CG 11 1994
| Jurisdiction | UK Non-devolved |
| Judge | Mr M. J. Goodman |
| Judgment Date | 01 May 1995 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CG 11 1994 |
| Subject Matter | Other current benefits |
R(G) 2/95
Mr. M. J. Goodman CG/11/1994
1.5.95
Invalid care allowance - claimant receiving sick pay whilst absent from work due to sickness - whether “gainfully employed”
The claimant was absent from her employment due to illness. At first she was paid full salary (including statutory sick pay) which was later reduced to half salary. Throughout the period that she was paid by her employer, her net pay exceeded £50.00 per week. Her claim for invalid care allowance was refused by the adjudication officer on the ground that she was gainfully employed within the meaning of regulation 8(1) of the Social Security (Invalid Care Allowance) Regulations 1976. On appeal, a social security appeal tribunal upheld the adjudication officer’s decision
Held that
under regulation 8(2)(b) of the 1976 regulations a person’s earnings are disregarded for the purposes of regulation 8(1) in any week in which he is absent from his employer’s with the authority of his employer. Where an employee is absent due to illness the employer has to authorise the absence. Thus in such a case he is “absent with the authority of his employer”. The result was that any sick pay (statutory or contractual) paid to the claimant was to be disregarded is deciding whether her earnings were less than £50.00 per week and she was not to be treated as gainfully employed under regulation 8(1)
[Note: As from 12 December 1995 regulation 8 has been amended by regulation 2 of the Social Security (Invalid Care Allowance) Amendment Regulation 1995 (SI 1995 No. 2935) (regulation 3 has a saving provision)].
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. I allow the claimant’s appeal from the decision of the SSAT dated
30 November 1993 as that decision is erroneous in law and I set it aside. My decision is that the claimant is not disentitled to invalid care allowance from and including
30 November 1992 by absence from her employment because in the week including that date and in subsequent weeks the claimant was throughout absent from her employment with the authority of her employer. Social Security Contributions and Benefits Act 1992, section 70(1)(b); Social Security Administration Act 1992, section 23; Social Security (Invalid Care Allowance) Regulations 1976, SI 1976 No. 409 (as amended), regulation 4(2)(b).
2. This is an appeal to the Commissioner by the claimant, a married woman born on 29 May 1942. The appeal is against the majority decision of a SSAT dated 30 November 1993, which dismissed the claimant’s appeal against the decision of the AO issued on 14 June 1993 in the following terms:
“[The claimant] is not entitled to invalid care allowance from and including 18 November 1992. This is because she is gainfully employed and cannot be treated as not gainfully employed. For this purpose sickness payment from the employer counts as earnings … Social Security Contributions and Benefits Act 1992, sections 4(1)(a)(i) and 70(1)(b) and the Social Security (Invalid Care Allowance) Regulations [1976], regulation 8.”
3. The appeal was the subject of an oral hearing before me on 1 November 1994 at which the claimant was not present but was represented by Mr. J. Collins of the Claimants Welfare Advisory Association. The AO was represented by Mr. L. Varley of the Office of the Solicitor to the Departments of Health and Social Security. I am indebted to Mr. Collies and to Mr. Varley for their assistance to me at the hearing.
4. The question at issue is this case is purely a question of law. It depends on the construction of regulation 8(2)(b) of the Social Security (Invalid Care Allowance) Regulations 1976, SI 1976 No. 409. Regulation 8 specifies the “circumstances in which a person is or is not to be treated as gainfully employed” within the meaning of...
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