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Seasonal workers and a ‘recognisable cycle of work’
Our client is a seasonal worker in the holiday industry. He worked from March to November, and then his job ended as the business closed down for the winter. He is currently not employed. He was dismissed from the job and will have to reapply for it next year.
He tried to claim JSA but was advised to claim PC by the Jobcentre as he has attained the requisite age.
His PC has been calculated as £3.49 a week, on the alleged grounds that his earnings should be averaged over the whole year. This means he now has no means to survive the winter.
It appears this is happening to quite a few people in this situation, with similar serious consequences.
If this is correct, it means that people choosing to take this kind of job could face much higher than expected marginal withdrawal rates: around 130% in the case of this client. If this decision stands, he will lose not only the equivalent of his year’s wages, but will end up a further £23 worse off over the year than if he hadn’t worked at all.
We have asked the Pension Service to look at this again urgently, particularly with regard to R(JSA) 1/07 which seems to rule out their interpretation. They claim this it is based on new instructions from above.
If they do not revise, is there a possibility of bringing judicial review on the basis that an appeal would not be an effective remedy, and the decision is based on reasons already established to be an error of law?
hi mr finch -
i’m not sure that an appeal wouldn’t be an effective remedy - i’d have thought you’d stand a good chance of success given (R(JSA)1/07.
also, a recent court of session judgment - Saunderson v The Secretary of State for Work and Pensions - supports your client’s position -
here’s rightsnet news story on it -
http://www.rightsnet.org.uk/news/story/whether-seasonal-worker-was-in-remunerative-work/
cheers ros
...
[ Edited: 7 Jan 2013 at 05:47 pm by Roger ]The difficulty with appeals it is that they are not an effective immediate/short term remedy and I suspect this is what you mean. Unfortunately though, because the remedy is there and it is effective there is nothing to JR.
He has had food vouchers already and has no means to survive until an appeal is heard.
How old is your client? Potentially he could be be over Pension Credit qualifying age but under State Pension Age and thus potentially entitled to claim Contributions Based JSA (which would not be subject to all the shenanigans re averaging out his wage). He should be able to continue his PC appeal alongside this claim I think(?). Obviously this would depend on his contribution record over the last couple of years although given the amount they have reduced his PC by you would hope that he was making enough conts.
If your client is over State Pension Age then is there a reason why he isn’t getting it? If he was still working March - November at c65 then you’d hope that he would have some kind of contributions record.
If he is completely stuck then my limited contact with the Pension Service complaints service has actually been quite positive. Make a complaint, get somebody to look at the situation and the relevant case law, if they say their hands are tied get them to pass it to the Tribunals Service immediately and then make a request for an expedited hearing.
Also make sure that his local Social Services team is aware of him as they may be able to assist with emergency provision.
One other possibility is that your client may have been getting partial HB and CTB whilst he was working. If this is the case if may be possible to get these claims revised upwards to full awards, basically on the same grounds that have been used against your client in the PC claim. You may have an issue with missing the dispute deadlines but I’d argue that your clients situation is a pretty good example of having good cause.
That is just off the top of my head though - I haven’t fully thought it through but thought I’d put it out there for consideration.
How old is your client? Potentially he could be be over Pension Credit qualifying age but under State Pension Age and thus potentially entitled to claim Contributions Based JSA (which would not be subject to all the shenanigans re averaging out his wage)
Excellent idea - this may be the way to go.
One word of warning. For JSA claims, watch out for the Saunderson judgement in that this dealt with a case prior to the removal of reg 51(2)(c) of the JSA Regs. This is important as to how many weeks in the year should be used as the divisor to determine how many hours a person was deemed to work each week in the cycle to see if he is to be deemed to be in remunerative work or not. This is separate from the calculation used to apportion earnings. That will not have been calculated for PC as there is no bar to being in remunerative work.
Furthermore, it also has to be established whether your client was actually in a recognizable cycle of work. If he wasn’t then this changes the calculation yet again.
We had a call today informing us that the decision has been overturned after the department’s legal team looked at the case - client very relieved.
However we think this might still be happening to other people.