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Neutral Citation Number: 2008 40
Reported Number: R(JSA)1/09
File Number: CJSA 4053 2007
Appellant: JC
Respondent: Secretary of State for Work and Pensions
Judge/Commissioner: Judge M. Rowland
Date Of Decision: 30/12/2008
Date Added: 14/01/2009
Main Category: Remunerative work
Main Subcategory: other
Secondary Category:
Secondary Subcategory:
Notes: Remunerative work – self-employed claimant having had a long period without work – whether engaged in remunerative work The claimant was a self-employed carpenter. He had a period of entitlement to jobseeker’s allowance and then he worked from 1 May 2007 to 8 May 2007. He claimed jobseeker’s allowance again on 9 July 2007. His claim was disallowed on the ground that he was in remunerative work and therefore not entitled by virtue of section 1(2)(e) of the Jobseekers Act 1995. He replied “12 weeks” to the question “How long are breaks between contracts or jobs normally?” His claim was accepted from 1 August 2007, by which time 12 weeks had elapsed since he had last worked. He appealed against the disallowance of his claim from 9 July 2007 but the tribunal dismissed his appeal. On the claimant’s further appeal the Secretary of State relied heavily on CIS/166/1994, where it was held that, under the equivalent provisions relating to income support, earnings from employment as a self-employed earner are to be taken into account for as long as the claimant remains in “gainful employment”. Held, allowing the appeal, that: 1. paragraph 4 of Schedule 6 to the Jobseeker’s Allowance Regulations 1996 uses two distinct concepts: being “engaged in remunerative work or part-time employment” and being “employed” and it would be less confusing to use the simple word “employed” that appears in that paragraph rather than the phrase “gainfully employed” favoured in CIS/166/1994 (paragraphs 7 and 8); 2. the nine issues accepted in CIS/166/1994 (and set out in R(JSA) 1/03) as relevant to the question of whether a person is “gainfully employed” are mainly relevant to the question of whether a person is “engaged in remunerative work or part-time employment” and not to the question of whether a person is “employed” (paragraph 9); 3. where a person who has been self-employed claims jobseeker’s allowance, the first question that must be determined is whether he or she is still “employed” as a self-employed earner, that is whether or not he or she is still trading, and if the answer to that question is “yes”, the second question is whether, in the particular week(s) in issue, the claimant is “engaged in remunerative work or part-time employment”, that is whether the claimant is carrying out any activities connected with the self-employment in the relevant week(s) or whether by virtue of regulation 52 of the 1996 Regulations he or she is to be “treated” as engaged in work during periods of no activity that are a normal incident of self-employment, whether as part of a cycle or otherwise (paragraphs 11 and 12); 4. if the claimant is “engaged in remunerative work or part-time employment”, the third question is whether he or she is engaged in “remunerative work” and therefore not entitled to jobseeker’s allowance or merely “part-time employment”, the difference being whether or not the claimant works for at least 16 hours per week, calculated by taking the average over the period prescribed by regulation 51(2)(b)(ii) of the 1996 Regulations (paragraphs 14 and 15); 5. if the claimant is in “part-time employment”, it will be necessary to consider whether any earnings fall to be taken into account by applying regulation 95(1) of the 1996 Regulations to determine the period over which the earnings should be averaged, and, while findings of fact relevant to the operation of regulation 51(2)(b)(ii) may also be relevant to the operation of regulation 95(1)(b), they will not necessarily have an impact from the same date because what is relevant is the income being received rather than the income being generated by current employment (paragraph16); 6. in this case the evidence gathered by the Secretary of State demanded that further enquiry be made about the claimant’s pattern of work and earnings before 1 May 2007 for the purpose of deciding over what period to calculate the average number of hours for which he worked, and if he was not engaged in remunerative work, whether there were any earnings to be taken into account, which would involve deciding over what period to calculate earnings (paragraphs 21 and 22). The Judge referred the case to another tribunal but with a direction to the Secretary of State to consider the case further and either to revise his original decision or else to make a new submission to the tribunal.
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