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Neutral Citation Number: 2010 UKUT 218 AAC
Reported Number:
File Number: CG 2659 2009
Appellant: KJ
Respondent: Secretary of State for Work and Pensions
Judge/Commissioner: Judge M. Rowland
Date Of Decision: 29/06/2010
Date Added: 03/08/2010
Main Category: Earnings and other income
Main Subcategory: Calculation: employed
Secondary Category:
Secondary Subcategory:
Notes: Reported as [2011] AACR 7. Computation of earnings – salaried employee becoming part-time – whether payment in respect of month of transition to be treated as two separate payments The claimant was in full-time salaried employment and was paid in respect of each calendar month on the last banking day of that month. His mother was seriously ill and he arranged to work part-time with earnings just under £95 per week from Monday 3 March 2008 so as to be able to care for her. He claimed carer’s allowance in advance of that date. Under section 70 of the Social Security Contributions and Benefits Act 1992, a person could be entitled to carer’s allowance if not gainfully employed and entitlement could continue for eight weeks after the death of the person being cared for. Regulation 8(1) of the Social Security (Invalid Care Allowance) Regulations 1976 provided that a person should be treated as gainfully employed on every day in a benefit week (starting on a Monday) if his earnings in the immediately preceding week exceeded £95. The claimant’s payslip for March 2008 showed that he was paid his full salary for the first two days of the month with the result that his earnings averaged over the month exceeded £95 per week and the decision-maker therefore disallowed his claim. In May the claimant was awarded benefit from Monday 5 May 2008 on the basis of his April payslip, but his mother had died on 4 May 2008, and the award was revised and it was decided that he was not entitled to carer’s allowance at all. He appealed. The First-tier Tribunal initially decided that the claimant was entitled to carer’s allowance from 30 April 2008 to 1 June 2008 and, subject to confirmation of his earnings in May 2008, also from 2 June 2008 to 29 June 2008 but the Secretary of State sought permission to appeal and a district tribunal judge set the decision aside and referred the case to the Upper Tribunal under section 9(5)(b) of the Tribunals, Courts and Enforcement Act 2007. The claimant argued that, as his contract of employment referred to weekly hours of work, the payments made in his case should be treated as each being a number of payments made in respect of single weeks, as in CG/607/2008, and carer’s allowance should therefore have been awarded from 14 April to 29 June. Held, dismissing the appeal: 1. the Social Security Benefit (Computation of Earnings) Regulations 1996 had the effect that, if paid in respect of a month, the salary payment received by the claimant on Monday 31 March 2008 was to be treated as earnings from that date until 27 April, and regulation 8(1) of the 1976 Regulations had the effect that the earnings taken into account in each of those four weeks affected entitlement to a carer’s allowance in each of the following weeks, so that the payment affected the claimant’s entitlement to carer’s allowance right up to the date his mother died on 4 May 2008 (paragraphs 13 and 14); 2. the present case was distinguishable from CG/607/2008 because in that case the payments made each month were calculated on the basis of the number of hours worked in that month whereas here the claimant was salaried so that treating the payments as monthly payments under the 1996 Regulations worked perfectly satisfactorily except, arguably, in March 2008 (paragraphs 15 and 16); 3. the March 2008 payment could not be treated as two payments, one for two days and the other for 29 days, because monthly payments should not too readily be treated as composed of, or including, payments for shorter periods and the fact that regulation 8(3) of the Computation Regulations allowed flexibility in cases of fluctuating earnings only if the amount “has changed more than once” was a clear indication that an anomaly due to a single variation was regarded as tolerable and was to be disregarded in the interests of administrative convenience (paragraphs 17 to 21).
Decision(s) to Download: [2011] AACR 7 ws.doc [2011] AACR 7 ws.doc