|
Notes:
|
Incapacity for work-linking periods of incapacity for work separated by days of entitlement to disability working allowance - whether claimant entitled to disability working allowance for the week when last engaged in remunerative work
Remunerative work-claimant on sick leave and in receipt of statutory sick pay-whether engaged in remunerative work
In CS/4300/1999, the claimant had been entitled to severe disablement allowance (SDA) until 8 April 1998. On 9 April 1998, he started work for a fixed period, which was to end on 1 November 1998. He was awarded disability working allowance (DWA) from 14 April 1998 to 12 October 1998. On 12 October 1998, he became incapable of work and was paid statutory sick pay (SSP) until the end of his term of employment. His claim for income support (IS) on 13 October 1998 was disallowed because his SSP exceeded his applicable amount. On 2 November 1998, he claimed both IS and SDA. His SDA claim was refused by the adjudication officer on the ground that he had not been incapable of work and disabled for 196 days. Under section 68(10) of the Social Security Contributions and Benefits Act 1992, days of entitlement to disability working allowance were to be treated as having been days of incapacity for work and disablement if inter alia the claimant was entitled to disability working allowance for the week in which there fell the last day on which the claimant was engaged in remunerative work. However, the adjudication officer considered that section 68(10) could not assist the claimant because SDA could not be paid from the date when DWA ended, as the claimant was then entitled to SSP. As a result, IS was awarded without a disability premium. The tribunal allowed the claimant?s appeal and found he was entitled to SDA from 13 October 1998. The adjudication officer appealed to the Commissioner, before whom it was argued that, as long as a contract of service existed and a person was on sick leave, he was to be regarded as still being engaged in remunerative work.
The claimant in CIB/6904/1999 had been in receipt of long-term incapacity benefit (IB) until 1 April 1997. On 2 April 1997 he started work and was awarded DWA. He became incapable of work on 6 May 1998 and was paid SSP until 18 August 1998, when he asked his employer to stop paying him SSP because he believed that this would enable him to claim long-term IB. The adjudication officer awarded only the lower rate of short-term IB, on the ground that the claimant had not been incapable of work for 196 days. Under section 30C(5) of the Social Security Contributions and Benefits Act 1992, days of entitlement to disability working allowance were to be treated as having been days of incapacity for work if inter alia the claimant was entitled to disability working allowance for the week in which there fell the last day on which the claimant was engaged in remunerative work. The claimant appealed. The adjudication officer submitted to the tribunal that IB should not have been awarded until 22 November 1998, when entitlement to SSP would have ceased, and that section 30C(5) could not assist the claimant to qualify for long-term IB because it required that the claimant be entitled to DWA when the contract of employment was terminated. The tribunal accepted those submissions and the claimant appealed to the Commissioner.
Held, allowing both appeals in part, that:
1. a person who is incapable of work and who is not actually working has ceased to be "engaged....in remunerative work", notwithstanding that a contract of employment continues to subsist (paras. 7 to 12);
2. IB and SDA are not payable during any period when a claimant is entitled to statutory sick pay but days of entitlement to SSP may be taken into account for some purposes when calculating entitlement to IB and SDA so that a claimant may be able to take advantage of section 30C(5) or section 68(10) when entitlement to SSP expires (para. 13);
3. in CS/4300/1999, the tribunal had erred in awarding SDA from 13 October 1998, because the claimant was still in receipt of SSP, but the claimant was entitled to SDA from 2 November 1998 provided he had been disabled from 13 October 1998 (paras. 14 and 15);
4. in CIB/6904/1999, the tribunal had correctly held that the claimant was not entitled to IB while entitled to SSP, notwithstanding the fact that he had asked his employer to cease payments, but had erred in not finding that the claimant was entitled to long-term IB from 22 November 1998 (para. 16).
The Commissioner substituted his own decisions for those of the tribunals. |
