on Saunderson at paragraph 20.

 

25.   Mrs Carty further relied on CJSA/1039/1999, which concerned a self-employed entertainer in summer holiday resorts, whose business was disrupted by unseasonal rainfall.  Commissioner Williams at paragraph 16 decided that the normal assumption attaching to self-employment - that self-employment was on a continuing basis - did not apply to seasonal workers.  Mrs Carty submitted that the first question to be addressed was whether the claimant was actually in work, and that this was not something to be answered by proceeding to look at the rules for calculating the number of hours worked in a week, which only applied once the claimant was in employment or self-employment.

 

26.   Mrs Rush for the Department made submissions to the effect that the present case could be distinguished from CJSA/1039/1999, as that case involved a deviation from a normal pattern of business.  She further sought to distinguish R(JSA)1/07 on the basis that the claimants in that case were not engaged in a cycle of work since there was no certainty that they would be re-engaged in a subsequent year.

 

27.   Mrs Rush continued to rely on the decision of Deputy Upper Tribunal Judge Paines in the reported decision of GM v Secretary of State for Work and Pensions [2011] AAR 9.  That case concerned a man who was self-employed etching car registration numbers on car window glass in order to deter theft.  This work was typically done outdoors in the evenings, with the result that in the winter months the claimant stopped trading because of the dark and cold.  Judge Paines referred to earlier case law and concluded that in order to determine if a seasonally self-employed person is “engaged in remunerative work” for the purposes of JSA it was necessary to average his hours of work over the year, taking into account the periods of no work as well as the hours worked in the periods of work, but disregarding holidays.

 

28.   At the conclusion of the hearing, I directed the parties to make observations on the question of the degree of authority which can be given to the decision of the Inner House of the Court of Session in Saunderson in the light of the House of Lords decision in Banks v Chief Adjudication Officer [2001] UKHL 33.

 

29.   In relation to the second issue, namely income, Mrs Carty relied upon her written submissions.  In essence she submitted that the applicant’s income should fall to be calculated over the course of his working season and not over a one year period.  She relied in particular on regulation 95(1)(b) and regulation 101(11) of the JSA Regulations and on Commissioner Williams decision in CJSA/1039/1999.

 

30.   Mrs Rush maintained that no exceptional circumstance permitted the engagement of regulation 101(11) and that earnings should be taken into account in accordance with regulation 95(1)(a).  She submitted that GM v SSWP should be followed, as a reported decision, in precedence over CJSA/1039/1999.

 

31.   There had been no oral hearing before the tribunal, and accordingly, no primary findings of fact by the tribunal, which based its findings on the Department’s submission.  The submissions of the applicant suggested that there was a misapprehension on the part of the tribunal as to the facts of the particular case.  For that reason, I granted permission to the applicant to give evidence, which might become relevant if I determine that the tribunal has in fact erred in law.

 

         Evidence

 

32.   In evidence, the applicant confirmed that he had been a seasonal eel fisherman in Lough Neagh for a number of years.  The method of fishing was to run baited lines for catching eels.  The eels would be stored alive on board and brought to the Lough Neagh Fisherman’s Co-operative Society for weighing and grading.  Any payment received would depend on the weight of the sellable catch on a given day.

 

33.   The eel fishing season runs from 1 May to early January.  However, in cold weather the eels burrow into mud on the floor of the lough.  After September, although some people would possibly fish in October, most would stop fishing.  This is because it would not be economical to fish in the cold weather, as the cost of lugworms and diesel would offset the profits from any catch.  In addition, helpers were required on the boats and the local children who typically acted as helpers on boats would go back to school.

 

34.   The applicant said that he normally fished into September of each year at the latest.  He had a licence for the duration of the season until January.  He had no children and employed a man as a helper on his boat, although it was increasingly difficult to find helpers because the work was unattractive.  In past years when he had stopped eel fishing he had gone to work on supply boats in Scotland.  In more recent years he had done some minor casual work only.  He had previously been awarded JSA at the end of the 2009 season.

