CIS_665_1993 [1994] UKSSCSC CIS_665_1993 (02 September 1994)

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[1994] UKSSCSC CIS_665_1993 (02 September 1994)


     
    R(IS) 12/95
    Mrs. R. F. M. Heggs CIS/665/1993
    2.9.94
    Remunerative work - share fisherman - whether engaged in work during rest periods at sea

    The claimant was a share fisherman operating a trawler with two other men. He made a claim for income support because the boat has not been able to put to sea due to bad weather. The adjudication officer considered the claimant's pattern of work over the previous five weeks, in accordance with regulation 5(2)(b) of the Income Support (General) Regulations 1987 and disallowed the claim on the grounds that the claimant was in remunerative work. The claimant appealed to a social security appeal tribunal arguing that, when calculating his hours of work whilst at sea, rest periods should be ignored. The tribunal allowed the appeal, awarding benefit from the date of claim. The adjudication officer appealed to a social security Commissioner.

    Held that
  1. in the case of an employed person, the test to establish if a person is engaged in work is that laid down by the House of Lords in Suffolk County Council v. Secretary of State for the Environment and Another [1984] ICR 882. This distinguishes between a person who is "on duty" and one who can 'do as he pleases' (para. 13);

  2. this test can be applied by analogy to a self employed person. In this case the claimant could not "do as he pleased" during his rest periods because he could not leave the boat and might be called upon to help in an emergency. Therefore he should be treated as being engaged in work for the whole time the boat was at sea (para. 15).

    3. The Commissioner allowed the appeal.

    DECISION OF THE SOCIAL SECURITY COMMISSIONER
  3. My decision is that the decision of the social security appeal tribunal given on 22 July 1993 is erroneous in point of law and accordingly I set it aside. However, as I consider it expedient to make further findings of fact and to give such decision as I consider appropriate in the light of them, I further decide that:

    4. (a) the claimant's claim made on 17 November 1992 is to be treated as having been made on 4 November 1992, because the claimant has discharged the burden of proving that there was continuous good cause for the delay in submitting his claim, and
    (b) the claimant is not entitled to income support from 4 November 1992 because he is treated as being in remunerative work.
  4. This adjudication officer's appeal against the decision of the social security appeal tribunal of 22 July 1993, leave having been granted by the tribunal chairman. I held an oral hearing of the appeal. The claimant attended and conducted his own case. The adjudication officer was represented by Mr. S. Cooper from the Solicitor's Office of the Departments of Health and Social Security. The tribunal decided two separate appeals by the claimant on 22 July 1993. Both concerned the same issue. The first appeal (to which I shall refer as "Appeal No. 1") was in respect of the period from 29 July 1992. The second appeal was in respect of the period from 4 November 1992. It was agreed that the appeal before me was in respect of the second appeal i.e. for the period from 4 November 1992.

  5. At a material time the claimant, then aged 43, was a self-employed share fisherman who claimed income support when he was unable to go to sea because of bad weather. On 17 November 1992 the claimant claimed income support from 4 November 1992. He declared his hours of work as "For the week ending 13 October 1992, 60 hours; for the weeks ending 20 October and 27 October 1992, nil; for the week ending 3 November 1992, 52 hours; for the week ending 10 November 1992, 80 hours and for the week ending 17 November 1992, nil". On 18 November 1992 the adjudication officer decided that the claimant was not entitled to income support because he was to be treated as being in remunerative work. Thereupon the claimant appealed to the tribunal.

  6. The claimant attended the hearing of the appeal before the tribunal on 22 July 1993. In the event the tribunal allowed the appeal. They accepted that the claimant had good cause for the delay in submitting his claim, so that the claim was backdated to 4 November 1992. They further decided that periods when the claimant was on board but not actively engaged in fishing, piloting or other related duties were to be disregarded when determining the claimant's average number of hours of remunerative work. On that basis they concluded that as the claimant worked "on average approximately nine hours per week in the four weeks preceding period for which information is available" he was entitled to income support. Although the tribunal took considerable care with this case, the findings of fact and reasons for the decision in the present appeal are confusing and in my view inadequate. They consist of cross references to the findings of fact and reasons for decision for Appeal No. 1. This procedure is unsatisfactory because each decision should be able to stand on its own so that issues raised by that appeal are easily discernible without reference to a decision on another appeal. The decision failed to comply with the requirements of regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986 and was erroneous in law in consequence.

