Access to Work/Interpreting Guidance

Fellow advice comrades,

Would anyone be able to help me with an interpretation of DWP guidance on the Access to Work Scheme?

It should be noted that there is no statutory instrument underpinning this guidance - it a guidance for decision makers only.  As far as I am aware, the only law relating to the AtW scheme is the Equality Act 2010 and there are no regulations.

Here is the example:-
‘For Access to Work (AtW) purposes, self-employment is:
•operating a business either on the customer’s own account or in partnership, or working for an employer on a self-employed contractual basis;
•operating a franchised business on a self-employed basis;
•paying Class II National Insurance contributions.’

Should I read this as ‘and’ or ‘or’ after each; - or both?

The DWP state that it should be read as:

‘For Access to Work (AtW) purposes, self-employment is:
•operating a business either on the customer’s own account or in partnership, or working for an employer on a self-employed contractual basis; OR
•operating a franchised business on a self-employed basis; AND
•paying Class II National Insurance contributions.’

Are the DWP this correct? 

Alternatively - if this were a statutory instrument, how would it be interpreted?  And would it be reasonable to apply the same rule of interpretation to the guidance?

Does anyone know of a useful resource on statutory interpretation by the way?

I would welcome your views/comments.

Many thanks,

Emma Cotton
(Tax and Welfare Rights Adviser @ Equity, Trade Union)

Can’t think of a reason why this would be anything other than “or”...

Me too.  Thanks Mike.

working for an employer on a self-employed contractual basis

can, however be treated as being employed depending on what control the employer exercises/who supplies the tools and equipment/etc etc etc…

thus, in the building industry, SC60 terms (what used to be known as “the lump”

also depends on context, of course….