 

35.   When the applicant completed a B16 form – a form for self-employed claimants - in August 2011 he wrote in response to the question as to whether he had stopped trading that the season had ended.  The reality was, he said, that the gear box on his boat had failed.  The gearbox had been in the boat for seventeen years and was a second-hand lorry gearbox.  He was unable to afford to replace it with a new gearbox and had been unable to source a suitable second-hand gear box.  He was unable to resume fishing and it took him several months to source a replacement.  In his claim form he had indicated that he hoped to resume work again on 1 May when the season started again.

 

         Assessment

 

36.   Two particular questions concerning the conditions of entitlement to JSA arise in this case from the requirements of Articles 3 and 5 of the Jobseekers (NI) Order 1995 (the Order).  The first is the issue of whether the applicant was “not engaged in remunerative work” within the meaning of Article 3(2)(e) of the Order at the date of claim.  The second question is whether the applicant had an income which did not exceed his applicable amount or had no income for the purposes of Article 5(1)(a) of the Order.

 

37.   As indicated above, by Schedule 1, paragraph 1(1) of the Order, “remunerative work” has the meaning prescribed by regulation 51(1) of the JSA Regulations.  “Remunerative work” means work for which payment is made or which is done in expectation of payment, in which a claimant is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week.

 

38.   In R(JSA)1/03, Commissioner Rowland considered the position of a self-employed claimant who provided rides in a pony-drawn carriage at a seaside resort between July and November each year, subject to obtaining a licence.  At paragraph 14, Commissioner Rowland held that such a person, on the basis that he was a seasonal worker, was to be regarded as engaged in work for which payment was made for the whole year.  The average weekly hours he worked were to be calculated over the whole year.  He reasoned that people may be engaged in work when not carrying out activities in connection with their employment in cases where periods of no work are ordinary incidents of their employment.  He said that that was particularly so in the case of self-employed earners.  In the case where the claimant is a seasonal worker, he said that there is likely to be a cycle of work consisting of a year.

 

39.   In R(JSA)1/07, Commissioner Howell considered the position of, among others, an unskilled worker in an amusement arcade which was open during the tourist season from March to October of each year.  The Secretary of State had argued that a recurrence of obtaining seasonal work each year meant that the claimants were in remunerative employment on a cycle of one year.  Commissioner Howell rejected this analysis.  He distinguished the case from the case of “a self-employed person who has established and not ceased to carry on a continuing business even though the actual activity it involves at different times of the year may be cyclical”, referring to R(JSA)1/03 (paragraph 26).

 

40.   In R(JSA)1/09, Judge Rowland further considered the case of a self-employed carpenter who experienced breaks in demand for his services of up to 12 weeks.  A tribunal had found him still to be in remunerative employment albeit experiencing a temporary cessation of work.  Judge Rowland suggested a framework of four questions which needed to be considered for determining the entitlement of a self-employed person to JSA, which I summarise below.

 

·              Is the claimant still “employed” as a self-employed earner – in other words is he still trading?

·              If yes, is the claimant “engaged in remunerative work or part-time employment”?

·              If yes, does the claimant work for fewer than 16 hours per week?

·              If yes, are there earnings to be taken into account?

 

41.   In his analysis Judge Rowland echoes the expressions referred to by Commissioner Howell and used by Lord Millett in Banks v Chief Adjudication Officer [2001] UKHL 33 about the difference between a person being in work and a person being at work.

 

42.   It seems to me that the GB Commissioners in the past have taken different approaches to the question of seasonal employment and seasonally-based self-employment.

 

43.   This particular case involves two men – the applicant and his helper – who are both present on the fishing boat while any work is done in expectation of payment.  Any additional work done by the applicant, in terms of the necessary paperwork in running the business or his maintenance of the boat and lines, is not work for which payment is made or which is done in expectation of payment for the purposes of regulation 51.  The only major difference between the two men is that one employs the other – giving one the status of employed and the other the status of self-employed.

