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[2006] UKSSCSC CSJSA_23_2006 (01 September 2006)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSJSA/23/2006

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: L T PARKER

Oral Hearing

Appellant: James Perman Respondent: Secretary of State

Tribunal: Greenock Tribunal Case No: U/05/917/2005/00529

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

1. The decision of an appeal tribunal sitting in Greenock on 20 July 2005 (the second tribunal) demonstrates error in law. Accordingly, I set the second tribunal's decision aside and return the appeal for a fresh hearing by a new tribunal in accordance with directions given at the end of my decision.

Background

2. The appellant ceased employment as a lecturer on 30 September 2003 and thereafter made a claim for contribution-based jobseeker's allowance (CBJSA). There is no dispute that he has paid the appropriate contributions for 182-day maximum entitlement to this benefit subject to satisfying the other qualifying conditions. From the outset, the appellant stated that he was working part-time, as he had done from 1986, for a business ("the business"), which, in 2002, had been incorporated as an unlimited company. The hours fluctuated but the regular pattern was of two or three hours a day from Monday to Friday. The appellant is the sole director and majority shareholder of the business. The principal activity of the business is that of Chartered Accountants.
3. The appellant stated that he received no remuneration for his part-time work. A decision maker (DM), on behalf of the Secretary of State, determined that notional earnings should be taken into account using the national minimum wage figure of £4.50 per hour. A decision (the first decision) was therefore made on or around 22 March 2004 that the appellant was entitled to CBJSA for the period 12 October 2003 to 25 March 2004, but subject to part-time earnings based on a national minimum wage being taken into account. It seems the DM incorrectly categorised the appellant as "self-employed": because when the appellant contacted the jobcentre on 5 April 2004 requesting that the decision was reconsidered, his objection was not only that he asserted he received no remuneration for his part-time work but that he was not self-employed. In fact, at this stage, as the DM had no accounts from the business and therefore no knowledge of its profits, the incorrect categorisation of the appellant as self-employed made no appreciable difference to the calculation, which was carried out as if he was (in any event the correct position) an employee.
4. On 29 April 2004 the appellant appealed (the first appeal) against the first decision on the same grounds as had led him to seek reconsideration three weeks earlier. Before the first appeal came on for hearing by a tribunal (the first tribunal), a further decision (the second decision) was made by a DM on 17 May 2004. The second decision revised the first decision and was to the effect that, having regard to the lack of evidence available, on the balance of probabilities, the appellant had earnings in excess of any entitlement to CBJSA from 10 October 2003 to 25 March 2004. As the second decision was more unfavourable than the first decision, regulation 31 of the Social Security Child Support (Decisions and Appeals) Regulations 1999 SI No.991 (the decisions regulations) (see Appendix (b)) meant that the appeal against the latter did not lapse. The letter of 17 May 2004 to the appellant which communicated the second decision was in the following terms:

"You made an appeal against a decision about Jobseeker Allowance contribution based issued to you on 22^nd March 2004.

We have looked again at the facts and evidence we used to make our decision. As a result we have changed the decision.

You are now entitled to £0.00 a week from 10/10/03 to 26/03/04.

What happens now

Your appeal will continue and be treated as an appeal against the new decision."

5. The first tribunal was held on 18 November 2004. It adjourned for several steps to be taken, including the submission of company accounts by the appellant. The appellant complied, sending the accounts of the business, firstly for the period 29 April 2002 to 31 March 2003 and, secondly, for the financial year ending 31 March 2004. On 1 February 2005, a DM then made another decision (the third decision) on his claim; the view was now again taken that the business had sufficient means to pay him for the number of hours he was working and that the national minimum wage should be assumed, so that the appellant was entitled to a sum of CBJSA for the period 12 October 2003 to 10 April 2004, taking those into account. From 11 April 2004, entitlement to CBJSA was exhausted. The appellant was sent two letters dated 7 February 2005 from the DM; the first set out the appropriate monetary amount of CBJSA in the relevant period, having regard to the earnings deduction (letter 1), and the second (letter 2) told him:

"We have already paid you contribution-based Jobseeker's Allowance from and including 12^th October 2003 up to and including 25^th March 2004. These payments were issued to you as two separate girocheques on 22^nd March 2004. I have enclosed payment of arrears now due to you from and including 26^th March 2004 up to and including 10^th April 2004 with this letter."

