CP 1792 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	The appeal is allowed. The decision of the tribunal is set aside. I refer the decision to the tribunal to take the decision again. 

2	The claimant and appellant (“Mr S”) is appealing with leave of Commissioner Lloyd-Davies against the decision of the Birmingham tribunal on 20 10 2006 under reference 024 06 01650.

3	DIRECTIONS FOR THE REHEARING

A	The rehearing will be at an oral hearing. 
B	The new tribunal may be heard by the previous tribunal chairman or a new tribunal chairman. The tribunal properly consists of one member.
C	The claimant does not have a representative, and is advised to seek the help of a Citizens Advice Bureau, welfare rights office, solicitor or other expert adviser with the rehearing of this appeal.
D	If the claimant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision. 

These directions are subject to later change by a district chairman.

REASONS FOR THE DECISION

Background
4	Mr S was born in 1937. On 26 09 2005 he claimed his state retirement pension on standard form BR1, ticking the box indicating that he wanted to claim from the earliest possible date. He was 68, so over state pensionable age. He was also, as his claim had been deferred, entitled to increments to his pension to reflect the delay in claiming.

The decision under appeal
5	The local pension centre, acting on behalf of the Secretary of State, awarded him a pension the following day, 27 09 2005. It was able to act promptly because someone in the office downloaded a computer printout from the interface with the computer records held by the National Insurance Contributions Office (“NICO”) of her Majesty’s Revenue and Customs (“HMRC”). He or she took the relevant figures from the printout and updated them for the benefit year starting in April 2005. The amount of pension awarded was £98.76 weekly. The precise wording of the decision is set out in paragraph 12 below. It was payable from 6 04 2005.

6	By coincidence, and unknown to the local office, the Pension Service in Cardiff chose the same day to send Mr S a letter. This invited him to pay additional Class 3 contributions in respect of the contribution year 1996/97. This is recorded in the almost impenetrable abbreviated code used in the computer screen prints of Mr S’s record downloaded into the papers. The letter to Mr S did not surface as a document relevant to this appeal until he gave his copy to the tribunal months later. 

7	  Mr S appealed. He objected that he was unable from the documents provided to him to see how the decision was reached. He challenged, among other aspects of the decision, the actual contributions record and the availability of the right to pay voluntary contributions. I assume that challenge to be a reference to the letter received from the Cardiff office.

8	The local office reacted by requesting copies of Mr S’s contribution record. That came in two standard forms:

•	RF1 is a standard form on which all official National Insurance contribution records were kept in handwritten form for a contributor up to April 1975 
•	RD18 is a standard computer generated form showing the database records held by the NI Contributions Office of contributions paid and credited, and earnings credited, for a contributor since April 1975.

9	What the local office did with these forms is not clear. An officer stated on 9 01 2006 that he refused to reconsider the decision awarding Mr S his pension because “contributions paid by Mr S have been taken into account and the correct amount of state pension has been paid accordingly.” That did not address any of Mr S’s points.  Nor is it obvious why the officer told Mr S that he refused to reconsider a decision that he had clearly reconsidered. Mr S maintained his appeal.

The tribunal decision
10	To cut a long story short, the matter finally came to a tribunal, after postponements and adjournments (including one by a tribunal on 27 07 2006) on 20 12 2006. None of the loose ends left by these earlier discussions were tied up. The tribunal had directed a further submission from the Pension Service but received none. 

11	The tribunal’s full decision (there was no statement of reasons) is:

“The decision of the Secretary of State issued on 27 09 2005 is confirmed.

Mr S has not shown that there were additional qualifying years which have not been taken into account in calculation of his State Retirement Pension. I am therefore unable to change the decision under appeal.

Mr S is in reality challenging not the DWP decision but the contribution record on which it is based. The tribunal has no jurisdiction over this, and to challenge this he must make a formal challenge to the Contributions Agency decision. This is part of HM Revenue and Customs, who will be able to advise him about the appeals process. If he receives a favourable determination from them, he can ask the DWP to review the above decision as having been made in ignorance of a material fact.”

