Client claimed CA and reduced her hours of work from 1 August 2008 to fit in with her caring responsibilities. She has been working 12 hours per week at a rate of £7.23 per hour since then and this is a permanent arrangement. Her weekly rate is therefore under the earnings limit for CA.

She works weekends and, because there were 5 weekends in August, she has been paid 5 weeks’ wages, i.e. 60 hours. CA have simply multiplied this figure by 12 and divided by 52, which is not representative of her earnings because in months such as September and October she will be paid for 4 weeks’ work, i.e. 48 hours.

I have submitted that earnings should be calculated in accordance with Reg 8 (3) of the Social Security Benefits (Computation of Earnings) Regulations and CG/4941/2003 which confirms that the method used to assess weekly earnings should be that which most accurately reflects them. I have not yet had a decision, but have been told that they cannot deviate from the method of multiplying by 12 and dividing by 52. Is this correct and is it always the case that they have to take the previous month's earnings into account? This means that they are not paying from August because she was working full-time and earning over the limit in July.

I am advising her to make a new claim while we are awaiting the outcome of this challenge, but if their method of calculating is correct she would not fit the earnings criteria until October, when her September wages are used: they average out at under the limit if the x12 divided by 52 method is used.

Urgent help needed!

Thanks, Anne

Hi Anne

i hope this helps but I appealed a couple of years ago for a client who had CA refused stating that her earnings where too high. I argued that as she worked and was paid for school time only then the income had to be calculated per annum and not for the last month only. that this was an accurate assessment of her income, any way it was won on revision.

Good luck but I think you're on a winner!
cheers helen

Thanks for that, Helen. Client rang today saying the reconsideration has been unsuccessful. Have asked him to request written reasons.

Not sure but I seem to have in the recesses of my mind that term-time workers are treated differently from other mortals. Would be interested in any regs or case-law you used, to see if I can apply it to my case.

Regards

Anne

Under the Computation of Earnings Regulations eranings can be averaged over a longer peiod than a month if that allows the income to be calculated more accurately (regulation 8(3)), and I feel it would be unfair not to apply it in this case. Monthly pay and weekly earnings do not fit together well - most employers paying monthly work out the pay over the full year and pay one-twelfth per month. The arrangement you describe is a silly hybrid ill-adapetd to coping with two different pay periods,

Have you seen CG/607/2008 which vindicates the argument by holding that weekly payments which happen to be paid monthly should be counted as weekly? It's in Briefcase and should help a lot.