6. As decision 3, which now replaced decision 2 on revision, was more advantageous, in that it changed a decision that there was no entitlement whatsoever into one that there was some, the appellant was advised that the first appeal had lapsed (i.e. the DM was acting under s.9(6) of the Social Security Act 1998 (the Act) (see Appendix (a)); but regrettably, as so often happens, the statutory basis for action is not explained properly to a claimant, who, unsurprisingly, often sees in it, therefore, arbitrary action.
7. An appeal (the second appeal) was therefore brought against the third decision by the appellant:

"Previous [forms] indicate that I was not in receipt of any JSA, as the amount was paid in error.

Consequently the amount and nature of such payments of contribution-based JSA are ambiguous, and decision not to make payment is appealed."

Furthermore, in a submission put to the second tribunal, the appellant expanded on the above, setting out three issues:

"The appeal of 8 February 2005 is lodged in respect of the quantum of the amount of Contribution-Based Jobseeker's Allowance to which I am entitled, entitlement being established on 7 February 2005; whether that amount has been paid to me; and in what fiscal years it was actually paid, and hence assessable as a taxable benefit."

A tribunal (the second tribunal) on 20 July 2005, confirmed the third decision.

Appeal to the Commissioner

8. The grounds of appeal to the Commissioner are that, while the tribunal considered the quantum of CBJSA, it did not address, either in the decision notice or the statement of reasons which followed, the second and third of the above issues. A district chairman, who had chaired both the first and the second tribunals, granted leave to appeal. In a written submission, the Secretary of State supported the appeal on the basis that the calculation of notional earnings and their attribution had not been correctly done. The DM in the third decision had used regulation 97(6)(b) of the Jobseeker's Allowance Regulations 1996 SI No.207 (the JSA regulations) (see Appendix (d)) because the work fluctuated; it was now suggested that the second tribunal erred in endorsing the third decision to the extent it took into account earnings for the benefit week commencing 19 December 2003, when the claimant had not worked in that week and thus could not be fixed with notional earnings.
9. The appellant requested an oral hearing, which was granted by a legal officer, because he disagreed with the Secretary of State's submission that items 2 and 3 of his appeal to the second tribunal were outwith the tribunal's jurisdiction.

Oral hearing

10. The appeal came before me on 24 August 2006. As he has done throughout the proceedings with respect to his claim, the appellant appeared and represented himself. The Secretary of State was represented by Mr David Bartos, Advocate, instructed by Mr Scott Mathieson, Solicitor, of the Office of the Solicitor to the Advocate General. I am grateful to them both for their helpful submissions, to which I will refer, where relevant, in my own reasons.

The legislation

11. (See Appendix)

