CIS_191_1991 [1992] UKSSCSC CIS_191_1991 (23 April 1992)


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UK Social Security and Child Support Commissioners' Decisions
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URL: http://www.bailii.org/uk/cases/UKSSCSC/1992/CIS_191_1991.html
Cite as: [1992] UKSSCSC CIS_191_1991

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[1992] UKSSCSC CIS_191_1991 (23 April 1992)


     
    R(IS) 12/92
    Mr. D. G. Rice CIS/191/1991
    23.4.92
    Income - notional earnings - whether claimant working in a shop for no pay was a "volunteer"

    On 20 March 1990, the claimant applied for income support. He was working for 17 hours a week in a shop owned by his parents but received no earnings for this work. The adjudication officer decided that regulation 42(6) of the Income Support (General) Regulations 1987 applied and treated the claimant as receiving notional earnings at the rate of £2.69 per hour. On appeal, the tribunal upheld the adjudication officer's decision. The claimant appealed to the Social Security Commissioner.

    Held that:

  1. the word "volunteer" appears in both the Income Support (General) Regulations and the Family Credit (General) Regulations but is not defined in either. It follows that the word must be given its everyday meaning (para. 6);

  2. a "volunteer", in the context of the decision, is one who, whilst not necessarily associated with a charitable or voluntary body, of his own free will i.e. without any legal obligation, performs a service for another person, and does so without expectation of payment (para. 6).

    3. DECISION OF THE SOCIAL SECURITY COMMISSIONER
  3. My decision is that the decision of the social security appeal tribunal given on 14 September 1990 is erroneous in point of law, and accordingly I set it aside. I direct that the appeal be reheard by a differently constituted tribunal who will have regard to the matters mentioned below.

  4. This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the social security appeal tribunal of 14 September 1990.

  5. On 20 March 1990 the claimant applied for income support, declaring that he worked 17 hours a week in a shop. Further investigation revealed that the shop he worked in was owned by his parents. The adjudication officer awarded income support, but in computing it treated the claimant as receiving earnings at the rate of £2.69 per hour. He proceeded on the basis that the claimant was caught by regulation 42(6) of the Income Support (General) Regulations 1987 [SI 1987 No. 1967]. In due course, the claimant appealed to the tribunal who in the event upheld the adjudication officer.

  6. The crucial regulation was regulation 42(6) of the Income Support (General) Regulations 1987. This provides as follows:

    7. "42. (6) Where -
    (a) a claimant performs a service for another person; and
    (b) that person makes no payment of earnings or pays less than that paid for a comparable employment in the area,
    the adjudication officer shall treat the claimant as possessing such earnings (if any) as is reasonable for that employment unless the claimant satisfies him that the means of that person are insufficient for him to pay or to pay more for the service; but this paragraph shall not apply to a claimant who is engaged by a charitable or voluntary body or is a volunteer if the adjudication officer is satisfied that it is reasonable for him to provide his services free of charge".

    If a claimant is treated as possessing any earnings under paragraph (6), the amount of those earnings are to be calculated in accordance with paragraph (8). That particular paragraph provides as follows:

    "(8) Where a claimant is treated as possessing any earnings under paragraph
    . . . . . (6) the foregoing provisions of this Part shall apply for the purposes of calculating the amount of those earnings as if a payment had actually been made and as if there were actual earnings which he does possess except that paragraph (3) of regulation 36 (calculation of the earnings of employed earners) shall not apply and his net earnings shall be calculated by taking into account the earnings which he is treated as possessing less -
    (a) an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the basic rate of tax in the year of assessment less only the personal relief to which the claimant is entitled under sections 8(1) and (2) and 14(1)(a) and (2) of the Income and Corporation Taxes Act 1970 (personal relief) as is appropriate to his circumstances; but, if the period over which those earnings are to be taken into account is less than a year, the amount of the personal relief deductible under this paragraph shall be calculated on a pro rata basis;
    (b) an amount in respect of primary Class 1 contributions payable under the Social Security Act in respect of those earnings; and
    (c) one-half of any sum payable by the claimant by way of a contribution towards an occupational or personal pension scheme."
  7. The tribunal made the following findings of fact:

    8. "1. The claimant, aged 31 years, lives with his 28 year old partner and their one year old dependent son in local authority accommodation. He is registered for employment and was in receipt of income support.
  8. Since January/February 1990 the claimant has worked on average 17 hours per week in his parents' shop in Blaenavon without pay.

