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Neutral Citation Number:
Reported Number:	R(IB)1/07
File Number:	CIB 1635 2006
Appellant:
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	13/07/2006
Date Added:	03/08/2006
Main Category:	Incapacity benefits
Main Subcategory:	periods of incapacity
Secondary Category:
Secondary Subcategory:
Notes:	Incapacity for work – treated as capable of work – application of regulation 16(3) of the Social Security (Incapacity for Work) (General) Regulations 1995 The claimant suffered from chronic fatigue syndrome and had been treated as incapable of work for some years. In the academic year 2000/01, he worked two days a week during term-time and continued to receive incapacity benefit during half-term weeks and vacations. He claimed, and was refused, benefit for the five days a week during term-time when he did no work. He appealed and was refused by reason of the decision in Chief Adjudication Officer v Astle [1999] EWCA Civ 1003. He argued before the Commissioner that he could make separate claims for each period of five consecutive days when he was incapable of work and that, as the five day periods were linked periods of incapacity, he was entitled to benefit in respect of all of them. He further argued that regulation 16(3) of the Social Security (Incapacity for Work) (General) Regulations 1995 (the Regulations) applied to him so that he was to be treated as capable of work only on the days when he actually worked. Held, dismissing the appeal, that: 1. the tribunal was wrong in its application of Chief Adjudication Officer v Astle as that case concerned a claim for benefit for a period of work which was sandwiched between two linked periods when the claimant was not capable of work. In this case the claimant was claiming in respect of the days when he did not work (paragraph 6); 2. as the claimant’s earnings exceeded the earnings limit in regulation 17(2), under regulation 16(1) of the Regulations he fell to be treated as capable of work on each day in any week in which he worked even though, but for the work, he would have been treated as incapable (paragraphs 7 and 8); 3. regulation 16(3) only applies in the first or last weeks of any period of incapacity for work. In his case, each period of incapacity was within eight weeks of the previous period, even ignoring the weeks when he worked, and the periods were therefore linked by section 30C(1)(c) of the Social Security Contributions and Benefits Act 1992. The intermediate weeks were in no case the first or last weeks of a period of incapacity and regulation 16(1) therefore applied (paragraphs 10 to 13).
Decision(s) to Download:	R(IB)_1-07_bvam.doc