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DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998. It is:
I SET ASIDE the decision of the Birmingham appeal tribunal, held on 22 December 2004 under reference U/04/024/2004/07287, because it is erroneous in point of law.
I make findings of fact and give the decision appropriate in the light of them.
I FIND as fact that the claimant gave notice that he was working before that work ceased.
My DECISION is the claimant was entitled to incapacity benefit for the inclusive period from 29 June 2003 to 22 June 2004 and had not been overpaid in respect of any part of that period.
History and background
2. The claimant was a conference manager until he had an accident, as a result of which he was awarded incapacity benefit. He had suffered severe head and facial injuries. He became depressed and experienced memory loss, confused speech and headaches. Anti-depressants did little to help and a psychologist advised physical activity to work out his aggression. Instead, the claimant took to taking cannabis and began contemplating suicide. His partner asked his family to help and his father found him physical things to do to keep him occupied. He was interviewed on 23 June 2004 and said that he had been helping his self-employed father with labouring work two or three times a week for the past year. This work occupied him for between four and twelve hours a week. On 27 July 2004, he said that he last did work for his father on 22 June 2004, the day before the interview.
3. The decision-maker superseded the decision awarding incapacity benefit to the claimant and decided that he had been overpaid for the year during which he had worked for his father. The claimant appealed against that decision, but the tribunal dismissed the appeal in his absence. I gave the claimant leave to appeal to a Commissioner. The Secretary of State has supported the appeal to a limited extent.
4. I agree with the structured analysis set out by the Secretary of State’s representative, but not with all the conclusions she has reached.
5. The first issue is whether what the claimant did amounts to ‘work’ for the purposes of regulation 16 of the Social Security (Incapacity for Work) (General) Regulations 1995:
‘(1) … a person shall be treated as capable of work on each day of any week commencing on a Sunday during which he does work to which this regulation applies …’
6. I accept the Secretary of State’s submission that what the claimant did was work within this provision. It was physical activity that the claimant’s father would either have had to do himself or have employed someone else to do. It was useful to his father personally or to his business. It was work that the father would have been prepared to pay for. The nature and amount of the activity was not so minimal that it can be disregarded. The fact that it was done without payment is irrelevant: see regulation 16(2):
‘(2) Work to which this regulation applies is any work which a person does … whether or not he undertakes it in expectation of payment …’
7. As the claimant was working, he was not entitled to incapacity benefit unless the work was exempt work: see regulation 16(1)(a). In the circumstances of this case, that raises the second issue of whether the claimant falls within any of the categories of exempt work in regulation 17(1)(a). The only head that could apply to the claimant is head (i):
‘(1) The categories of exempt work referred to in regulation 16(1)(a) are-
(a) work in respect of which the required notice is given, and-
(i) in respect of which the earnings in any week do not exceed £20.00’.
There is not limit to the number of hours for which the claimant works in a week. So far so good for the claimant. However, the exemption only applies if the claimant gives the ‘required notice’. This is governed by regulation 17(1E), which provides that ‘required notice’:
‘means, in relation to work referred to in any part of heads (i) to (iv) of paragraph (a), notice to the effect that the person is undertaking, or about to undertake the work, given in writing to the Secretary of State by that person or another person acting on his behalf-
(a) in the case of work referred to in paragraph (1)(a)(i) …, at any time before the person ceases to undertake the work’.
8. On granting leave, I asked why the claimant’s statement of 23 June 2004 was not sufficient to count as notice for this purpose. In response, the Secretary of State’s representative submitted that the statement would have been sufficient notification had it not been for the fact that the claimant had already ceased work by the time he made it. The representative referred to the claimant’s later statement that he had last worked on 22 June 2004, the day before he made the statement. I do not agree with the representative’s interpretation of that statement. Although there is no direct evidence on the point, it is a reasonable inference that the claimant would have continued with the work if he had not been interviewed. There is no evidence of any other factor that would have led him to stop.
9. I also consider that underlying the Secretary of State’s submission is too narrow an interpretation of ‘work’ in regulation 17(1E). ‘Work’ is capable of a number of different meaning according to the context. Suppose that a shop assistant on a day off says: ‘I work but I am not working today.’ That statement is not contradictory; it is properly using the word ‘work’ in two different senses. As first used, ‘work’ refers to an ongoing pattern of activity. As second used, it refers to the actual performance of those activities on a particular occasion.
10. In regulation 16(1), the context requires that ‘work’ refer to the performance of activities. The timescale is that of a week, which is also inconsistent with ‘work’ referring to an ongoing pattern beyond that week. And the context is that a claimant who has been found or treated as incapable of work is undertaking work. The ability to do some work at least suggests the possibility that the claimant should not be receiving incapacity benefit. It is not an ongoing pattern of work that gives rise to this possibility. Any work is sufficient and that is what regulation 16(1) provides.
11. But for the definition in regulation 17(1E) the different context requires that it refer to the ongoing pattern of activity. The reference to ceasing to undertake work cannot refer simply to a single day’s (or even a week’s) activity within a pattern. It does not make sense to have so short a timescale on the need to report. If it did, the claimant would have to notify each day’s (or week’s) work individually. And it would only be possible for a claimant to comply with the terms of giving notice by interrupting the activity for that day in order to notify the work before it ceased. That is too impractical and unrealistic to be a sensible interpretation.
12. In this case, the claimant had a pattern of activity, albeit one that was to an extent irregular and unpredictable, depending on the help his father needed or the work he could offer from day to day and week to week. That pattern was ongoing at the time of the interview and statement of 23 June 2004. It was brought to an end as a result of that interview. As a consequence, the claimant last carried out any work on the day before the interview. But the pattern of activity was ongoing and, for the purposes of the definition in regulation 17(1E) the claimant only ceased to undertake work within that pattern following the interview.
13. I have not overlooked the consequence of my interpretation. It produces the result that any claimant who is interviewed, admits to working within regulation 17(1)(a)(i) and stops immediately, has properly been entitled to incapacity benefit and has not been overpaid. Whether that is the policy that the legislation was supposed to implement, I do not know. But that is the result of the legislation as properly interpreted and applied.
14. I allow the appeal, set aside the tribunal’s decision and substitute the decision that the tribunal should have given.
Signed on original
on 9 May 2005 Edward Jacobs