CUB-02-93
SOCIAL SECURITY COMMISSIONER’S DECISION
19th MARCH 1993
COMMITTEE ROOM 4, 3RD FLOOR, GOVERNMENT OFFICES, BUCKS ROAD, DOUGLAS
Mr A
Appellant
-v–
DENIS ALFRED COLQUITT
Respondent
(Adjudication Officer)
This is an appeal by Mr A against a decision of the Social Security Appeal Tribunal dismissing Mr
A’s appeal against the adjudication’s Officer’s decision that unemployment benefit is not payable to
Mr A from the 27th August, 1992.
Mr A is very nearly 65 years of age. He will become entitled to a pension in about five week’s
time. He came to the Island about fourteen years ago. He has had a variety of employments.
When he came to the Island he ran a guesthouse for three years. He has been a clerk, a sales
supervisor. He said he had taken more or less any job that came along. A lot of his work has
been seasonal and his last full time job, about eighteen months ago, he said, was for 2 months in
a hotel.
It may be that Mr A’s “eighteen months” is a bit out, for he did not dispute the
adjudication officer’s statement that unemployment benefit was claimed from the 1st October,
1990 to the 1st January, 1992.
From the 18th September, 1991, Mr A worked part time as a cashier/car park attendant. He told
me that such employment continued until the end of February 1993, when the land being used
was sold to the Government. Generally Mr A worked on four half days per week and was paid
£45.
Very rarely, he said, did he work more than the four half days.
He registered for
employment again on the 7th July, 1992. He was paid unemployment benefit throughout August
1992. On the 8th September, 1992, the adjudication officer decided that unemployment benefit
was not payable from the 27th August, 1992, because Mr A was employed to the full extent normal
in his case. The adjudication officer was applying Social Security (Unemployment, Sickness and
Invalidity Benefit) Regulations, regulation 7 (1) (e) and (2).
Regulation 7 (1) (e) reads “… a day shall not be treated as a day of unemployment if on that day
a person does not work and is a person who does not ordinarily work on every day in a week
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(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)
reads “Paragraph (1) (e) shall not apply to a person unless –
(a) …; or (b) he regularly works for the same number of days in a week for the same
employer or group of employers.”
The adjudication officer’s case was and is that from the 18th September, 1991, until the date of his
own decision, Mr A had established a pattern of part time employment on four days per week and
was disqualified by the application of the said provisions. On the 18th November, 1992, (decision
notified on the 7th December, 1992) the Appeal tribunal unanimously endorsed the adjudication
officer’s decision and dismissed Mr A’s appeal. By letter of the 8th February, 1993, the Tribunal
Chairman gave leave to Mr A to bring the present appeal.
Mr A makes a number of points. I have before me his letter of the 8th September, 1992, to the
adjudication officer, his letter of the 11th September, 1992, to the Clerk to the Appeal Tribunal, his
letter of the 10th December, 1992, to the Secretary to the Tribunal, his formal statement of appeal
grounds of the 9th February, 1993, and his reply of the 26th February, 1993, to the adjudication
officer’s observations.
There is as would be expected some overlap and repetition in these
documents. I shall try to deal with each point advanced by Mr A, whether formally as a pleading
or by letter.
Procedurally Mr A complains that the Appeal Tribunal proceeded in his absence. He says he was
told to attend at 11.30 am when in fact, he says, the Tribunal proceeded at 11.10 am. There is
nothing before me that is specific as to the time notified, but the Tribunal record does state, “The
Clerk to the Tribunal produced the appellant’s acknowledgement of notification of the hearing in
which he stated that he would be present if he could, but in which he indicated that he agreed to
the appeal being dealt with in his absence. Having allowed a certain amount of time in case the
appellant had been delayed on his way to the hearing the Tribunal decided to proceed
notwithstanding his absence.”
There was also Mr A’s letter of the 11th September, 1992, - I
cannot tell if that is the acknowledgement to which the Tribunal record refers, - it reads “I am not
particularly interested in attending a Tribunal. If you wish to hold one in my absence, so well and
good.” In my judgment no criticism can be made of the Tribunal’s proceeding in Mr A’s absence.
Mr A says that no pattern of employment was established; some weeks he worked different half
days, sometimes mornings, afternoons, even evenings. This, I find, does not avail Mr A; he
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regularly, not invariably, but regularly worked on the same number of days. The regulation does
not require that he work the same days each week.
Mr A complains that he knows of another person in his position who has not had his benefit
stopped. If this be so it will understandably cause grievance and a sense of injustice. As a point of
law, however, it is a non starter. There will always be cases which slip through the net. If Mr A’s
understanding is correct it may be a ground for stopping that other person’s benefit rather than
restoring Mr A’s.
Mr A complains that some people draw benefit weekly for years on end, never paying tax nor
National Insurance; that he would like full time work, but that work permits are granted too
readily to others to the disadvantage of persons such as he who do not require permits; that in
the Isle of Man there is still an age discrimination where employment is concerned and that people
of his age are disadvantaged. These matters may or may not be so and may or may not arouse
sympathy, but they are totally irrelevant to the matters which I have to consider.
Mr A stresses that he works four half days per week and says therefore that he is only working
two days per week. The point here was not entirely clear to me, but the premise on which it is
based is flawed. It is clear that Mr A regularly worked on four days.
Mr A takes the adjudication officer up on the latter’s observation that a year is normally the period
used as a yardstick to establish a pattern of employment. Mr A had only worked from the 18th
September, 1991 to the 8th September, 1992, when the adjudication officer’s decision was made.
This is perhaps Mr A’s best point, but it has to be said that it is not very strong and indeed I reject
it.
The adjudication officer referred to Commissioner’s decisions R(u)1/72, R(u)3/74 and R(u)
6/86. In R(u)3/74 the period was from 25th October, 1971 to 5th October, 1972 and it was said
that by the 5th October, 1972 “and indeed long before” a pattern had been established.
In
R(u)1/72 it was said that while a fifty-two week period has frequently been used to establish a
pattern of employment that was only one method of determining the matter.
All that matters, it seems to me, is that there has been a sufficiently long period to establish a
norm. If the pattern can be explained by, for example, industrial problems or staff sickness, then
it could be said that the pattern, albeit over a considerable time, was unusual or irregular and did
not truly reflect the normal extent of the working week. In the absence of unusual circumstances
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it is, I think, a matter of commonsense. Whether the period be seven or seventeen months one
looks at the pattern and asks what is the claimant’s normal working week.
In this case it is
abundantly clear that it was to work on four days and was certainly so established by the date of
the adjudication officer’s decision (“and indeed long before”). Neither the Adjudication Officer nor
the Appeal Tribunal erred in law in this matter and this appeal is dismissed.
It may be wondered how could the appellant be expected to live on £45 per week. The answer is
that that was his choice. He was aware of his entitlement to Supplementary Benefit, but would
not claim it. He wrote, “I do not want Social Security. It’s anathema to me.”
Appeal Dismissed.
19th March 1993
A K Williamson
DEPUTY HIGH BAILIFF
DEPUTY SOCIAL SECURITY COMMISSIONER
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