The tribunal refused to issue a statement of reasons because it considered Mr S’s application for the statement to be late. Mr S disputed that. However, as the reasons given by the tribunal are plainly wrong in law, nothing turns on that refusal.

12	The tribunal decision is wrong in law in part because of the terms of the official decision for the Secretary of State that it said it was confirming. The decision was:

“Mr S is entitled to a Category A Retirement pension from and including 6.04.2005, payable from 11.04.2005 at the weekly rate of £98.75. This is made up as follows: -

A basic rate Category A retirement pension of £74.67 (This is based on the assumption that the qualifying years in the customers working life is 91% of the number of qualifying years needed for full rate)

	An additional pension of £2.10

A graduated retirement benefit of £4.47 (This is based on the assumption that this is the amount due for 45 units of graduated contributions paid (or treated as paid) by the customer…”
(emboldening mine)

The decision then sets out the increments payable to Mr S with each of those three elements of his pension because he claimed it after he was 65. 

13	I have emboldened the term “assumption”. It is clear that the decision is based on a series of assumptions. There is nothing unusual about that. Most initial retirement pension decisions made by the Pension Service are made on similar assumptions. Those assumptions are based, as here, on the informal computations done by computers when a pension claimant’s records are checked. But they are assumptions, not decisions. If challenged, they must be checked and either confirmed or changed. Mr S challenged them in his letter of appeal and he maintained that challenge. The tribunal was wrong in law to make any decision without either confirming that the assumptions were correct or replacing them with findings (or taking the necessary steps for that to be done).

14	The tribunal was also wrong in law in saying it was for Mr S to take things further with regard to contributions. The tribunal itself has a duty under regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 to adjourn the case without decision and refer the matter to the Secretary of State for onward reference to HMRC. Had the tribunal followed the mandatory Regulation 38A procedure it would not have made the other mistake, because it would not have made a decision.

15	The tribunal made a third mistake in law. It did have jurisdiction to take the issue of credited contributions further. But that aspect of the case was buried away in the fine print of the papers and was not a reason for the tribunal decision.

16	For those reasons, the decision of the tribunal must be set aside.

The current position
17	When the matter came to the Commissioners, it was in something of a mess. Mr S appealed because the tribunal on 20 12 2006 had refused jurisdiction after the tribunal on 27 06 2006 had accepted it. He objected to the membership of the tribunal. He also objected to the decision that he could not receive a statement of reasons. And he sent in copies of evidence that he had sent in to the tribunal but which it is not clear from the record of proceedings were seen by it. 

18	As there were a number of matters left unclear, even after taking into account the record of proceedings and decision of the tribunal, I issued full directions to both parties to clarify what was still in dispute between them and what evidence was available about those disputed issues. I also issued a draft decision indicating relevant issues on the evidence as I then saw it. I have received full replies from the parties to the extent that either of them felt they could make them. I have not repeated the draft decision as several issues arose from those submissions. 

19	The following points are now clear:
(a)	Mr S was at all times employed, unemployed, sick, or a student – he was not self-employed
(b)	Mr S’s working life was from 1952-53 (the year in which he became 16 and entered into insurance) to 2001-02 (the year before the year in which he became 65)
(c)	He is entitled to full state pension if the records show that his contributions establish that a year is a qualifying year in 44 of 49 of those years
(d)	Only one year of the years to 1975 shown on the RF1 was a deficient year, and that was when Mr S was a student; for practical purposes the records up to 1975 are not in dispute and Mr S has 22 qualifying years recorded in the period
(e)	Mr S’s record is only relevant to the year 2001-02 as he was of pensionable age in later years, so the years from 2002-03 cannot be qualifying years 
(f) 	The years from 1975-76 to 2001-02 are shown by the RD18 to include 18 qualifying years, and 9 non-qualifying years, which are: 1977-78, 1980-81, 1981-82, 1982-83, 1983-84, 1984-85, 1985-86, 1988-89, and 1996-97
(g)	There is no suggestion that Mr S has not been recorded as paying contributions for any week in those years in which he (or, rather, his employer on his behalf) actually paid Class 1 contributions 
(h)	Mr S is of the opinion that he has now paid the voluntary Class 3 contributions for 1996-97 he was invited to pay in September 2005, although if that is correct it has not been recorded in any official recalculation of entitlement at this stage; there is no other outstanding question about payment of voluntary Class 3 contributions for those years 
(j)	If Mr S is right about 1996-97, then the evidence shows that he has 22 qualifying years up to 1975 and 19 years from 1975, a total of 41 qualifying years
(k)	Mr S’s record is deficient by three qualifying years, and the years that could be further qualifying years are those identified in paragraph (f).

