Chief Adjudication Officer v Brunt
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE KERR,SIR GEORGE WALLER |
| Judgment Date | 29 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0729-5 |
| Docket Number | 87/0810 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1987 |
[1987] EWCA Civ J0729-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Ralph Gibson
and
Sir George Waller
87/0810
and
MR. DAVID LATHAM Q.C. and MR. RICHARD DRABBLE (instructed by The Solicitor to the Department of Health and Social Security, London EC4A 3AD) appeared on behalf of the Appellant.
MR. FREDERIC REYNOLD Q.C. and MR. MARK ROWLAND (instructed by Messrs. Rowley Ashworth, Solicitors, London SW9 4XD agents for Messrs. Rowley Ashworth, Solicitors, Exeter, Devon EX4 4JF) appeared on behalf of the Respondents.
This is an appeal by the Chief Adjudication Officer under section l4. of the Social Security Act 1980 with the leave of the Tribunal of Commissioners against the decision of that tribunal given on 4th February 1987. Such an appeal is on a question of law only. The decision was to the effect that Mr. Vincent Anthony Brunt was not precluded from receiving unemployment benefit over the period 20th January to 23rd April 1984. The appeal turns upon the construction of Regulation 7 (1) (e) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 ( Statutory Instrument 1983 No. 1538) and the application of those provisions to the part-time employment which Mr. Brunt had obtained under a Community Programme scheme.
The Facts and the Proceedings
Mr. Brunt is now aged 26 years. He left school in 1976 and was employed in a car components company for 19 months. He then served in the Army for 5 months. Next he worked for a carpet firm for one year and after that as a miner for two years. He was then out of work from 4th January 1982 until 25th October 1983 when he started work under a community programme scheme for two and a half days a week, on Wednesday, Thursday and Friday in each week.
Mr. Brunt had received unemployment benefit from January 1982 for the full period of his entitlement, namely the one year or 312 working days as provided by section 18 of the Social Security Act 1975 ("the 1975 Act"). He requalified to receive unemployment benefit after being in employment in his part-time work over 13 weeks since he was in each week working for the necessary number of hours, namely 16 hours per week: section 18 (2) of the 1975 Act. He was earning at first £41 per week and later £44 per week. The rate of unemployment benefit had been £30.80 per week.
When he had requalified Mr. Brunt applied for unemployment benefit in respect of the days on which he was not working. The insurance officer on 10th February 1984 rejected his application on the ground that Regulation 7 (1) (e) and (2) applied, that is to say that Mr. Brunt was regularly working the same number of days in the week for one employer and he was "employed to the full extent normal in his case".
Mr. Brunt appealed to the local tribunal and on 16th April 1984 the tribunal upheld the decision of the insurance officer. With the advice and assistance of his Union, the General Municipal Boilermakers and Allied Trades Union, Mr. Brunt sought to appeal to the Commissioner; leave was refused by the local tribunal but granted by the Commissioner on 10th August 1984.
The decision of the Tribunal of Commissioners was not given until 4th February 1987. There was thus a delay of three years between the rejection of Mr. Brunt's claim to benefit and the ruling of the Commissioners that he was entitled to benefit on the days in question. Such delay in dealing with a claim to benefit is, as it seems to me, unacceptable; and, I am sure, is so regarded by the Chief Adjudication Officer and by the Commissioners. The explanation for much of that delay is to be found in the fact that the working of the "full extent normal" rule in Regulation 7 (1) (e) has caused much difficulty and uncertainty in its application to claimants who, after periods of full-time work and of total unemployment, get a part-time job which provides them with work on only two or three days in the week. The decision by the Commissioner upon Mr. Brunt's case was postponed on three occasions, namely in May 1985, in July 1985 and in January 1986, in order to enable the parties, at the invitation of Mr. Commissioner Goodman, to make further submissions by reference to new decisions upon the rule by other Commissioners and by reference to the unreported decision of this court of 25th July 1985 in Riley v. Adjudication Officer. The Manpower Services Commission "Community Programme".
The number of men and women who were able to get part-time work, after periods of total unemployment, was increased by the introduction of "Community Programmes" and similar schemes under powers given by the Employment and Training Act 1973. By that Act the Manpower Services Commission was established. One of its functions is to make arrangements for assisting persons to obtain and retain employment. The funds of the Commission are provided by the Secretary of State out of money provided by Parliament. The Community Programme under which Mr. Brunt obtained employment on three days a week in October 1983 is described as follows in the handbook published in December 1982 for the guidance of sponsors under the Scheme:
"1. The Community Programme, which is the successor to the Community Enterprize Programme, is administered by the Manpower Services Commission on behalf of the Secretary of State for Employment to help long-term unemployed adults improve their prospects of obtaining permanent jobs by providing them with temporary employment, either full-time or part-time, on projects of benefit to the community….