 

44.   Following R(JSA)1/07, at the end of the fishing season the applicant’s helper could be entitled to JSA on the basis of not being in remunerative work.  Following R(JSA)1/09, the applicant himself could not be.  However, it is evident from regulation 51 that no distinction is made between employment and self-employment in the definition of remunerative work.  It was the view of the Inner House of the Court of Session, expressed by Lord Eassie at paragraph 20 of Saunderson that there is no textual warrant in the legislation for any distinction to be drawn between previously employed or self-employed claimants.

 

45.   The Court in Saunderson decided that obiter remarks of Commissioner Rowland in R(JSA)1/03 were “misplaced, or at least open to misunderstanding”.  The Court was critical of an approach which took the concept of “recognisable cycle of work” – which they reasoned was only relevant to the calculation of the average hours of someone who was in remunerative work – into account in determining the preliminary question of whether the claimant was actually in remunerative work.  The Court accepted at paragraph 20 that there may be many self-employed trading or professional activities in which it is not difficult to say that the professional or trading activity continues notwithstanding an idle period.  However, Lord Eassie expressed the view that “conversely, there will be seasonally pursued activities which, while treated in their exercise for contractual or fiscal reasons as “self-employed” activity, are in their substance little different from employment”.

 

46.   It appears to me that the applicant in the present case was in a very similar category to that envisaged by Lord Eassie in Saunderson when he said, at paragraph 20:

 

“Typically (but not exclusively), such quasi employed activities might be those in which the individual has no significant commercial capital invested and the temporal limit on his exercise of that technically self-employed activity is dictated by seasonal factors affecting demand for the person's services.  In that context, any distinction between self-employment and employment may be of little or no materiality when addressing the question whether the claimant is in work.  Thus the categorisation of a claimant's limited seasonal activity as being "self-employed" does not in itself detract from the need to reach a proper answer on the primary question whether, the seasonal activity having come to an end, the claimant may yet properly be said to be "in work".”

 

47.   I consider that the approach of the Inner House echoes the analysis of Commissioner Howell at paragraph 19 of R(JSA)1/07 and Lord Scott in his minority speech in Banks v Chief Adjudication Officer [2001] UKHL 33 at paragraph 108.  Banks was not directly addressed in Saunderson, but was referred to in R(JSA)1/07 which was before the Court.  For the Department, Mrs Rush submits that the Inner House in Saunderson has adopted an approach which is contrary to that adopted by the majority in the House of Lords in Banks.  Mrs Carty for the applicant submits that Banks – which would be a binding authority - can be distinguished, while Saunderson – a persuasive authority – should be followed.

 

48.   Banks was concerned with persons employed as term-time school assistants in an educational establishment.  Specific provision had been made for this group at regulation 51(3B) of the JSA Regulations.  The question in Banks was whether periods when they were not required to work should be disregarded in calculating the average number of hours they worked during a recognisable cycle.  Thus, Banks was principally concerned with the calculation of hours of person in remunerative work.  The parties in Banks had accepted that the claimants in the case had a recognisable cycle of work (see paragraph 7) and the issue of whether they were in “remunerative work” was not decided following argument.

 

49.   Banks also concerned the former regulation 51(3B) of the JSA Regulations.  This was subsequently held to be indirectly discriminatory against women contrary to EU Directive 79/7/EC, and of no legal effect (in R(JSA)4/03).  The provision in the JSA Regulations was then repealed, although it continues to exist in the IS Regulations, which were not subject to Directive 79/7/EC.

 

50.   Banks concerned employed persons in a particular category and the interpretation of a specific provision relating only to that group, whereas the present case concerns a self-employed claimant.  As such, it can be distinguished from the present case.  On the other hand, the facts in Saunderson are virtually on all fours with the present case and the remarks of Lord Eassie are entirely apposite to the situation of the present claimant.  I consider that I should follow the approach adopted by the Inner House in the persuasive authority of Saunderson, which in any event I agree with.  This would imply that the approach taken in GM v SSWP is wrong and that I should not follow it.