My conclusions and reasons

Earnings

12. Mr Bartos submits that the third decision was correct except for its inclusion of notional earnings in the week 25 December 2003 – 1 January 2004 and that, accordingly, the second tribunal's decision should be set aside as in error of law for confirming the third decision; he suggests that I substitute my own decision varying the third decision to include an entitlement to CBJSA of £54.65 for the week 25 December 2003 to 1 January 2004 but otherwise in the same terms as the third decision. Mr Perman appeared content with that course of action so far as quantum is concerned, recognising that earnings can be imputed even though a claimant does not have actual earnings.
13. However, I do not consider it appropriate to substitute my own decision. The second tribunal erred by not considering the case first under reg. 105(13A) of the JSA regulations (see Appendix (d)). On the claimant's arguments, he worked without pay despite no legal obligation to do so; was it reasonable for him to provide his services free of charge? The means of the employer are relevant in assessing reasonableness but all the circumstances must be considered; paragraph 13A is, in effect, a proviso which can benefit a claimant even though he is caught by the general rule and is unable to establish that the means of the business are insufficient to pay him. He may be able to point to some other factor making it reasonable for him to undertake such gratuitous work, quite separate from the finances of the business; if so, regulation 105(13) (Appendix (d)) never bites.
14. In applying the general rule under regulation 105(13), the second tribunal erred in not re-evaluating whether using the hourly rate of the national minimum wage was appropriate. It has never been established precisely what "service" the appellant carries out nor what would be paid for a comparable employment in the area; it seems that he oversees the work of the two part-time employees who carry out basic book-keeping accountancy work (business authorised by the Finanacial Services Authority being completed on a commission-sharing basis by individuals who are not employees of the firm). Their rate of pay, plus an element for supervision, might provide a useful starting point for local comparable earnings. Once the Secretary of State establishes that less is paid than that paid for comparable employment in the area, then the claimant must be treated as possessing the earnings that are reasonable "for that employment" unless he demonstrates (the burden of proof lies on the claimant) that the means of "that person" (which includes a company) are insufficient to pay more. The substratum of fact required to underpin the conclusion that the national minimum wage was the appropriate comparator, even allowing for the adjustment which the term "reasonable" gives, or with respect to the other constituents relevant to imputing notional earnings, was never established in the present case.
15. Correct calculation of notional earnings is also important with respect to the possible application of s.2(1)(c) of the Jobseekers Act 1995, which precludes entirely from entitlement to CBJSA a claimant who has "… earnings in excess of the prescribed amount". Regulation 56 of the JSA regulations sets out how the prescribed amount is determined and, in this particular claimant's case, it would appear to be £59.64. I feel unable satisfactorily to determine this or any other matter arising under the calculation of earnings which are better suited to the expertise of a financially qualified panel member sitting on the new tribunal. An unlimited company is exempt from the requirement to have its annual accounts audited. The apparent lack of profit from a business which is said to have traded since 1986 seems a little strange. The explanation given by the appellant is that he carried the business on in order to keep up his professional expertise while he was lecturing, that he did not wish to throw out of work the two part-time employees and that a major advantage for him relates to the financing of the purchase of the premises used by the business, which premises belong to him and are not a business asset. However, the turnover was £84,396 in the period to 31 March 2003 and £110,448 in the period to 31 March 2004, yet the business made profits of only £6,843 and £10,290, which is why it is said that these do not justify paying a salary to the appellant. It does not seem to make much sense for a company to trade with little profit in circumstances where the principal shareholder/director (a chartered accountant and effectively the sole practitioner of an incorporated accountancy practice) has two other people working for the business if they are simply generating only sufficient income to pay its overheads and he is required to work part-time for no remuneration or other financial reward; but a tribunal accountant member would be much better placed and expert than I am to explore these issues with the appellant so that he has a fair hearing on all matters.
16. I am also not satisfied that using a rolling five week average under regulation 97(6)(b) of the JSA regulations (see Appendix (d)) is appropriate, although I recognise that there is a discretion and a tribunal cannot be criticised if such use is reasonable. However, I would have preferred the second tribunal to consider how it exercised that discretion. Averaging out in this way and not starting the attribution until after the first five week period, is useful and legitimate where there is an ongoing claim and it is undesirable for benefit to be constantly re-calculated. In the present case, however, the calculation was carried out long after the period in issue, so that there was no difficulty whatsoever in a precise calculation attributing specific earnings to each week in the relevant period. A further difficulty which arises is that under regulation 105(15) of the JSA regulations (see Appendix (d)), notional earnings are to be calculated in the same way as actual earnings. This presents problems under regulations 94(2), 96(1) and 97(1) of the JSA regulations (see Appendix (d)). If there is no actual or implied contract, as is inevitably the case with actual earnings, how can it be determined over what period a payment is "payable" or "due to be paid"?
17. In such circumstances, it seems inevitable that an adjudicating authority must establish analogies with the "comparable employment in the area" which has been the rationale for treating a claimant "as possessing such earnings (if any) as is reasonable for that employment …". Again, this needs the taking of evidence and fact-finding by a body which preferably includes an accountant. Mr Bartos submitted that, because CBJSA is a weekly benefit, the Secretary of State regards notional earnings as paid for the length of a week; but he could give no assistance on when such earnings were considered as "due to be paid". In my judgement, an adjudicating authority has to establish what are the likely terms of employment of one in a similar job in the area, i.e. having regard to the nature of a claimant's work and its pattern, would he or she probably be paid for the day, or weekly, or monthly? If weekly, it is normal to be paid each Friday, and if monthly then on the end date of the month; where a person is paid per day, it is unusual to be paid at the end of the day, but whether payment is then made weekly or monthly often depends on whether the services are professional or otherwise. A financially qualified member is likely to know common practice in the area, which can be raised with the appellant at the hearing and where he has an opportunity to provide his own information. He does not want a further hearing, having had three already; now that the matter is returned to a tribunal, he has the option of withdrawing the appeal and leave is not required. He would then be left with the third decision as definitive.

