Elizabeth Whellans (Appellant (Claimant) The Chief Adjudication Officer (Respondent (Respondent) Kenneth Worthy (Appellant (Claimant) The Chief Adjudication Officer (Respondent (Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE GLIDEWELL,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 07 December 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1207-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/1056 |
| Date | 07 December 1988 |
[1988] EWCA Civ J1207-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice
Lord Justice May
Lord Justice Croom-Johnson
and
Lord Justice Glidewell
88/1056
MR. MARK ROWLAND (instructed by the Child Poverty Action Group) appeared on behalf of the Appellants/Claimants.
MR. DUNCAN OUSELEY (instructed by the Solicitor to the Department of Health and Social Security) appeared on behalf of the Respondent/Respondent.
I will ask Lord Justice Glidewell to give the first judgment.
These are two appeals from decisions of a Social Security Commissioner, Mr. V.G.H. Hallett, both given on 4th August 1987 after hearing the appeals together some weeks previously. Both appeals raise the same issue which is why both he and this court have heard the respective appeals together.
The issue arises under regulation 7(1)(e) of the Social Security Unemployment, Sickness and Invalidity Benefit Regulations 1983, which contain what is known as the "full extent normal" rule, that is, the rule that a day is not a day of unemployment if the claimant does not work on that day, but does not ordinarily work on every day of the week and in the week to which the claim relates is employed to the full extent that is normal in his or her case.
The Commissioner expressed the issue succinctly in the following words:
"Does part-time work carried out entirely outside the claimant's normal working life, so that she was able to do it without disturbing her pattern of full-time work in any way, operate in circumstances such as these to bring the full extent normal rule into play if the claimant loses her full-time job? This is quite a different situation from the usual case where a claimant loses full-time employment and takes part-time employment which fills some, but not all, of the working time occupied by the full-time job."
The facts in both cases are not in dispute. Those relating to Mrs. Whellans can be summarised as follows. She was employed as a despatch clerk from November 1980 to June 1981 and then as a sales co-ordinator from March 1982 to September 1983. In the meantime she commenced part-time employment as a youth leader in October 1982, initially working on Thursday evenings in that job. In October 1983 (after the sales co-ordinator job finished) she made a claim for unemployment benefit and that was disallowed. Her original work as a youth leader was with the YMCA, but she finished working with them in July 1984 and immediately started part-time employment as a youth leader for the Borough of Sunderland. She also obtained temporary full-time employment from 18th July 1984 to 7th September 1984 and when that finished, on 25th September 1984 she claimed unemployment benefit from that date. That was refused, the refusal being based upon her part-time employment as a youth leader with the Borough of Sunderland and her appeals to the appeal tribunal and to the commissioner were both dismissed.
In Mr. Worthy's case he was employed full time by a firm named Ccwie (Fire Safety and Security) from January 1983 until 8th June 1984. He worked full time from approximately 1956 to 1981. He was unemployed for just over a year and then he got the job to which I have just referred. In the interim between the job which finished in 1981 and the employment with Cowie he had an appointment on a community programme, which finished when he went to Cowie. When the job with Cowie finished, he claimed unemployment benefit and in his claim he disclosed that he was working part time as a youth and community leader on Tuesdays and Wednesdays from 7 until 10 in the evenings. He had been employed in that position for some 15 years, that is to say from 1969. Initially he was paid unemployment benefit for the days on which he did not work, that is to say for four days a week, and that went on until January 1985, but in that month the adjudication officer decided that he was not entitled to unemployment benefit. That is the decision which led to his appeal to the appeal tribunal and then to the commissioner, both of which were unsuccessful.
I should say, though nothing turns on this so far as we are concerned, that in both cases the Commissioner held that the Tribunal's decision was defective because neither decision, according to him, set out the facts in sufficient detail. Nevertheless he was able to determine the facts and it is from what he has set out that I have based my account of them.
The relevant law starts with the Social Security Act 1975. Section 14(1)(a) provides:
"Subject to the provisions of this section, a person who satisfies any of the three conditions of subsection (2) below shall be entitled—
(a) to unemployment benefit in respect of any day of unemployment which forms part of a period of interruption of employment;"
On the face of it the conditions in subsection (2) were satisfied in these cases.
Section 17(1) of the 1975 Act claims limitations on the days for which unemployment can be claimed, none of which apply in the present cases. However section 17(2) gives to the Secretary of State power to make regulations which "may—(a) make provision (subject to subsection (1) above) as to the days which are or are not to be treated for the purposes of unemployment benefit,…..as days of unemployment or of incapacity for work;". It was under that power that there were made the 1983 regulations to which I have already referred.
Regulation 7(1)(e), which is the ground on which this appeal has been brought, provides—
"For the purposes of unemployment…benefit—
(e) subject to paragraph (2), a day shall not be treated as a day of unemployment if on that day a person does no work and is a person who does not ordinarily work on every day in a week (exclusive of Sunday or the day substituted for it by regulation 4) but who is, in the week in which the said day occurs, employed to the full extent normal in his case….".
Regulation 7(2) provides:
"Paragraph (l)(e) shall not apply to a person unless there is a recognised or customary working week in connection with his employment, or he regularly works for the same number of days of the week for the same employer or group of employers."
There is no doubt that both Mrs. Whellans and Mr. Worthy at the relevant time regularly worked for two evenings a week for the same employer. The related questions thus are, at the time when they made the claims which have led to these appeals, were they persons who did not ordinarily work on every day of the week and were they in the weeks to which their claims related employed to the full extent normal in her or his case?
It is obvious that in deciding whether a person does not ordinarily work on each working day in the week and whether he or she is employed to the full extent normal in his or her case, it is necessary to consider not merely the week in question but the history of the past employment of the claimant and the likely future pattern of his or her employment. As to the past, commissioners have evolved a number of general guidelines. One of these is what is called the "one year before" test, which was explained by a commissioner in a decision to which Slade L.J., in an appeal to this court to which I shall refer in a moment, referred in the following words:
"A claimant who has in fact worked only on some days of the week for a period of a year or more is 'a person who does not ordinarily work on every day in a week', unless there are some exceptional industrial circumstances relevant to his case."
That rule, and two other tests (the so-called "50% test" and the "stop gap test") were referred to in the decision of this court to which I have just referred in Riley v. Chief Adjudication Officer. That appeal was decided in July 1985 but it was not reported until 1987 and now appears in [1988] A.C. 746. In that case the claimant had been in full-time employment for 7 1/2 years, until his employment was terminated in October 1982. He was then totally unemployed until March 1983, when he obtained a part-time job working for two days a week, on Thursdays and Fridays. He was refused unemployment benefit on the ground that he was disqualified under regulation 7(1)(e). Appeals to the appeal tribunal and the commissioner were dismissed. The commissioner relied in her decision on the pattern of work for a few days only before he made his claim. The Court of Appeal held that this was the wrong approach and allowed the appeal. In the judgment, with which the other Members of the Court both agreed, Slade L.J. said at page 752E:
"Mr. Drabble [who then appeared for the Adjudication Officer] has submitted that the approach of the Chief Social Security Commissioner in decision CU255/84 was the correct one in principle. He indicated that the points of principle which the adjudication officer is particularly anxious to establish on this appeal are that regulation 7(1)(e) necessitates the ascertainment of the claimant's ordinary regime or pattern of work as at the relevant week and that his working history is only relevant in so far as it sheds light on what is normal for him in that relevant week, by facilitating the prediction of what may happen in his case in the near future. The stop gap test, he suggested, is of assistance only in so far as it may help to...
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