What is in issue?
20	There are no outstanding questions about: 
•	Liability for and payment of Class 1 contributions; 
•	Class 2 contributions; 
•	Further payment of Class 3 contributions. 
For Mr S to qualify for a full pension, it must be established that he is entitled to be credited with additional contributions or earnings, in three further years from the following: 1977-78, 1980-81, 1981-82, 1982-83, 1983-84, 1984-85, 1985-86, 1988-89. If Mr S has a full record for any of those years, then his appeal succeeds to that extent. If that is shown for three or more years, then it need not be shown for any further years as Mr S then succeeds in full.

21	This is clearly an areas where the analysis of the House of Lords in Kerr v Department of Social Development (NI) [2004] UKHL 23 applies and where questions of burden of proof are in part artificial. The question is therefore not what Mr S can show, but rather what does the full evidence now available both from Mr S and official sources show to have been the situation in those years, judged on the standards of probability or likelihood. 

The available evidence 	
22	The RD18 record of Mr S’s contributions from 1975 is common ground as a minimum level of contributions and credits. It shows:
1977-78	29 credits certified by the Employment Service
1980-81	34 credits certified by ADP Reading  
1981-82	26 credits certified by ADP Liverpool 
1982-83 	24 credits certified by ADP Reading
1983-84	13 credits certified by ADP Reading 
1984-85	28 credits certified by ADP Reading 
1985-86	42 credits certified by ADP Reading 
1988-89	35 credits certified by ADP Reading
This shows that in each of those years Mr S received a substantial number of credited contributions (or earnings). But in all cases the total that fell some way short of being sufficient to make the year a qualifying year. It also shows that procedures for granting Mr S credited contributions or earnings were not only in place but operating to a substantial extent in Mr S’s favour in each of those years. And it shows that to the extent that he needed to claim those credited contributions to obtain them, he must have made claims. 

23	In his submission to the tribunal, Mr S produced a schedule of daily records of his work activities from April 1983 to August 1989 in highly abbreviated form. It is almost as cryptic as the Departmental records. The copy in the papers also suffers from not being photocopied very well. It gives some evidence about each day during that period by reference to abbreviations. The schedule was before the tribunal, and the tribunal examined Mr S about it. There is no record of any findings made. 

24	The schedule raises issues about entitlement to credited contributions, but I unable to relate the schedule to the evidence in the RD18 in any meaningful way. For example, in 1985-86 Mr S was credited with contributions in most weeks (42 of 52 or 53). That suggests he signed on (for unemployment benefit) in most weeks. But the schedule details for 1985-86 repeatedly say “Est – not signed” and records hours of work done in a week. Further facts need to be found about this.  

25	I directed the Secretary of State to make enquiries from the Jobcentre to see if any other records were still available from that year either in paper form or on a computer. There are no computer records for the period before 6 10 1996, when jobseeker’s allowance records started. The Secretary of State was not able to produce anything useful from any other records. In part, these were the records of the then Department of Employment. Mr S argued that they should have his records. I have to say that I see no strong reason why one should expect to find records going that far back about social security benefits repealed or abolished over 20 years ago. 