  9. Pay for comparable work would be at least £2.69 per week [clearly an error for "per hour"]."

    10. The tribunal gave as the reasons for their decision the following:

    "It was submitted on behalf of the claimant that the test of reasonableness was the arrangement made within the family, the strong family ties of Asian families, that his work at the shop was different from that performed by his sister, that he was getting training preparatory to taking over the business, that he worked variable hours, and that his voluntary work was a way of repaying his parents for their past support.
    As it was not contended that his parents could not afford to pay him, the only question was whether he is a volunteer in circumstances where it is reasonable for him to work free of pay. He would not be trained in book-keeping, accounts, budgeting etc. in the business as there was no one to teach him. He sought that training outside the business. Training in matters peculiar to that shop e.g. level of stock, price mark up etc. would have been learned while the claimant worked in the shop prior to his claim for income support on 25 March 1990 as he had then been working in the shop for at least six weeks. Whilst it is laudable that the claimant should wish to help his parents, there was no reason for this to be at the public's expense, especially as there was no financial impediment to his being paid.
    Regulation 42(6) of the Income Support (General) Regulations 1987 applied."
  10. It will be seen from the foregoing that the tribunal proceeded on the basis that the claimant was a "volunteer" within regulation 42(6). Unfortunately, there is no definition of the word "volunteer" in that particular regulation, or elsewhere. The same word is used in regulation 6(c) and paragraph 2 of Schedule 9 to the regulations, but once again it is not defined in either place. Nor, for that matter, is it defined in the Family Credit (General) Regulations 1987 where it appears in regulations 5(3) and 26(4) and in paragraph 2 of Schedule 2. It follows that the word must be given its everyday meaning. The Shorter Oxford English Dictionary defines it as "one who of his own free will takes part in any enterprise". In the present context, I consider that a volunteer is one who, whilst not necessarily associated with a charitable or voluntary body, of his own free will i.e. without any legal obligation, performs a service for another person, and does so without expectation of payment. In that sense, I am satisfied that the claimant was a "volunteer" as regards the work he did in the shop. Accordingly the tribunal were right to treat him as a "volunteer".

  11. However, the tribunal went on to decide that it was not reasonable for him to provide his services free of charge. As he received no pay for the work he did, the tribunal treated him as caught by regulation 42(6). Were the tribunal right to conclude that it was not reasonable for the claimant to provide his services free of charge? It must be remembered that income support is a form of subsistence of last resort. Claimants should do their best to avoid dependency on this type of benefit. They should seek work wherever it is obtainable, and should not offer their services gratuitously. The tribunal clearly had this feature in mind when they said:

    12. "Whilst it is laudable that the claimant should wish to help his parents, there was no reason for this to be at the public's expense, especially as there was no financial impediment to his being paid."

    Moreover, the tribunal took into account the fact that there was no advantage to the claimant by way of training for his undertaking this gratuitous work. Accordingly, I see no grounds for challenging the tribunal's conclusion that it was not reasonable for the claimant to provide his services free of charge. They were entitled to reach that conclusion on the evidence before them.

  12. However, that is not the end of the matter. The tribunal went on to calculate, pursuant to paragraph (8) of regulation 42, the amount of the earnings to be attributed to him. They fixed on a figure of £2.69 per hour. However, they failed to explain how they arrived at that figure. Further, it is not clear whether they deducted from the gross earnings the deductions called for under sub-paragraphs (a)-(c) of regulation 42(8). Clearly, there was a breach of regulation 25(2)(b) of the Adjudication Regulations. It follows that on this count I must set aside the tribunal's decision, and direct that the appeal be reheard by a differently constituted tribunal. The new tribunal will make clear exactly how they arrive at the pay for comparable work, and in particular will demonstrate that all the requirements of paragraph (8) have been complied with.

  13. Accordingly I allow this appeal.

    14. Date: 23 April 1992 (signed) Mr. D. G. Rice
    Commissioner

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