 

51.   I do not consider that the applicant should be deemed to be in remunerative work throughout periods of the year when he is clearly not engaged in the activity of eel fishing.  I find that the tribunal has erred in law by accepting that he was in remunerative employment.

 

52.   Nevertheless, as indicated above, the difference in the approach of the parties to the question of “remunerative work” does not affect the issue of entitlement under this strand.  The applicant submits that he was not in remunerative work, and I accept that on a correct analysis he was not.  As the Department found the applicant to be engaged in work for an average of fewer than 16 hours per week, the Department also accepts that he was not in remunerative work.  On this issue alone, therefore, no material error of law arises.  It is therefore necessary to address the tribunal’s approach to the issue of income.

 

53.   The second question is whether the applicant had an income which did not exceed his applicable amount for the purposes of Article 5(1)(a) of the Order, or had no income.

 

54.   As previously noted, regulation 95 of the JSA Regulations provides for calculation of the earnings of self-employed earners.  This provides that where a claimant’s income consists of earnings from employment as a self-employed earner the weekly amount of his earnings shall be determined by reference to his average weekly earnings from that employment—

 

“(a) over a period of one year, or

 

(b) where the claimant has recently become engaged in that employment or there has been a change which is likely to affect the normal pattern of business, over such other period as may, in any particular case, enable the weekly amount of his earnings to be determined more accurately.”

 

55.   For those purposes the claimant’s earnings are to be calculated in accordance with Chapter IV (self-employed earners) of Part VIII of the Regulations.

 

56.   As pointed out by Commissioner Williams at paragraph 16 of CJSA/1039/1999, while regulation 95(1)(a) imposes a period of one year for calculating earnings in most cases, regulation 95(1)(b) provides for two exceptions.  He considered that the general rule, which operates on the assumption that a self-employed person remains as such on a continuing basis, does not apply to the seasonally self-employed.  In that case, self-employment will have started and stopped at least once in one year and engagement in self-employment in a broad sense will always be recent.  Commissioner Williams further noted that regulation 101(11) of the JSA Regulations permitted the assessment of “any item of a claimant’s income or expenditure over a period other than that determined under regulation 95 such as may, in the particular case, enable the weekly amount of that item of income or expenditure to be determined more accurately”.

 

57.   I agree with Commissioner Williams that a seasonally self-employed person cannot be equated to someone who is self-employed year round.  In particular, I observe that the definition in regulation 1(2) of the JSA Regulations of a “self-employed earner” is “a person who is gainfully employed in Northern Ireland or the Republic of Ireland otherwise than in employed earner's employment.  It seems to me that for certain periods of the year, the applicant was not gainfully employed and therefore not a self-employed earner.  If claiming JSA during those periods, I consider that the applicant did not therefore have income as a self-employed earner and that for the purposes of regulation 95 had no income.  It would only be where he claimed benefit during a period when he was gainfully employed that his earnings would fall to be calculated in accordance with regulation 95.

 

58.   I accept that the facts of the present case are that the applicant was unable to pursue self-employment as an eel fisherman, between 8 January and 1 May of each year, due to legislation governing the duration of the eel fishery season.  Therefore the period of economic activity lawfully open to the applicant excluded most of January, and all of February, March and April of each year.  I conclude that he was not gainfully employed during those periods and had no income.

 

59.   In addition, I accept the applicant’s evidence that it was not economical for him to fish in October, November, December and the first week of January of each year and that he did not do so.  It was, however, open to the applicant to fish at that time.