3 (i) Individual employees may not be employed under the Programme for more than 52 weeks…..
M.S.C. Financial Assistance
46 (b) Other workers—the costs of wages for workers up to a maximum of £60 per week for each full or part-time worker on a project, plus employers' National Insurance Contributions.
By supplement 2: 15: at the time of recruitment men and women selected for employment must have been unemployed for at least the preceding two months and in the case of those aged 18—24 years, have been unemployed for over six months during the last nine months, and in the case of those aged 25 years or over have been unemployed for at least 12 months during the last 15 months."
The sort of information provided to persons recruited to a Community Programme job appears from the leaflet reproduced at page 66 of the bundle. In addition to describing the Programme and its purpose the leaflet explains that
"being on the Community Programme should improve your chances of finding permanent work. So if you are offered a permanent job then of course you are free to move to it straight away. That way we can help someone else. Ask your employer about time off to go to interviews."
The Decision of the Commissioners.
Because of the importance and difficulty of the issues raised the appeal of Mr. Brunt was referred by direction of the Chief Commissioner to a Tribunal of three Commissioners. The unanimous decision of the Tribunal was delivered on 4th February 1987. Mr. Brunt's appeal was allowed. The ruling was that Mr. Brunt was not precluded from title to unemployment benefit from 30th January 1981 to 23rd April 1984. Mr. Commissioner J.G. Monroe and Mr. Commissioner Goodman joined in stating their reasons in paragraphs 2 to 15. Mr. Commissioner Reith QC stated his reasons in paragraphs 16 to 21. In summary, the reasons of the majority, after statement of the facts as set out above, were as follows: (i) The contract of employment of Mr. Brunt on the Community Programme, as was apparent from the handbook and leaflet, was for a maximum of 52 weeks; the terms of the scheme made it clear that the work was entirely a temporary expedient; and Mr. Brunt's personal contract was on the evidence for six months only. (ii) After reference to the decision of a Tribunal of Commissioners in 1985 in the case CU/255/1984, and to the judgment of Lord Justice Slade in Riley's case, they held (paragraph 15) that "a person employed for a fixed temporary period with no intention that employment should continue there- after is not, by reason only of such employment, to be regarded as employed to the full extent normal in his case".
The two Commissioners expressed their view of the rule contained in Regulation 7 (1) (e). They said that the "full extent normal" rule had originated in decisions of the Umpire under the Unemployment Insurance Acts because it was considered that a man who worked say for eleven hours per day on four days per week was not really unemployed at all. With the coming of the National Insurance Act 1946 an attempt was made to codify the rule. Commissioners had on occasion been forced to conclusions (sometimes in relation to persons employed for only a day or even an hour or two a week) that could not conceivably have been reached by the interpretation of the word "unemployed". Further they said that the prevailing doubts about the extent of the rule and the parallel "normal idle day" rule have harmful effects. It was their belief that many people who genuinely desire full-time employment and are genuinely available for it hesitate to take up part-time employment in the meanwhile because of the risk that one of these rules may, rightly or wrongly, be applied to them. They suggested that urgent consideration should be given to the extension of the exception in Regulation 7 (2) of the 1983 Regulations and the corresponding...
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Chief Adjudication Officer v Brunt
...programme scheme because it was a fixed temporary period. I agree with Ralph Gibson L.J. who in giving judgment in the present case, [1987] 3 W.L.R. 1200 summarised the position as follows at p. 1219: "There had been full employment before 4 January 1982 but unbroken unemployment for one y......
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Elizabeth Whellans (Appellant (Claimant) The Chief Adjudication Officer (Respondent (Respondent) Kenneth Worthy (Appellant (Claimant) The Chief Adjudication Officer (Respondent (Respondent)
... ... In this opinion I think she erred in law." ... 18 That was followed in Chief Adjudication Officer v. Brunt [1988] A.C.711 in which the applicant had succeeded before the commissioner and which was an appeal by the Chief Adjudication Officer to this court, which succeeded in this court ... 19 Ralph Gibson L.J., giving the first judgment, interpreted what Slade L.J. had said in ... ...