Permitted work period?

I have a client who was on Incapacity Benefit.  She worked under the permitted work rules (PWHL) on 8/1/07 but had to stop due to ill health on 10/3/07.  She then started work again from 4/7/2008.  She informed the DWP of the work but in October 2008 they decided that she could not be treated as incapable of work under the permitted work rules because it was less than 52 weeks since the end of her first permitted work period.  They are treating her first permitted work period as extending to 52 weeks from 8/1/07 to 7/1/08.  This is being done following SS(IFW) Reg 17 (4) (iii) which reads as follows:

Exempt work.
17(4)Work which is done for less than 16 hours a week, for which earnings in any week do not exceed £93.00 and which:
a) is done during a 52 week period beginning on the first day on which the work is done, provided that -
iii) not less than 52 weeks have elapsed since he previously did specified work

Reading the regulations I can’t see that it is right to treat the end of the 52 week period as the last time my client did specified work.  However, I can see from the Decision Maker’s Guide that this is how it has been interpreted. 

Am I wasting my time challenging this? The DWP have only just got round to looking at their decision again following her appeal in January 2009 and it has now been sent to the Tribunals service for listing.

hi eel

could you just clarify when she started work again? if it was in july ‘08 as you say, then outside 52 weeks from when started in jan’07 so should be ok either way, unless i’ve misunderstood.

cheers ros

My understanding is that when you start working the 52 week permitted work period begins even if you quit after a week or so. In your client’s case this started on the 8/1/2007 and ended on the 7/1/2008. In order to carry out any more permitted work you either need a break from it for 52 weeks or alternatively to break your claim for ESA for more than 12 weeks.

Since your client’s previous PW period ended on the 7/1/2008 she cannot do another period until 6/1/2009.

Unfortunately this issue has been ammended in CPAG (pg 159) with the last 2 Welfare Rights Bulletins so an unchanged CPAG book won’t be up to date.

barbara - 16 September 2010 03:22 PM

Since your client’s previous PW period ended on the 7/1/2008 she cannot do another period until 6/1/2009.

Unfortunately this issue has been ammended in CPAG (pg 159) with the last 2 Welfare Rights Bulletins so an unchanged CPAG book won’t be up to date.

So it seems that you agree with the DWP.  I don’t have the Bulletins to look up the amendments I’m afraid but I still don’t quite understand how where the regs say “52 weeks since you last did such work” that can be translated into 52 weeks since the end of a previous permitted work period.  Do the amendments explain this?

Thanks for your help.

The Decision Makers Guide was amended in February 2010 with regard to exempt work for ESA.  Presumably the Department is interpreting the ICB Regs in the same way as they are identical on the exempt work provision at reg 17(4)(a).  The relevant provision, as cited above, is in the following terms:

“not less than 52 weeks have elapsed since he previously did specified work”.  The DMG interprets that provision in the following way; quoting directly:

“it is at least 52 weeks since the end of the period in which they previously did specified work”.  Now the DMG references neither amending regulations on the point nor any case law which bears that more narrow interpretation than the one contended for by Eel and Ros.

Now I have not seen the mentioned Welfare Rights Bulletins so I don’t have the benefit of CPAG’s view of the validity of the Department’s interpretation, which seems a bit of a stretch to me.  However, there might be in existence clear evidence which can be legitimately used as an aid to statutory interpretation (in certain circumstances, quotations from Hansard, for example) that I am not privy to, which clearly demonstrate that the Department’s interpretation reflects the original policy intention and is, therefore, the more legitimate one. 

But it seems to me that as the matter is yet to be properly tested at the upper tribunal or in the courts, appeals on this point should be pursued on a case by case basis until the matter is finally disposed of once and for all.

You need the whole of reg 17(4) (a) or you miss a crucial point:
...is done during a 52 week period beginning on the first day on which the work is done, provided that -
(i) the person has not previously done specified work,
(ii) since the beginning of the last period of specified work, he has ceased to be entitled to a relevant beenfit for a continuous period exceeding 8 weeks, or
(iii) not less than 52 weeks have elapsed since he previously did specified work.

