I have an appeal coming up concerning a self-employed worker who has no work available (he is a sub-contractor) and who has been refused JSA as he has been treated as being in remunerative work. As yet I have not been given an explanation for the decision - presumably they are averaging his hours arguing that he has a cycle of work.

I disagree as I believe that as a self-employed sub-contractor there is no cycle. Also there will never be a guarantee that there will ever be work for him to go back to, contractors may not get further contracts, neither may he.

I have got a copy of R(IS)8/95 but I would be grateful if anyone knows of any other helpful case law. Also I have tried to access Decision Makers Guide paras 20151-2 which may be of use but, waddya know, the relevant paras are missing from the guide published in rightsnet swopshop. Can anyone help?

Ta!
Paul

re paras 20151-2 of the dmg .... have been missing for some time .... checked the february 2002 update to chapter 20 and paras 20139 - 20152 weren't there even then .... not sure if ommited in feb 2002 or earlier?

this isn't very helpful, sorry, but i had a similar query last week from a client. his JSA claim had been turned down because his earnings calc'd under reg 95 exceeded JSA. reg 95 averages self-employed earnings over 1 year, unless there is some factor making a different period more appropriate - we couldn't identify one.. mesher- that- was quotes CIS 166/94 - a self-employed builder whose work had dried up, but had not ceased trading, like my client. we decided we could not argue that he was a seasonal worker, and i couldn't find a way round it, for JSA, at least. i'd be interested in any argument around it...
jj

I have since found out the DWP's reason for the decision. It is that my client had no work for the 2 week meltdown period, which is the customary 2 week shutdown over xmas in the building industry, which is akin to a 2 week holiday.

In my client's case this is wrong as his contract came to an end and there is still no work available for him. The case now seems clearer as he is out of contract, he has not entered into another one and in the previous 10 months has worked for 5 different contractors, so there is certainly no expectation of re-employment and, to my mind, no cycle.

Am I correct in thinking that the case is now more straightforward or is there something i have overlooked?

I had a similar case once. Basically, our successful argument was along these lines:

1) The interruption to the appellant's work was not part of a normal working pattern, especially when compared to previous spells of worklessness - as you have noted, even though the tribunal are bound to consider the circumstances as at the date of the decision, the fact that your client remains out of work is a strong indicator that his original claim on the grounds of unemployment was based on sound foundations and an understanding of his industry.

2) Further, using CIS/166/94, any self-employed earnings that appellant had from previous self-employment should be disregarded under reg 95(1)(b) JSA regs:

- "Hence, if with the benefit of hindsight, they could see that the interruption in work that prompted the claimant's claim was in point of fact a change that was likely to affect the normal pattern of business, it would, in my submission, be incumbent upon the tribunal to apply regulation 30(1)(b). Furthermore, if the change had produced, or was likely to produce, a substantial reduction in the claimant's income for a considerable time, then because the purpose of regulation 30(1)(b) is clearly to facilitate the most accurate possible calculation of the claimant's earnings, it would, in my submission, be appropriate for the tribunal to begin the period of assessment with the date on which the change occurred; in which case it may well transpire no earnings would fall to be taken into account"

Essentially, we argued that the client was not in self-employment, that he was not experiencing an interruption to work that was part of his normal pattern and that there was no income that fell to be taken into account once his self employment had finished. Tribunal were happy with this, once they had talked to my client and verified his work seeking activities, both in relation to his previous self-employment and in relation to his JSA claim. Good luck!!

Thanks everyone. That helps enormously, the case is much clearer in my head.

Regards
Paul

Just to update.

A reviewing officer phoned me and said that they had changed the decision to being "not in remunerative work" but wanted previous weeks accounts to assess income. I said that he shouldn't need to assess income and asked him to consider reg 95(1)(b) and CIS/166/94. RO very obliging and helpful said, no problem. Phoned me back later to say that he had confirmed with client that still out of work and had decided to pay JSA from date of claim with no need for any further inquiries.

Makes you want to just go out and hug a tree, don't it! Once again thanks everyone who contributed, including those by E-Mail.

Paul