26	The position in social security law about the destruction or loss of old records is clear. In R(IS) 11/92, after an extensive discussion of relevant authority, Commissioner Mitchell set out his conclusions in respect of missing documents at paragraph 39:

	“I set these out thus:
(a) None of the documents which are now “missing” was destroyed with any intention of destroying evidence.
(b) On the contrary, most, if not all, of such documents as would (if extant) bear upon [the current decisions under appeal] were destroyed pursuant 	to routines prescribed in order to keep the storage of documents within manageable proportions.
	(c) Those routines are not, of themselves, unreasonable. 
(d) No reasonable person would have supposed that the documents with which this particular case is concerned would ever be required again
(e) In consequence, no presumptions as to the contents of those documents fall to be made (in either party’s favour).
(f) Secondary evidence, whether written or oral, is admissible as to what the original documents contained.
(g) Such secondary evidence falls to be evaluated upon the principles applicable to evidence in general.” 
	
That approach has been followed by social security commissioners since. It is trite law that no adverse conclusion is drawn from the routine destruction of social security documents under a proper policy for destruction, and that relevant secondary evidence as to content can be relied on. This applies unless the policy of destruction is itself open to challenge or unless there is evidence that records are destroyed otherwise than during routine procedures as, for example, after a specific request that they be produced had been made or during an ongoing appeal.

27	I am satisfied that the Secretary of State has made all reasonable endeavours to check the available records, that any destruction that has occurred is consistent with the accepted approach set out in R(IS) 11/92, and that therefore any missing documents should be dealt with in accordance that approach. Further, I also take the view that any additional duty on the Secretary of State following from the approach set out in Kerr v DSDNI has also now been met. 

28	Save for any oral evidence from Mr S, any further documentation he has to support his schedules, or any additional evidence he can produce from any third party, the available evidence has been assembled.

The law
29	  I asked the Secretary of State for a submission about the relevant law dealing with credited contributions for both sickness and unemployment for the years before 1986-87. It is in the form in which the relevant regulations in the Social Security (Credits) Regulations 1975 (“the Credits Regulations”) were in that particular year. But there is no readily accessible statement for each year of those Regulations published in any current publication or official guidance and the secretary of state's representative was not able to offer me much help. Rather than delay matters further, I have therefore looked at the matter myself.   

30	The relevant regulations were: regulation 3 (general provisions relating to the crediting of contributions) and regulation 9 (credits for unemployment or incapacity for work).  Although those Regulations are still in force, they have been repeatedly and heavily amended and are now far removed from the original provisions. Yet, as far as I can see, the secretary of state's representative is correct in arguing that each amendment applies only to later years with no retrospective effect, so leaving the original Regulations as amended to the individual years in question as the relevant rules for each year.   

31	As there is no published reference source, I have set out the relevant parts of the Credits Regulations as they apply to the award of credited contributions for periods of unemployment before the introduction of jobseeker’s allowance in 1996, in the annex below. I have added notes about amendments to the Regulations between 1975 and 1986. 

Was a claim needed?
32	There is nothing in those Regulations requiring any claim for credited contributions for periods of unemployment. The wording of the Regulations is entirely in terms of entitlement. This is highlighted by the requirement that a claimant give the Secretary of State notice in writing under Regulation 9(8) if the claim is in respect of a period when the claimant would have been entitled to either sickness benefit or maternity allowance but did not claim that benefit or allowance within the prescribed time for that claim. In those cases the claimant had to give the Secretary of State notice in writing of the circumstances not later than “the end of the benefit year immediately following the tax year in which the day fell or within such further time as may be reasonable in the circumstances of his case”. 

33	The Credits Regulations for the period provide that:
(a) if a credit is claimed for a period of sickness, then either there must have been a claim for sickness benefit or the claimant must have given the relevant notice to the Secretary of State, and 
(b) there was no claim procedure for, and accordingly no time limit on, establishing entitlement to credits linked to periods of unemployment.

34	 It follows that it may safely be assumed 20 years later that there are no outstanding periods of sickness for which either benefit was claimed and for which benefit was awarded but no contributions given or benefit was not claimed but notice was given to the Secretary of State. Nor has Mr S contended otherwise. 