As I read this wording, (ii) and (iii) are alternative ways of starting a new 52 week period running: EITHER it is at least 52 weeks since doing any previous specified work OR there has been a period right off benefits of at least 8 weeks. The “relevant benefits” are IB, IS, SDA, HB or CTB or credits. They are not needed if it is the first time the claimant has done specified work because then (i) applies.

The work is not done FOR a 52 week period but DURING it.  If there has been a previous spell of work then one or other of (ii) or (iii) is the only way of setting a new 52 week period running.

Hansard wouldn’t help. It only applies to statutory provisions where in the course of the debate on the Bill Ministers have given asssurances to Parliament about the meaning of a particular provision in the Bill. Hansard can then be used to assist with interpreting the provision if its meaning is completely ambiguous. Since Regulations aren’t debated in Parliament there is no such debate. The nearest thing would be the explanatory memorandum presented to the Social Security Advisory Committee and the Standing Committ on Statutory Instruments.

On the face of it, Reg 17(4)(a)(iii) *seems* to suggest that the 52 week “gap” is referenced to the last day of work rather than a complete 52 week period.  However, in “iii”, the term “specified work” is used.  “Specified work” is expressly defined in para 8 of the same regulation as meaning:

“(a) work done in accordance with paragraph (4)(a), or
(b) work done in accordance with regulation 17(1A)(a) as then in force”

That doesn’t appear to be terribly helpful as it seems to create a bit of a circular paradox.  But, I can see the DWP being able to argue that “(4)(a)” must be read as a whole and that it means a 52 week period, once started, cannot stop - i.e. the meaning of “specified work” is reference to “whole” 52 week periods.  On the other hand, that could lead to somewhat proposterous scenarios such as someone starting PW in all good faith, but has to stop in “week 1” due to, say health”, is then prevented from restarted PW for a further 101 weeks.

It’s notable that the meaning of “specified work” is reference specifically to para (4)(a); not simply (4) and not any of the sub-paras.  That *may* be seen as significant in terms of the dissection of the meaning.

However, I think it’s sufficiently anbiguous to argue that:

1)  17(4)(a)(iii) is referenced to the actual date last worked; and (in the event of the DWP arguing otherwise)
2)  Any other interpretation would lead to perversity (e.g. the “101 week” example).

Personally, I wouldn’t bet a cent either way on the outcome at UT.

Yes, I know that regulations are not debated in Parliament, I merely used the example (hence the use of the phrase, for example) of Hansard to illustrate the fact that material (other than, for the purposes of this exanple, case law) external to the statutory provision can be used as an aid to the interpretation of that statutory provision, where the relevant circumstances apply.  Admittedly, the use of Hansard is not going to be of help in this case and I could have been clearer.

I know the regulation has to be read as a whole but I don’t think the phrase “since he previously did specified work” can bear the interpretation the Department contends for. While the phrase “is done during a 52 week period beginning on the first day on which the work is done, provided that”, simply makes it plain that the maximum length of any one period of permitted work can only be 52 weeks. 

Reading the regulation as a whole, on the facts presented in this case, there has been a previous period of specified work so (i) does not apply.  There is no suggestion of a break in claim so (ii) probably does not apply.  That leaves us with (iii).  So my original point remains.  Is there any authority (which prompted a change in the guidance) for the proposition that the 52 week ‘gap’ period begins at the end of the last 52 permitted work period or begins when the claimant last did any work within that period?  If the draftsman meant “since the end of his last period of permitted work” or some such similar phrase he could have easily said so.

Thank you all for your thoughts. 

I’ll take the case forward on the grounds that where reg 17 (4) (iii) says “not less than 52 weeks have elapsed since he previously did specified work” there are no grounds for reading that as “not less than 52 weeks have elapsed since the end of the last period of specified work”. 

It seems to me that the fact that the preceeding point uses the phrase “since the beginning of the last period of specified work” supports the case that if they had meant to say “since the end of the previous period of specified work” they would or should certainly have done so.