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Edinburgh lawyers win golf caddie benefit appeal

Judges at the Court of Session have ruled in favour of a professional golf caddie whose application for jobseeker’s allowance had been rejected by the Department for Work and Pensions (DWP). At issue was the question of whether the self-employed seasonal worker, whose spring and summer work had ended for the year, should be regarded as being ‘in remunerative work’ or not.

According to Russell Eadie of Morisons Solicitors, the legal firm behind Employment Law Edinburgh, and the firm who acted on behalf of the caddie involved, the decision has important implications for self-employed seasonal workers in the UK.

Self-employed caddie

The case concerned caddie Douglas Saunderson, who had worked at the Old Course in St Andrews for a number of years. He offered his services as a professional caddie on a self-employed basis during the spring and summer months when the course was at its busiest.

Mr Saunderson was not paid by the manager of the golf course, but received a fee from the golfers who engaged his services. A percentage of this was paid to the St Andrews Links Trust, which managed the course and authorised Mr Saunderson to offer his services there.

There was no obligation on the Trust to authorise Mr Saunderson to work at the course from year to year - and no obligation on Saunderson to offer his services to them.

Application of jobseeker’s allowance

Mr Saunderson applied for jobseeker’s allowance in October 2007, when his caddying authorisation for that year came to an end. His application was rejected by the DWP.

He then appealed the decision to the First-tier Tribunal in Kirkcaldy, but the appeal was disallowed. This was because, according to the Court of Session’s written opinion:

"the appellants were self-employed seasonal workers with a recognisable cycle of work of one year and were either in remunerative work or their average earnings over the course of a year were in excess of their applicable amount or both of these. That fact or these facts disentitled the appellants to the benefit claimed and the appeals were accordingly disallowed."

Mr Saunderson appealed against this decision to the Upper Tribunal, but again with no success. He finally appealed to the Court of Session.

Recognisable cycle of work

In considering his case, the Court of Session judges looked back at the reasoning for the original decision by the DWP. This boiled down to the vexed question of whether Mr Saunderson was in remunerative work at the time of his application.

There is a long definition of ‘remunerative work’ in the Jobseeker's Allowance Regulations 1996. The initial criterion is that it covers “In the case of a claimant, work in which he is engaged or, where his hours of work fluctuate, is engaged on average, for not less than 16 hours per week.”

The regulation then details how the hours of work can be calculated, depending on whether there is a recognisable cycle of work, or whether the hours fluctuate.

According to the DWP, Mr Saunderson, as a self-employed seasonal worker with a recognisable cycle of work covering more than 16 hours a week - albeit currently going through an inactive period - was indeed in remunerative work. He was therefore not entitled to jobseeker’s allowance.

Court of Session decision

Not necessarily so, said Lord Eassie, giving the opinion of the Court of Session that the DWP and the Tribunals had in fact addressed the wrong question:

“The notion of a "recognisable cycle of work" comes into play for the particular purpose of averaging the weekly hours of work of the person concerned only once one has made the primary, or leading, finding that the person concerned is "in work”,” he said.

Nor was the fact that Mr Saunderson was a self-employed, rather than employed, seasonal worker relevant.

“The categorisation of a claimant's limited seasonal activity as being "self-employed" does not in itself detract from the need to reach a proper answer on the primary question whether, the seasonal activity having come to an end, the claimant may yet properly be said to be "in work",” said the judge.

The Court therefore referred the case back to the First-tier Tribunal to “consider the primary question which it ought to have considered”.

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