  7. Section 124(1) of the Social Security Contributions and Benefits Act 1992 provides, so far as relevant, that a person in Great Britain is entitled to income support if he is not engaged in remunerative work and, if he is a member of a married or unmarried couple, the other member is not so engaged. Regulation 5 of the Income Support (General) Regulations 1987 ("the General Regulations") provides so far as relevant:

    8. "(1) ... For the purposes of section 20(3)(c) of the [Social Security] Act [1986] [now section 124(1)(c) of the Contributions and Benefits Act] ... remunerative work is work in which a person is engaged, or, where his hours of work fluctuate, he is engaged on average for not less than 16 hours a week being work for which payment is made or which is done in expectation of payment.
    (2) The number of hours for which a person is engaged in work shall be determined-
    (a) where no recognisable cycle has been established in the respect of a person's work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which he is expected to work in a week;
    (b) where the number of hours for which he is engaged fluctuate, by reference to the average of hours worked over-
    (i) if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the person does no work, those periods but disregarding any other absences);
    (ii) in any other case, the period of five weeks immediately before the date of claim or the date of review, or such other length of time as may, in the particular case, enable the person's average hours of work to be determined more accurately.
    (3)-(7) ..."
  8. Mr. Cooper accepted that the claimant had good cause for the delay in submitting his claim so that I do not propose to comment on this issue further. It follows that for the purposes of this appeal the date of claim was 4 November 1992.

  9. It is not in dispute that there was no recognisable cycle of work and that the number of hours worked fluctuated, because the work was entirely dependant on weather. The tribunal rightly determined the number of hours for which the claimant was engaged in work in accordance with regulation 5(2)(b)(ii) of the General Regulations. As stated the claim was treated as made on 4 November 1992 and the tribunal had regard to the inclusive five weeks period from 30 September 1992 to 3 November 1992. They correctly included periods of non-working within that period. However, they discounted the first week because they had no evidence before them as to the hours the claimant had worked in that week. In my view the tribunal erred in law because that was not an adequate reason for choosing a period other than the five week period specified. The alternative period should only be taken if it can be demonstrated that it will produce a more accurate aggregate R(FIS) 2/83 and there is no indication in the present case that the shorter period chosen would produce such a result.

  10. I now turn to the crucial issue which is the calculation of the number of hours in which the claimant was engaged in remunerative work for the purposes of regulation 5(1) of the General Regulations.

  11. The claimant told me that he worked on a 36ft inshore trawler, which was owned by the skipper. The crew consisted of the skipper, the claimant and another man. They fished in various places depending on the time of year. During the period in issue they fished off the north Cornish coast and southwest of Lands End for prime fish. They took approximately half an hour to reach those fishing grounds from the home harbour. While fishing they worked in shifts or watches of four hours each. Only two members of the crew were on active watch duties at any one time. One member had the main responsibility for steering, cooking and other related duties. The second member was required to assist the first in various fishing activities such as shooting the nets, pulling in the haul, gutting and washing the fish and putting the haul in the fish-hold on ice. The deck then had to be cleared. They took approximately five minutes to shoot the nets; ten minutes to pull in the haul depending on the depth of the water; half an hour to gut and wash the fish and put it in the hold on ice. Normally there were eight hauls a day. The claimant argued that although the "trawler worked" 24 hours a day, his "working day" was usually eight hours out of 24 hours and four hours on the days when they left and returned to the home harbour. On those days the fish was unloaded and all the equipment checked before leaving again if the weather permitted. In addition he told me that during the week commencing 30 September 1992 he did no work because the trawler had broken down and needed repair. Although the members of crew were responsible for the general maintenance of the trawler and fishing nets, no such duties had been carried out in the period in issue. The claimant's evidence before me was substantially the same as the evidence that he gave to the tribunal and I accept it as fact.

