CFC 11 1989
| Jurisdiction | UK Non-devolved |
| Judge | Mr M. J. Goodman |
| Judgment Date | 18 January 1990 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CFC 11 1989 |
| Subject Matter | Commissioners' procedure and practice |
18.1.90 R(FC) 2/90
FAMILY CREDIT
Family Credit – “remunerative work” – Salvation Army Officers
Commissioners – no power to make order for costs or expenses
The claimant and her husband were both officers of the Salvation Army for whom they worked for 40 hours a week. They were provided with free accommodation and living allowances. On a review of the decision awarding family credit the adjudication officer decided that the weekly income of both the claimant and her partner should include an amount of £12 in respect of their free accommodation. The claimant was therefore not entitled to family credit. The tribunal in allowing her appeal decided that Regulation 19(3) of the Family Credit (General) Regulations 1987 did not require £12 to be taken into account in respect of both of them and awarded family credit of £7.98 per week from 7.6.88. the adjudication officer appealed to the Commissioner initially in relation to the operation of Regulation 19(3) but, in response to the claimant’s observations, substituted as the leading grounds of appeal the issue of engagement and normal engagement in remunerative work. At the hearing of the appeal, Counsel for the claimant requested the Commissioner to make an order that the legal costs of the claimant be reimbursed by the Secretary of State on the grounds that the case concerned a matter of pubic importance
Held that
a. First decision
1. Section 93 of the Social Security Act 1975 does not apply for family credit purposes in determining whether a person is an employed earner or self-employed earner within the meaning of Section 2 of the Social Security Act 1975; it is for the Statutory Authorities including the Commissioner to determine such questions (paragraph 15)
2. a Commissioner is not bound by an administrative recognition by the Secretary of State of a person as being an employed earner (paragraph 16);
3. despite the special relationship between the Salvation Army and its officers, the claimant and her husband were “engaged in remunerative work”. Remuneration was paid by the Salvation Army to its officers for the substantial work they did and the payments were not just a maintenance grant (paragraph 17);
4. the test of whether work is remunerative work, namely whether it is “work for which payment is made or which is done in expectation of payment” (Regulation 4(1) of the 1987 Regulations), does not mean the same as “entitlement” to payment (paragraph 18);
5. where a married couple are living in one house only, which is provided free of charge, it cannot be correct to ascribe to them under Regulation 19(3) an income which would normally be attributable to them only if they had 2 separate houses. The context requires that the wider meaning of “claimant” normally required under Regulation 10(1) should not apply (paragraph 27).
b. Supplemental decision
1. the Social Security Commissioner has on power, statutory or otherwise, to make an order that one party should reimburse another party for the costs and expenses, legal or otherwise incurred in the making of or being respondent to, an appeal to the Commissioner (paragraph 4);
2. there can be no reasonable implication as part of the Commissioner’s statutory powers that he should compensate one party in favour of the other by an award of costs (paragraph 20).
1. I dismiss the adjudication officer’s appeal against the decision of the social security appeal tribunal dated 4 April 1989 as that decision is not erroneous in law: Social Security Act 1975, section 101 (as amended).
2. This is an appeal by the adjudication officer against the decision of a social security appeal tribunal dated 4 April 1989 which allowed the appeal of the claimant (a married woman aged 39, living with her husband aged 42 and their two children aged 10 and 7 years respectively). Both the claimant and her husband are full-time Salvation Army Officers. The appeal is against the decision of a local adjudication office issued on 28 September 1988. That officer’s decision on review held that the claimant was not entitled to family credit for the period from and including 7 June 1988 because her income was not equal to or less than the amount of family credit appropriate to the family. Effectively that is because, in ascertaining the claimant’s income, the local adjudication officer applied twice over regulation 19(3) of the Family Credit (General) Regulations 1987 (S.I. 1987 No. 1973 – cited below), by attributing the “notional” sum of £12 per week for living accommodation provided free to the claimant by reason of her “employment” by the Salvation Army, once in relation to herself and once in relation to her husband, deeming therefore the family to have a “notional” income, not of £12 per week but of £24 per week. I deal in detail with that issue below. On the appeal of the adjudication officer against the decision of the social security appeal tribunal, which held that only one sum of £12 per week should be treated as income in relation to the free accommodation, the adjudication officer has raised a more fundamental point relating to the nature of payments to their officers by the Salvation Army (see below).
3. The appeal was the subject of an oral hearing before me on 4 January 1990 at which the claimant and her husband were present, together with Captain P. Smith, the Legal Officer of the Salvation Army. They were represented by Mr A. Wilkie of Counsel. The adjudication officer was represented by Mr M. Parke of the Office of the Solicitor to the Departments of Health and Social Security. The Secretary of State, who took part in the proceedings before the Commissioner, was represented by Mr A. Popperwell of Counsel. I am indebted to all those persons for their assistance in this particular appeal and at the hearing of it.
4. It is convenient to take first the more fundamental issue to which I refer above and which was taken by the adjudication officer, not on his original appeal but at a later stage during the appeal. It was agreed on all sides that the adjudication officer’s having done this was a proper course of action and that no element of surprise or prejudice had been caused to the claimant. The claimant has however asked me to consider the making of an order for costs against the Secretary of State on the ground that this case concerns a matter of public importance. I shall however deal with this matter in a separate and distinct decision and I say no more about it here. My separate decision will deal with the question whether a Commissioner has any inherent power to make an order that one party should pay another party’s costs or expenses, the claimant contending that there is such a power.
5. The more fundamental issue to which I allude was first raised in a written submission dated 21 September 1989 by the adjudication officer. It relates to the decision of the Court of Appeal in Rogers v. Booth [1937] 2 All E.R. 751 (concerning the non-contractual relationship of Officers of the Salvation Army to the Army) and to the provision of section 20(5)(b) of the Social Security Act 1986 that it is a pre-condition of entitlement to family credit that the claimant or his/her partner shall be “engaged and normally engaged in remunerative work”.
6. Section 20(12)(c) of the Social Security Act 1986 enables the making of regulations “as to what is or is not to be treated as remunerative work or as employment”. In pursuance of that power, regulation 4 of the Family Credit (General) Regulations 1987 (S.I. 1987 No. 1973), hereinafter referred to as “the 1987 Regulations” provides, so far as is relevant, as follows,
“Remunerative work
(1) Subject to the following provisions of this regulation, for the purposes of section 20(5)(b) of the Act (Conditions of Entitlement to Family Credit) and these Regulations, remunerative work is work in which a person is engaged, or where his hours of work fluctuate, is engaged on average, for not less than 24 hours a week, being work for which payment is made or which is done in expectation of payment.
(2) [Relates to calculation of number of hours worked – not in issue in this case].
(3) A person shall be treated as engaged in work during any period during which he is absent from work if the absence is by reason of a recognised, customary or other holiday”. (My emphasis).
7. I must now deal with the Court of Appeal’s decision in Rogers v. Booth [1937] 2 All E.R. 751 (see above). The headnote to the report of that case reads as follows,
“The Appellant, who was an officer in the Salvation Army, when working at the Army’s hall fell over a bucket, and sustained injuries. She claimed compensation under the Workmen’s Compensation Act:-
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