I have a client who works part-time and term-time only in a school, and only gets paid for the weeks they work and not during the holidays. I have calculated that she will be entitled to HB based on her income even if she worked every week.

However I believe that because she works term-time only HB should calculate her income to take account of the periods (school holidays) when she doesn't get paid. I have spoken to someone in my local council and they have said they will take the client's last two months wages and use this to calculate an award for 52wks. This seemed a bit strange because her last two months wages might not include any of the school holidays and wouldnt be a true reflection of her circumstances.

Has anyone come across a similar situation before or have any information on how HB/CTB should be calculating entitlement in these circumstances?

Fri 30-Mar-07 11:38 PM by sheffsteel

The Regs state you must use 2 monthly pay details UNLESS the wages fluctuate to such an extent that using this method would be unfair. In cases where the wages do fluctuate that you can use any method that provides an accurate and fair reflection of normal pay.

Therefore the local council are applying the rules for "normal" earners. Term time earners are treat differently.

You need to find out what the normal usual pay is, find out if overtime etc is paid. I believe there are 38 academic weeks in a 52 weeks year.

Therefore if the normal wages are
£120/wk less 15/wk tax less 5/wk ni = £100/wk

The LA should input the earned income as £100/wk x 38 divide by 52 = £73.08/wk

Alternatively the LA may choose to ask for more monthly pay slips, look for patterns in pay and maybe do an average using 6 monthly pay slips instead of the usual 2 months. As I've mentioned the Regs allow the LA to use any method which is considered fair to calculate wages when earnings fluctuate (as in the case of term time workers)

I'm not entirely sure I agree with the above response. Something is niggling that there is now some useful case law on this. I'll have a dig around and repost - even if I draw a blank.

Regards

Got it: Chief Adjudication Officer v. Stafford and Banks <2001> UKHL 33; <2001> 1 WLR 1411 (28th June, 2001)

Avilable from: www.bailii.org/uk/cases/UKHL/2001/33.html

In Banks, the issue was about the average number of hours (school worker). If a lower average was accepted, he was entitled to JSA (hours didn't exceed). Otherwise, his average hours disentitled him.

A similar provision for determining "remunerative work" exists for HB/CTB - HBR 6(3). HOWEVER, that is where the similarity ends for JSA & HB/CTB.

For JSA, there was no requirement to consider the amount of INCOME. It was common ground that Banks had no income - the only thing that mattered was hours. But, for HB/CTB, the number of hours makes relatively little difference (barring the effect on disregards). It is primarily the level of income that matters.

So, in calulating earnings, the LA must rely on HBR 29. Amongst other things, this contains provisions allowing earnings to be calculated over periods that enable earnings to be calculated more accurately, or, as is appropriate (but not more than 52 weeks).

In my view, the wording of HBR 29 is such that it will depend on all of the circumstances as to whether someone working only during term time should have their earnings apportioned over 52 weeks. It strikes me there will be occasions where it is NOT appropriate to apportion earnings over a period where the person is not working.

One very strong argument in favour of NOT apportioning earnings over a period of non-work is to make the point that HBR 6(3) is a deeming provision, whereas the issue of income is that of fact. In the school worker's case, it is a fact that during holidays s/he has no income. There are several CDs which make it abundantly clear that income MUST be attributed to the period it is in respect of - barring specific deeming provisions (e.g. Tax Credits). So, the question is whether or not the wording of HBR 29 is strong enough to consitute a deeming provision that assists in this particular case......

There are a couple of CDs where earnings have been looked at - BUT I haven't had time to check for direct relevance. Hopefully it won't be a waste of time having a look at these:

CH/2160/2006
CH/2349/2002

Regards