  12. The tribunal found as fact that during the inclusive period from 13 October 1992 to 3 November 1992 the claimant "worked" the hours initially stated by him. However, those hours referred to hours actually spent at sea. The tribunal took the view that for the purposes of regulation 5(1) of the General Regulations, the hours the claimant spend on board but not actively engaged in fishing or other related duties were to be disregarded when determining the number of hours work in which the claimant was engaged. They concluded that as the three members of the crew shared the hours of work equally, the claimant worked for eight hours out of every 24 hours on board the vessel and four hours during the days the vessel left and returned to the home port. Applying this "formula" the tribunal calculated that there were "thus periods of 20 hours and 171/3 hours, together with two weeks of nil hours the total of 37 hours being divided by four to produce an approximate nine hours being divided by four to produce an approximate nine hours per week of average remunerative work".

  13. Even if the tribunal's "formula" is correct they misapplied it. They based their decision on the assumption that only one member of the crew was engaged in work at any one time. That does not accord with the tribunal's findings of fact. Two of the shifts overlapped. The first member of the crew had the overall responsibility of the trawler during his shift. The second member of the crew was required to assist the first member in carrying out the duties specified in paragraph 9 e.g. hauling the nets. The claimant stated that these activities took a total of three quarters of an hour. There were eight hauls a day so that the tribunal should have included a further six hours a day in their calculations. Applying the "formula" this would have resulted in the claimant working a total of approximately 69 hours which being divided by four produced an approximate average of 17¼ hours per week of remunerative work. As a result the claimant would not be entitled to income support and the tribunal erred in law in concluding otherwise. However this is not decisive of the issue because the claimant did no work in the week commencing 30 September 1992 so that applying the tribunal's "formula" over the five week period the claimant worked a weekly average of 13 hours 48 minutes. The real question is whether the tribunal were right to disregard the hours the claimant was on board but was not actively engaged in fishing or other related duties in the calculation of his average number of hours of remunerative work for the purposes of regulation 5(1) of the General Regulations. The claimant strongly argued that it was perverse to conclude otherwise because it resulted in a 24 hour working day. The reality of the position was that when he was not on watch, his time was his own to do as he wished. This constituted a third of the time spent on board. Furthermore as explained in his evidence to me, the second shift involved limited duties so that part of the time on that watch was his own. In his view he worked no more than eight hours out of every 24 he was on board the trawler and four hours during the days that he was leaving or returning to home port.

  14. Mr. Cooper submitted that all activities undertaken by the claimant in the course of fishing fell to be treated as hours of remunerative work for the purposes of regulation 5(1) of the General Regulations. Those activities included all time spent on the trawler whether resting or on watching; time travelling to and from the home harbour to the fishing grounds; time spent unloading the haul in port and time spent on the maintenance of the boats and nets. Those activities were all part of the claimant's work as a share fisherman. In support of his argument he referred me to decision R(FIS) 6/86 where the Commissioner held that all the activities essential to the undertaking of a self-employed person were to be taken into account in determining the number of hours of remunerative work. He submitted that the principle applied to all self-employed workers not just to a particular group. He also referred me to decisions R(U) 9/52 and R(U) 9/53 where it was held that the claimants' work included "performing work as a share fisherman" whilst returning to the home port, regardless of the circumstances.

  15. Mr. Cooper also referred me to The House of Lords judgement in Suffolk County Council v. Secretary of State for the Environment and Another [1984] ICR 882, which concerned the position of a fireman, albeit for pension purposes, who was paid an annual retaining fee in consideration of his agreement to act as a fireman when called upon to do so, subject to the terms and conditions of employment. In theory he was on call for 24 hours a day; in practice, he attended at his station or at a fire or other occurrence for less than 30 hours each week. He lived in and owned and ran a shop within five minutes of the station to which he was attached. The House of Lords decided that he was not a "whole-time employee" because the obligation of a retained fireman to keep himself available for response to calls was not in itself employment but was merely an obligation to employ himself in the local authority's service when called upon to do so. Lord Templeman said at page 890:

    16. "... a regular fireman is employed when he is on duty whether he is fire fighting or sleeping ... While he is on duty, that is to say while he is completing his "hours of employment" he commits a breach of his contract of employment if ... he sleeps at a time or in a place contrary to his instructions from the fire authority. While he is not on duty he may do as he pleases ..."