 

60.   Although they are separate conditions of entitlement to JSA, it seems to me that there must logically be a connection between the concepts of being in remunerative work and being gainfully employed.  By regulation 52 of the JSA Regulations, except in the case of a person on maternity leave, paternity leave, adoption leave or absent from work through illness, a person shall be treated as engaged in remunerative work during any period for which he is absent from work referred to in regulation 51(1) (remunerative work) where the absence is either without good cause or by reason of a recognised, customary or other holiday.  This provision might well “bite” against a person who, say, takes a prolonged sabbatical from a busy enterprise where his workload is steady.  However, a fisherman is affected by government regulation, environmental conditions and the level of eel stocks in any given year.  It seems to me that “good cause” under regulation 52 would be established where a self-employed fisherman desists from fishing in what must be fairly miserable conditions during the cold and dark winter months where it is not economically rational for him to do so. In such circumstances, where he desists from going out on his boat, he has no income.  I would similarly hold that the applicant was not gainfully employed during such periods and that his income was nil.

 

61.   However, the particular circumstances of this claim were not those outlined in the above paragraphs.  The applicant claimed during a period when he would normally be fishing.  Although it was not mentioned in his claim form, on the basis of his oral evidence I accept that in early August 2011 the gearbox on the applicant’s boat ceased to function, and that this unexpected occurrence ended his fishing activity for the particular year of claim.  I accept that he could not resume fishing that season, as he could not afford a new replacement part, and required to source a suitable second-hand gearbox.

 

62.   What then are the implications of the fact that the applicant claimed JSA due to the unexpected occurrence of his boat’s gearbox failing, rather than the season ending or having good cause to remain ashore due to the scarcity of fish?

 

63.   Due to the nature of the applicant’s self-employment, I see little distinction from the other scenarios discussed.  Once his boat was disabled due to the gearbox failure, the applicant was no longer able to fish and to land his catch with the Fisherman’s Co-operative Society for payment.  His period of self-employment had ceased for the year.  He was not gainfully employed in the sense of regulation 1(2) of the JSA Regulations.  He had no income.

 

64.   Additionally, by paragraph 4 of Schedule 5 to the JSA Regulations, in the case of a claimant who has been engaged in remunerative work as a self-employed earner and who has ceased to be so employed, any earnings from that self-employment falls to be disregarded from and including the date of the cessation.  I see no particular reason why that particular paragraph cannot further be relied upon by a claimant in the position of the applicant.  It has been argued that “ceased” implied permanent cessation, whereas the applicant here indicated that he intended to resume self-employment on 1 May 2012.  However, just as ceasing employment does not indicate an intention to permanently retire from employment, but merely an end to a particular job, it is possible to cease self-employment with an intention of resumption at a later date.

 

65.   It seems to me that the applicant was therefore not gainfully employed and was not a self-employed earner when he claimed JSA in September 2010.  For the same reasons as given in relation to the seasonal cessation of self-employment above, I consider that he had no income from earnings as a self-employed earner at this period, and that his income should have been calculated as nil.

 

         Conclusions

 

66.   The applicant’s case was not fully aired before the tribunal and therefore I can attach little fault to it for the approach taken.  However, it has based its decision on a finding that the applicant had an income in excess of his applicable amount.  This was based on the premise that because the applicant had been self-employed for the months from May to August, his income should be attributed over a 12 month period.  While that is a correct conclusion where a claimant is gainfully employed over those 12 months, I do not consider that the earnings of a seasonally self-employed person can be treated in this way.  I conclude that the applicant was not gainfully employed when he made his claim, that regulation 95 did not apply to his circumstances, and that his income at that time should properly have been assessed as nil.  I consider that the tribunal has erred in law by finding otherwise.

 

67.   Therefore, I set aside the decision of the appeal tribunal.

 

68.   I consider that it is expedient to give the decision which the tribunal should have given.  I consider that, in addition to satisfying the conditions of entitlement to JSA which were not in dispute, the applicant was not in remunerative work and that the applicant had no income at his date of claim.  I allow the applicant’s appeal and find that he was entitled to JSA from and including 9 September 2011.

 

 

(signed):  O Stockman

 

Commissioner

 

 

 

23 July 2013