35	It also follows that there is no necessity for decisions about, and no time limit for claiming or awarding, credited contributions for any period of unemployment before 6 10 1986 for which it can be shown that a claimant was entitled under the then Regulations but which were not awarded or refused at that time.    

Decisions and appeals 
36	Social Security Act 1975, section 93(1)(b) provided that it was for the Secretary of State, and not an insurance officer, to decide whether contribution conditions were satisfied at that time. The section does not expressly deal with decisions about credits, but must be regarded as dealing with any decision under the Credits Regulations. This is because credits were awarded only to the extent that an individual did not otherwise meet the relevant contributions conditions for a benefit. 

37	Any decision taken by the Secretary of State could be appealed only to the High Court on a point of law, and could not be appealed to a tribunal: section 94 of that Act. That remained the case throughout the period relevant to this appeal. 

38	That is no longer so. It remains for the Secretary of State to take the decision, because the offices of insurance officer and then adjudication officer have been abolished and the legislation changed since 1988 to make all decisions those of the Secretary of State. Since the repeal of the 1975 Act and its successor the 1992 Act, the 1998 Act determines the route of appeal. This is to the social security tribunal by reason of section 8(1)(c) and section 12(1)(b) of, and Schedule 3, paragraph 17 to, the Social Security Act 1998. 

39	This is not a matter for HMRC and NICO. It remains a matter to be decided by the Secretary of State. And any decision of the Secretary of State about contribution credits that is open to appeal is now open to appeal to the social security tribunal and not the High Court.

The position in this appeal
40	 There are now no outstanding issues in this appeal that are matters for decision by NICO. The issues still to be determined in the appeal are for decision either by the Secretary of State or the tribunal. 

41	Have any decisions been taken by the Secretary of State with regard to Mr S’s entitlement to credited contributions for the non-qualifying years? The Secretary of State submits that any decisions about such credits will have been taken, and the period for any appeals from such decisions will have expired. But that is an assumption. There is no available record to indicate that any claims for credited contributions were made, or if made were refused. And there is no available evidence that any decisions were made otherwise than in respect of a claim. 

42	I do not accept that in this case it is appropriate to assume that decisions have been made in the absence of any evidence about any such decisions. This is because there was no need for Mr S to make any claim at that time, no reason why any decision should have been taken, no procedure under which it was required to be taken, and no time limit within which it was to be taken. Nor am I aware of any evidence that the Secretary of State had a standard practice of taking such decisions. My experience in this jurisdiction is that such decisions were not taken as standard practice. So I see no reason in this particular context for assuming that a decision will have been taken by a decision maker acting for the Secretary of State. There is no normal practice about which to make any presumption of the normal course of events being followed. On the contrary. The decision maker acting for the Secretary of State has followed in this case a standard practice inconsistent with the submission of the secretary of state's representative. This is the practice of assuming, for the purposes of retirement pension awards, that the RF1 and RD18 contribution records are correct and waiting for a challenge to that assumption. Only when a challenge is received is the record itself examined for accuracy. And only then are formal decisions about the contribution record made.

What should happen now? 
43	This is one of the kinds of case to which the guidance of the Tribunal of Commissioners in R(IS) 2/08, following and reinforcing the guidance of the Tribunal of Commissioners in R(IB) 2/04, applies. In R(IS) 2/08, the Commissioners gave the following guidance:
 	
“32.	… In R(IB) 2/04, the Tribunal of Commissioners held that, on an appeal from the Secretary of State, a tribunal has the power to cure any defects in the decision of the Secretary of State and to give the decision the Secretary of State should have given. Therefore, the task for the tribunal in this case was not to consider the nature of the decision actually given by the Secretary of State but was simply to decide what decision the Secretary of State should have given, taking account of any new evidence available to the tribunal. We suggest that it was unnecessary for the Deputy Commissioner to refer the case to a tribunal and that it would have been preferable had he determined the issue himself.”