    At page 892 he held:

    "The regular fireman sitting in the recreation room during his hours of duty cannot go home or carry on any activity other than the activity for which he is paid. A retained fireman sitting at home can undertake any activity he pleases, when he pleases and wherever he pleases until he is called upon to perform the duties for which he is paid ..."
  16. It is not in dispute that the claimant is a share fisherman as defined in regulation 1(2) of the Social Security (Mariners' Benefits) Regulations 1975. The tribunal took the view that decisions R(U) 9/55 and R(U) 9/53 did not assist in the present case because the question at issue in those cases was whether any work had been performed on the day in question as a sharefisherman in relation to unemployment benefit. I agree, although those decisions are helpful in ascertaining the activities which constitute the work of a share-fisherman. The tribunal laid considerable weight on the fact that as the claimant was not the "skipper" of the trawler, he was not "on call" during the times he was not actually on watch or helping with the tasks referred to. In my view the fact that the claimant was not the skipper of the trawler has no bearing on the issue.

  17. I have found this case difficult to determine. There is force in the claimant's argument and the reasons given by the tribunal in support of their conclusion. Apart from the cases cited above I have been unable to find any cases which assist me in the interpretation of regulation 5(1) of the General Regulations. It is not in dispute that as a share-fisherman the claimant was remunerated by a share in the profits of the trawler. It follows that he was remunerated for all activities undertaken by him as a share-fisherman, which included periods he was resting or sleeping while at sea. I have applied the principles established in Suffolk County Council v. Secretary of State for the Environment and Another although I appreciate that the case concerned an employed earner as opposed to a self-employed as in the present case. I have reached the conclusion that the phrase "work in which a person is engaged" in regulation 5(1) of the General Regulations should be given a wide interpretation and include in this particular case the whole period the claimant was at sea. I have been influenced by the following facts. The trawler was small and required a three man crew; although the claimant rested for eight hours out of every 24 hours he spent at sea, he was required to stay on the trawler by the very nature of his occupation; I doubt he could have returned home during the rest periods even if any form of transport could have been arranged; he was "on call" in that he could be summoned to assist at any time e.g. if a member of the crew was taken ill and was unable to perform his duties or if there were difficulties during a storm; in reality the claimant could not do as he pleased during the rest periods that he was at sea.

  18. For the reasons stated above I have reached the conclusion that the whole period that the claimant was at sea during the period in issue falls to be included in the calculation of remunerative work in which the claimant was engaged for the purposes of regulation 5(1) of the General Regulations. During the period of five weeks immediately before the date of claim, the claimant worked 60 hours one week, 52 hours another week and nil hours for three weeks. As a result during the inclusive period from 30 September 1992 to 3 November 1992 he worked an average of 22 hours 40 minutes each week. Consequently under the provisions of regulation 5(1) the claimant falls to be treated as engaged in remunerative work and is not entitled to income support. I am aware that the claimant regards the conclusion of this nature as a clear breach of social justice. However, my jurisdiction is limited to interpretation of the statutory regulations as they are currently enacted. I have no power to amend them or apply them in an arbitrary way.

  19. For the reasons stated above the tribunal's decision was erroneous in law and to that limited extent the claimant's appeal is allowed. However, as I consider it expedient to give the decision the tribunal should have given, I give the decision set out in paragraph 1 as I am empowered by section 23(7)(a)(ii) of the Social Security Administration Act 1992.

    20. Date: 2 September 1994 (signed) Mrs. R. F. M. Heggs

    Commissioner

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