Jurisdiction

18. Mr Bartos argues that the second tribunal erred by failing to address clearly two issues put to it, viz. whether an amount of CBJSA had been paid to him in terms of the entitlement established by the third decision and, further, in what fiscal years it was paid and hence assessable as a taxable benefit. Reluctantly, I accept that submission, although the second tribunal did not have the benefit of a fully developed argument; on the first point, it could well be thought, as did Mr Bartos, that what was being suggested was that sums of money had not been received by the appellant; so far as the next point is concerned, while some fairly convoluted information was put to the tribunal about which P45U, PB9 and PB10 forms etc were defective, the second tribunal was not supplied with a copy of the Income Tax (Pay As You Earn) Regulations 2003 SI No.2628 (the tax regulations) (see Appendix (e)) on which the appellant has relied before the Commissioner.
19. I agree with the appellant that R(IS)7/91 and R(SB)29/84, are not relevant to the present case insofar as they confirm that an appeal tribunal has no jurisdiction to determine whether instruments of payment have been received by a claimant. The appellant's argument is more subtle than that. He accepts that he received the sums stated. What he does not accept is that he was ever paid under the first decision for an entitlement to CBJSA. If that were the case, then his entitlement under the third decision is to the full amount of CBJSA stated as appropriate for the period 12 October 2003 to 10 April 2004 by letter 1, rather than the modification of that amount set out in letter 2. He asserts that, by the letter of 17 May 2004 (see my paragraph 4 above), and other documentation from the Department, in effect he was told that what he received under the first decision was deemed not to be taxable JSA; and this was confirmed by the P45 issued effective 26 March 2004, which included no taxable benefit: as CBJSA is a taxable benefit, this must indicate, the appellant says, that entitlement to such a benefit was not established before the third decision.
20. Mr Bartos submits that the only terms of the third decision are those set out in letter 1. I do not agree. Letter 2 also contained a judicial determination and the two letters must be read together as constituting the third decision. The DM, acting under regulation 5(1) and case 1 of the Social Security (Payments on Account, Overpayments and Recovery Regulations 1988 SI No.664 (the payments regulations) (see Appendix (c)), offset against arrears of entitlement now arising the sum paid under the first decision; which first decision had subsequently been revised twice. Such offsetting is a matter subject to appeal to a tribunal under reg. 27 and paragraph 20 of Schedule 2 to the decisions regulations (see Appendix (b)) by an excepting provision to that Schedule, (which would otherwise have the opposite effect and make such a decision non-appealable).
21. Therefore, the tribunal had jurisdiction to answer the appellant's contention that the third decision ought not to have offset from it the amount to which he had originally been found entitled under the first decision: although he did not express it in these terms, that was the nub of his argument. However, it fails. This is because the prior amount paid was never deemed "not to be JSA". The first decision existed until 17 May 2004, when it was replaced by the second decision. Under the authority of the first decision, a sum relating to CBJSA was paid in respect of a period which overlapped the period to which he was again found so entitled by the third decision. By the second decision, the Secretary of State, acting through a DM, changed his mind as to whether there was entitlement and made that non-entitlement retrospective. Nevertheless, the earlier sum was paid pursuant to a decision subsequently changed under s.9 of the Act (see Appendix (a)); unsurprisingly, such an earlier payment is not considered a gift by the government, but provision is made in such circumstances for it to be clawed back if a changed decision is given later with respect to the same period and the calculation on entitlement overlaps.