44	I do not consider this to be a case where I should take the full decision that the tribunal should have taken. That may require findings of fact about periods of unemployment week by week over several years, including findings about weeks in which Mr S did limited amounts of work. I am satisfied that all official evidence is now available, and the appeal must involve the further evidence of Mr S if the case is to move forward. That is better dealt with locally by a tribunal. That tribunal should deal with the full decision before it, and it must then confirm or change the assumptions in the decision of the Secretary of State to findings of fact on the matters assumed and then a decision on those findings. 

Guidance to the tribunal
45	I must also deal with another ground of appeal. Mr S complained that the tribunal, consisting of a legal chairman sitting alone, was not properly constituted. He gave no reason in law for that assertion. It is wrong. The composition of a tribunal is defined by regulation 36(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 as consisting of a legal chairman sitting alone unless various exceptions apply. None apply to this appeal.

46	There is also no reason why this appeal should not be reheard by the chairman who chaired the previous tribunal, as that tribunal made no findings of fact and this decision provides guidance on the relevant issues of law. 

47	The relevant regulations for claiming credits for periods of unemployment for a man (there are additional rules for women) for the years in question in this appeal are regulation 3 and regulation 9(1), (2), (3), (4), and (7). I have set them out in the annex to this decision, together with a note about amendments. 

48	The task of the tribunal is to consider whether the assumptions made in the decision of the Secretary of State of 27 09 2007 are correct. In the specific context of this case, I direct the tribunal to assume that there are no outstanding questions requiring resolution by HMRC. The tribunal must consider and determine whether the record of credited contributions for periods of unemployment shown in the RD18 for the years shown not to be qualifying years in paragraph 22 above is correct. To do this it must consider if the evidence as a whole suggests that Mr S is probably entitled under regulations 3 and 9 of the Credits Regulations to any more credited contributions than those shown in the RD18. If the tribunal confirms those records for all those years, then it is to confirm the outcome decision of the Secretary of State without reference to any assumption. If it finds that the record is wrong for any year, and the error is such that Mr S was entitled to at least 50 credited contributions in any year, then it is to make a new decision accordingly, again without reference to any assumption.  

49	I have already issued directions to the Secretary of State to ensure that all official evidence that is available has been produced, and the secretary of state's representative has responded fully to those directions. No further direction need be made to the Secretary of State about evidence. Mr S should ensure that he provides the tribunal with all the evidence he has about any credits to which he claims he is entitled but which have not been awarded to him. He should do that within one month of the issue of this decision, and I have directed accordingly. 

David Williams
Commissioner
22 07 2008

ANNEX:

EXTRACTS FROM THE SOCIAL SECURITY (CREDITS) REGULATIONS 1975 (SI 1975 No 556) REGULATIONS 3 AND 9 
as relevant to credited contributions for a male claimant aged under 60 for periods of unemployment for years to 1986.
 
3	General provisions relating to the crediting of contributions

(1)	Any contributions credited in accordance with these regulations for the purposes of any benefit for which 2 contribution conditions are specified in Schedule 3 to the Act shall be only for the purpose of enabling the person concerned to satisfy the second of those conditions; and accordingly where under any of the provisions of these regulations a person would, but for this paragraph, be entitled to be credited with any contributions for a tax year, or in respect of any week in a tax year, he shall be so entitled for the purposes of any benefit only if and to no greater extent than that by which his relevant earnings factor for that year falls short of  the level required to make that year a reckonable year.

(2)	Where under these regulations a person is entitled for the purposes of any benefit to –
…
(b) a Class 1 credit in respect of a week, he is to be credited with an amount of primary Class 1 contributions calculated at the standard rate specified in section 4(6)(a) in respected of a payment of weekly earnings made in that week and equal to the lower earning limit then current under section 4(1)(a)
…

9	Credits for unemployment …

(1)	For the purposes of entitlement to any benefit by virtue of a person’s contributions he shall be entitled to a Class 1 credit in respect of each week of unemployment … within the meaning of paragraph (2).

