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Neutral Citation Number:	2010 UKUT 221 AAC
Reported Number:
File Number:	CJSA 2893 2009
Appellant:	GM
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	05/07/2010
Date Added:	03/08/2010
Main Category:	Jobseekers allowance
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 9. Remunerative work – seasonal self-employment – calculation of earnings The claimant was self-employed and worked from March to November each year, usually claiming income-based jobseeker’s allowance in the winter. His claim in November 2008 was refused and he appealed to the First-tier Tribunal. The tribunal applied CIS/166/1994 and concluded that there was a clear pattern of employment and self-employment and that the claimant’s business was an established and going concern. It therefore held that his earnings should be averaged over a year and that his weekly income, on the basis of his earnings for the 2007 season, exceeded his applicable amount, so that he was not entitled to jobseeker’s allowance. The claimant appealed to the Upper Tribunal. Under section 1(2)(e) of the Jobseekers Act 1995 a claimant is entitled to jobseeker’s allowance only if he “is not engaged in remunerative work”, defined in regulations 51 to 53 of the Jobseeker’s Allowance Regulations 1996 as work done for not less than 16 hours on average. For income-based jobseeker’s allowance, regulation 95(1)(a) provides for the earnings of a self-employed earner to be averaged over a year for the purposes of determining whether his income exceeds his applicable amount. Paragraph 4 of Schedule 6 to the 1996 Regulations provides that, in the calculation of earnings, in the case of a claimant who has been engaged in remunerative work or part-time employment as a self-employed earner and who has ceased to be so employed, from the date of the cessation of his employment there are to be disregarded any earnings derived from that employment. Held, allowing the appeal, but substituting a decision to the same effect, that: 1. paragraph 4 of Schedule 6 to the 1996 Regulations refers to an outright cessation rather than an interruption and, while it is necessary, for the purpose of applying regulation 95 to a non-working period (whether seasonal or not), to decide whether self-employment has or has not ceased within the meaning of paragraph 4 of Schedule 6, it is unnecessary to consider whether a person is “in gainful employment” despite doing no work. The decision of the House of Lords in Banks v Chief Adjudication Officer [2001] UKHL 33 (reported as R(IS) 15/01) and more recent reported decisions such as R(JSA) 1/03 and JC v SSWP [2008] UKUT 40 (AAC), reported as R(JSA) 1/09 should be followed in preference to CIS/166/1994 (paragraphs 17 to 19); 2. it is not an implicit precondition of regulation 95(1) itself that the claimant remains in self-employment and tribunals should treat the question whether earnings from an active period are relevant to a claim period as simply a matter of applying paragraph 4 of Schedule 6 (paragraphs 21 and 22); 3. on the tribunal’s findings, the claimant did not cease self-employment in November 2008 but merely entered into a cyclical period of not working and so his earnings in the year ending with the first week of his claim were to be taken into account pursuant to regulation 95(1)(a) (paragraph 23); 4. it is not an error of law for a tribunal to fail to consider whether a claimant’s hours of work exceed the threshold for “remunerative work” if it is satisfied that the claim fails on earnings grounds (paragraph 26); 5. however, unless a claim fails on earnings grounds, it is an error of law for a tribunal to fail to make a finding on average hours of work merely because there is no suggestion in the papers that the threshold is exceeded (paragraph 28); 6. although the tribunal correctly looked at the claimant’s earnings over a year, it looked at the wrong period. However his earnings calculated over the correct period still exceeded the applicable amount and he was not entitled to jobseeker’s allowance (paragraph 29).
Decision(s) to Download:	[2011] AACR 9 ws.doc