22. Nor do I accept the argument that the documentation of his P45Us, P60, etc, given the terms of, for example, regulations 158 and 159 of the tax regulations (see Appendix (e)), indicate the opinion of the completing officer that what was authorised by the first decision was not CBJSA. In my view, there is no such indication; such documentation was merely a reflection of the three successive decisions on substantive entitlement to CBJSA following the claim to it in issue. In any event, a decision maker concerned with claims cannot be estopped by extraneous statements from reliance on decisions properly made within the framework of the social security legislation, which determined entitlement according to the statutory criteria.
23. In passing, I note that in support of his argument that a departmental officer made mistakes when completing the tax documentation, the appellant maintains that he had no claim to CBJSA between 26 March 2004 to 15 October 2004; he kept attempting to sign on and each time was reminded that he had no claim. If he had no claim between 26 March 2004 to 10 April 2004, then certainly he could have no entitlement in that period; s.1 of the Social Security Administration Act 1992 sets out the basic rule that, subject to exceptions which are not relevant in the present case, there cannot be entitlement to benefit unless a claim is made for it. However, I strongly doubt this was the position. By the first decision, entitlement was determined up until its date and it would normally follow that continuing entitlement would be determined by a further decision. However, the appellant immediately objected. Under s.21 of the Act, regulations may provide for suspending payment to a relevant benefit in prescribed circumstances; regulation 16(3)(a)(i) of the decisions regulations, authorised by s.21, allows the Secretary of State to suspend payment where "… an issue arises whether the conditions of entitlement to a relevant benefit are or were fulfilled …". Having regard to his criticisms of the first decision, an issue thereby arose as to whether further payment should be suspended.

Tax liability

24. Mr Bartos relies on the provisions of s.8 and 12 of the Act, (Appendix (a)), for his submission that tax matters do not fall within a tribunal's jurisdiction; such determinations are not made on a claim for, or an award of, a relevant benefit nor is there a decision made under or by virtue of a relevant enactment, which does not include tax legislation. He points out that the Preamble to the tax regulations (Appendix (e)) sets out their enabling legislation which do not coincide with the definition of any relevant enactment under s.8 of the Act. I note also that all obligations under the tax regulations are firmly placed on "the Department" (defined as the Department for Work and Pensions in regulation 148 (see Appendix (e)) and not on the Secretary of State as in the Social Security legislation; this adequately demonstrates that administrative rather than judicial decisions are encompassed by the tax regulations. Accordingly, I agree that how the Department for Work and Pensions carried out its obligations under the tax regulations and whether or not it did so correctly, were not a matter for the second tribunal.
25. The appellant relied on s.18(1)(a)(ii) of the Act, which authorises regulations relating to "any person's entitlement to such a benefit or its receipt"; he argued that it was the nature and timing of his receipt of benefit which was the subject of the second and third items of his appeal, i.e. whether he had received the benefit to which he was entitled and when it was received by him and hence assessable as a taxable benefit. However, I accept the submission of Mr Bartos that the words relate back to the preceding passage, "[r]egulations may make provision as respects matters arising – (a) pending any decision under this Chapter of the Secretary of State … which relates to … (ii) … entitlement to such a benefit or its receipt". This therefore takes one back to the terms of s.8 and s.12, which are in the same Chapter and tax decisions do not constitute a decision under this Chapter.