(2)	… in this regulation “week of unemployment or incapacity” means –

(a) a week in which in relation to the person concerned each of the 6 days from Monday to Saturday was …	a day of unemployment within the meaning of paragraph (3) …
so however that if he objects on religious grounds to working on a specific day in each week other than Sunday, in the application of this subparagraph to him Sunday shall be substituted for that specific day …

(3)	Subject to paragraphs (4) and (7), in this regulation a “day of unemployment” in relation to any person means any day which –

(a) was a day of unemployment for the purposes of section 14(1)(a); or

(b) would have been such a say had he claimed unemployment benefit within the prescribed time,
…

(4)	for the purposes of paragraph (3), the employment of a person on any day in a week is to be disregarded if –

(a) 	(i)	he was available on that day to be employed full-time in some employed earner’s employment, [or, for the purposes of a claim for unemployment benefit for that day, he would be deemed in accordance with regulations to be available for employment in employed earners’ employment,]
[(ii)	the employment in which he was engaged was consistent with that full-time employment,]
(iii)	in that week he was engaged in employment for a total of not more than 8 hours (including any employment to which sub-paragraph (b) of this paragraph applies), and
(iv)	if the employment in which he was engaged was employed earner’s employment, it was not in his usual main occupation [or it was done for or organised through
(a)	a charity, or
(b)	a local authority, health authority, preserved board or health board in providing a service which is capable of being provided by a charity,] or

(b)	the employment in which he as engaged was employed earner’s employment–
(i)	which does not fall to be disregarded under sub-paragraph (a) of this paragraph,
(ii)	he was engaged in that employment on 1 day only in that week,
(iii)	his earnings from that employment on that day did not exceed the lower earnings limit then in force,

and in this paragraph –
	…
	(ii) earnings has the same meaning as in Part II of the Social Security (Contributions) Regulations 1975.
…

(7)	A day shall not be a day to which paragraph (3)(b) applies unless –

(a) 	the person concerned attended on that day at an unemployment benefit office and there made a written declaration as to his unemployment and his availability for employment; so however that where the Secretary of State had before that day given him a notice in which a day was specified for making such a declaration, the requirements of this sub-paragraph shall be treated as satisfied if he attended at such an office and made such a declaration on the day specified in the notice and had done so on each earlier day (if any) so specified; or

(b)	the person concerned has furnished, in accordance with requirements notified to him by the Secretary of State, alternative evidence that the day was a day to which paragraph (3)(b) would have applied had he satisfied the requirements of sub-paragraph (a) of this paragraph;

and in this paragraph “unemployment benefit office” means any office or place appointed by the Secretary of State for the purposes of claiming unemployment benefit.

Note on amendments:

The 1975 Regulations have been amended on many occasions. Of the amendments made during the period to which this Annex applies, many are not relevant, or are no longer relevant, to regulations 3 and 9 as they apply to credits for periods of unemployment that can count towards meeting contribution conditions for retirement pensions. 

No relevant amendments have been identified to regulation 3 as it applied before 1986-87. 

The following provisions amended regulation 9 before that year:
 
SI 1977 No 788 amends regulation 9 but only for the purpose of credits towards short term benefits. 

SI 1978 No 409 makes amendments to provisions in regulation 9 not set out in these extracts. 

SI 1981 No 1501 adds a new subparagraph (2)(c) and (9)(cc) to regulation 9 from 23 11 1981 but they apply only to those aged over 60 who were claiming supplementary allowance.  

SI 1982 No 96 amends regulation 9(4)(a) from 8 03 1982 by adding the words to regulation 9(4)(a)(i) and (iv) in square brackets in the text above and by revoking from that date the provisions in square brackets in regulation 9(4)(a)(ii).

SI 1983 No 463 adds, from 6 04 1983, a new regulation 9A (credits for persons approaching pensionable age). It applies to anyone attaining the age of 60 in any tax year on and after the tax year 1983-84, and to the next four tax years. It does not apply to Mr S as he attained that age after 1986, so is omitted here. 

Regulation 9 was finally revoked from the 1975 Regulations by SI 2000 No 3120 from 6 4 2001.