Riley v Chief Adjudication Officer (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE GLIDEWELL,LORD JUSTICE ACKNER |
| Judgment Date | 25 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0725-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/0410 |
| Date | 25 July 1985 |
[1985] EWCA Civ J0725-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice
Lord Justice Ackner
Lord Justice Slade
and
Lord Justice Glidewell
85/0410
MR. MARK ROWLAND (instructed by Messrs Holyoak & Co., Coventry) appeared on behalf of the Appellant/Appellant.
MR. RICHARD DRABBLE (instructed by the Solicitor to the Department of Health and Social Security) appeared on behalf of the Respondent/Respondent.
With the leave of the Commissioner, Mr. David James Riley appeals from a decision of Mrs. R.F.M. Heggs, a Social Security Commissioner, given on 8th May 1984. By this decision she dismissed his appeal from a decision of the Coventry and District Local Tribunal and held that unemployment benefit was not payable to him for the 9th, 12th, 14th, 15th and 16th days of March 1983 on the grounds that those days were not to be treated as "days of unemployment" by virtue of Regulation 7 (1) (e) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1975 ( S.I.1975 No. 564). Pursuant to Regulation 12 (5) of the Social Security (Claims and Payments) Regulations 1979 ( S.I.1979 No. 628), she further decided that her decision was to be treated as a disallowance of any further claim in respect of a Saturday, Monday, Tuesday or Wednesday falling before the 9th May 1984 if the grounds for holding that unemployment benefit was not payable continued to exist.
The appellant, who at the date of the Commissioner's decision was aged 29, is disabled. He worked full time as a clerk for 7 1/2 years until his employment was terminated on 1st October 1982. On 15th November 1982 he claimed unemployment benefit. On 1st March 1983 he took up employment with the Coventry Sports Association for the Disabled as a salaries and financial controller, at a gross wage of £36 per week. His contract of employment required him to work "16 hours per week—Thursday 8 hours and Friday 8 hours". The Commissioner found that "it was expected that his employment would last for one year", although no precise period was stipulated in the contract of employment. The employment, we have been told, was provided by the Association as part of a job creation scheme intended to help those who have been out of work for some time.
By virtue of section 14 (1) (a) of the Social Security Act 1975 ("the 1975 Act"), a person who satisfies certain specified conditions is entitled to unemployment benefit in respect of any "day of unemployment" which forms part of "a period of interruption of employment". Section 17 (1) provides for the making of Regulations making provision as to the days which are or are not to be treated as "days of unemployment" for the purposes of unemployment benefit.
Such regulations are to be found in Regulation 7 of the Regulations of 1975 referred to above, which it is common ground are the relevant regulations. Regulation 7 (1) provides:
"For the purposes of unemployment, sickness and invalidity 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, and in the application of this sub-paragraph to any person no account shall be taken, in determining either the number of days in a week on which he ordinarily works or the full extent of employment in a week which is normal in his case, of any period of short-time working due to adverse industrial conditions."
Regulation 7 (2) provides:
"Paragraph 1 (e) shall not apply to a person unless:
(a) there is a recognised or customary working week in connection with his employment, or
(b) he regularly works for the same number of days in a week for the same employer or group of employers."
By virtue of Schedule 20 to the Social Security Act 1975 "week", in the context of Regulations 7 (1) (e) and 7 (2), means a period of 7 days beginning with midnight between Saturday and Sunday. Regulations 7 (1) (e) and 7 (2) have since been consolidated in a similarly numbered regulation in the Social Security (Unemployment Sickness and Invalidity Benefit) Regulations 1983 ( S.I.1983 No. 1598).
On 15th March 1983 the appellant submitted a claim for unemployment benefit. On 10th May 1983 the local insurance officer decided that unemployment benefit was n0t payable to him for the 9th, 12th, 14th, 15th and 16th March on the grounds that he regularly worked for the same number of days in a week for the same employer or group of employers and was employed to the full extent normal in his case in the weeks in which these days fell. He therefore considered that Regulation 7 (l) (e) precluded these days from being treated as days of unemployment. He also gave a decision of "forward disallowance" under Regulation 12 (5) of the Claims and Payments Regulations 1979 ( S.I. 1979 No. 628) in respect of the inclusive period from 17th March 1983 to 9th May 1984.
At the time when he gave his decisions of 10th May 1983, the insurance officer was unaware that another insurance officer had already concluded that the appellant was entitled to unemployment benefit up to 29th March 1983 and that such benefit had in fact already been paid to him up to that date.
The appellant appealed against the decisions of 10th May 1983 to the local tribunal, which dismissed his appeal. He then appealed to the Commissioner. No application was made to her for an oral hearing, but she had the benefit of written submissions made respectively on behalf of the appellant and by an Insurance Officer, who in the event supported the appeal.
As at 10th March 1983 the appellant was regularly working "for the same number of days in a week for the same employer".
Accordingly, notwithstanding Regulation 7 (2), Regulation 7 (l) (e) would prevent each of the five relevant days in March 1983 from being treated as a "day of unemployment" in the case of the appellant if, though only if, the conditions specified in that Regulation were satisfied.
On each of the five relevant days, the appellant did no work. Thus, effectively the crucial question for the Commissioner and for this court was and is: on each of the five relevant days, did the appellant fall within the descriptions (a) "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)" and (b) a person "who is in the week in which the said day occurs employed to the full extent normal in his case"?
Both these questions must be questions of fact, falling to be decided in the light of the particular circumstances of this case. Nevertheless, they give rise to certain questions of principle. Substantially the dispute has centred on the test which should have been applied by the Commissioner in judging. ordinariness and normality for this purpose and, in particular, how far back in time this test required her to go in looking at the circumstances of the appellant.
The "one year before test", the "50% test" and the "stop-gap test".
We have been rightly referred to a number of decisions of Social Security Commissioners which are relevant to this question. As Lord Brandon observed in Presho v. Insurance Officer [1984] A.C. 310 at page 319:
"Where there has been a consistent line of decisions in this field of national insurance by specialised tribunals over a large number of years, a court should be slow to depart from them."
A number of general tests or guides designed to assist in the ascertainment of what is "ordinary" and "normal" have emerged from these decisions, though it appears that they have not been entirely consistently applied. One such test (which I will call "the one year before test") was thus stated in paragraph 11 of Decision C.U.518/49 (K.L.) as follows:
"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".
Another test (which is a more developed variant of the one year before test and which I will call "the 50% test") was thus explained by the Commissioner in Decision R (U) 14/59, when he said that where "during the year ending with the day in question (or such other period as may provide a more suitable test in a particular case) a claimant has worked on less than 50 per cent of the days of the week in question (excluding any day of incapacity for work or holiday and days On which he was unemployed because his employment had been terminated) that day should be held to be one on which in the normal course the claimant would not work. If the claimant has worked on as much as 50% of such days, it should (in my view) be held that it has not been proved that in the normal course he would not have worked on the day in question". The 50% test was referred to in paragraph 10 of Decision R (U) 14/60, where it was pointed out that there might be other exceptional days which should in addition be excluded.
A third test (which I will call "the stop-gap test") is to be found stated thus in paragraph 16 of Decision C.U.518/49 (K. L.):
"On the other hand, if a claimant took up, when unemployed, employment which did not involve working every day of the week as a stop-gap, while looking for full-time employment, he could not properly...
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