Summary

26. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant's case on the merits is entirely for them. Although the claimant has been successful in his appeal limited to issues of law, the decision on the facts in his case remains open.

Directions

27. The matters arising for the new tribunal are the questions arising under the calculation of earnings. The tribunal has no jurisdiction to consider the matters arising under the tax regulations and, while it has jurisdiction to consider offsetting under regulation 5 of the payments regulations, there is no indication that such has not been correctly carried out. The appellant's argument that any sums paid under the first decision could not be offset against the entitlement under the third decision is rejected. The new tribunal must first make appropriate findings and then apply the tests set out in regulation 105 (13A) and (13) of the JSA regulations (see Appendix (d)).
28. Having decided, if appropriate, what are the notional earnings, which will be net earnings, as calculated under regulation 105(15) of the JSA regulations (see Appendix (d)) and its subparagraphs, the new tribunal must then determine whether their amount in any relevant week is such as to preclude him entirely from CBJSA because above the "prescribed amount" or, if below that, the extent to which his CBJSA should be reduced to take account of them, if at all.
29. Having regard to comparable employment, the new tribunal must determine the length of the period over which any payment is to be taken into account and when it is due to be paid; it then has to use regulation 97 before determining the weekly amount so to be taken into account and, in particular, whether it should use a rolling average under regulation 97(6) or the straightforward rule under 97(1) (see Appendix (d)).
30. It is suggested that consideration is given by a district chairman to listing before a new appeal tribunal containing a financially qualified panel member because, as set out under regulation 36(3)(b) of the decisions regulations:

"the appeal … may require consideration by members of the appeal tribunal of issues which are, in the opinion of the President, difficult and which relate to –

(i) profit and loss accounts, revenue accounts or balance sheets relating to any enterprise …"

31. The new tribunal will be chaired by a different legally qualified panel member.

(Signed)

L T PARKER

Commissioner

Date: 1 September 2006

APPENDIX

(a) The Social Security Act 1998 (the Act)

"Chapter II

Social Security Decisions and Appeals

Decisions

8.-(1) Subject to the provisions of this chapter, it shall be for the Secretary of State-

(a) to decide any claim for a relevant benefit; …

…

(c) … to make any decision that falls to be made under or by virtue of a relevant enactment;

…

(4) In this section 'relevant enactment' means any enactment contained in this Chapter; the Contributions and Benefits Act, the Administration Act, the Social Security (Consequential Provisions) Act 1992; the Jobseekers Act or the State Pension Credit Act 2002 …

…

9.-(1) … any decision of the Secretary of State under section 8 above … may be revised by the Secretary of State-

…

(6) Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined.

...

Appeals

12.-(1) This section applies to any decision of the Secretary of State under section 8 … (whether as originally made or as revised under section 9 above) which

(a) is made on a claim for, or on an award of, a relevant benefit, …

…

(8) In deciding an appeal under this section, an appeal tribunal-

(a) need not consider any issue that is not raised by the appeal; …

…"

(b) The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the decisions regulations)

"27.-(1) No appeal lies to an appeal tribunal against a decision set out in Schedule 2.

(2) In paragraph (1) and Schedule 2, "decision" includes determinations embodied in or necessary to a decision …

…

30.-(1) An appeal against a decision of the Secretary of State … shall not lapse where the decision … is revised under … section 9 before the appeal is determined and the decision as … revised is not more advantageous to the appellant than the decision before it was … revised.

…

SCHEDULE 2

Decisions against which no appeal lies

…

Payments on Account, Overpayments and Recovery

20. A decision of the Secretary of State under the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988, except a decision of the Secretary of State under the following provisions of those Regulations-

…

(c) regulation 5 as to the offsetting of a prior payment against a subsequent award;"

(c) Social Security (Payment on Account, Overpayments and Recovery) Regulations 1988 (the payments regulations)

"Offsetting prior payment against subsequent award

5.-(1) …any sum paid in respect of a period covered by a subsequent determination in any of the cases set out in paragraph (2) shall be offset against arrears of entitlement under the subsequent determination and, except to the extent that the sum exceeds the arrears, shall be treated as properly paid on account of them.

…

(2) Paragraph (1) applies in the following cases-

Case 1: Payment pursuant to a decision which is revised or superseded, or overturned on appeal

Where a person has been paid a sum by way of benefit … pursuant to a decision which is subsequently revised under section 9 of the Social Security Act 1998 …"

(d) The Jobseeker's Allowance Regulations 1996 (the JSA regulations)

"94- …

(2) … the period over which a payment is to be taken into account shall be-

(a) in a case where it is payable in respect of a period, a period equal to the length of that period;

(b) …

and that period shall begin on the date on which the payment is treated as paid under regulation 96.

96-...1) … a payment of income to which regulation 94 (calculation of earnings derived from employed earner's employment …) applies shall be treated as paid-

(a) in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the date on which it is due to be paid;

(b) in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week in which it is practicable to take it into account.

…

97-(1) For the purposes of regulation 94 (calculation of earnings derived from employed earner's employment …), … where the period in respect of which a payment is made-

(a) does not exceed a week, the weekly amount shall be the amount of that payment.

(b) exceeds a week, the weekly amount shall be determined–

[paragraphs (i) to (iv) set out the method then used]

…

(6) Where the amount of the claimant's income fluctuates and has changed more than once, or a claimant's regular pattern of work is such that he does not work every week, the foregoing paragraphs may be modified so that the weekly amount of his income is determined by reference to his average weekly income-

(a) if there is a recognisable cycle of work, …

(b) in any other case, over a period of five weeks or such other period as may, in the particular case, enable the claimant's average weekly income to be determined more accurately.

…

105-…

…

(13) subject to paragraph (13A), 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 Secretary of State 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.

(13A) Paragraph (13) shall not apply-

(a) to a claimant who … is a volunteer if the Secretary of State is satisfied … that it is reasonable for him to provide those services free of charge;

...

(15)Where a claimant is treated as possessing any earnings under paragraph … (13) 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 they were actual earnings which he does possess, except that paragraph (4) of regulation 99 (calculation of net earnings of employed earners) shall not apply and his net earnings shall be calculated by taking into account earnings which he is treated as possessing, less–

[sub-paragraphs (a) to (c) set out the relevant deductions]

…"

(e) The Income Tax (Pay As You Earn) Regulations 2003 (the tax regulations)

(Preamble)

"The Commissioners of Inland Revenue in exercise of the powers conferred on them by sections … of the Income Tax (Earnings and Pensions) Act 2003, sections … of the Taxes Management Act 1970 … , sections … of the Finance Act 1999 , …

[a] section … of the Finance Act 2002 … and sections … of the Finance Act 2003 … hereby make the following Regulations:

…

148. In Chapters 1 and 2-

'award' means an award of a jobseeker's allowance;

'claim' means a claim for a jobseeker's allowance;

'claimant' means a person who has made a claim, or who is treated for the purposes of the JSA Regulations as having made a claim;

…

'Department' means the Department for Work and Pensions …

…

'taxable jobseeker's allowance' means any amount of jobseeker's allowance which is chargeable to income tax under Chapter 2 of Part 10 of ITEPA (tax on social security income).

…

158.-...1) For the purposes of these Regulations an award ceases when entitlement to a jobseeker's allowance ceases.

…

159-(1) When an award of a taxable jobseeker's allowance ceases the Department must immediately complete form P45U."