All nine factors in DMG31107 should be considered in
all cases where a person who has been working as a
self-employed earner is now without work. This includes
1) people unable to work because of sickness
2) seasonal workers
3) sub-contractors
and
4) share fishermen.
In a given case some of the nine factors may point toward the
conclusion that a person is gainfully employed. Others may point
the other way. No one factor is decisive. The decision maker should
decide what weight to give each factor. A decision on gainful
employment should be made on the basis of a balanced view of the
evidence in the case at hand. These are matters of individual
judgement for the decision maker concerned.
Note It should be remembered that the concepts of gainful
employment and remunerative work are different. A person may be
gainfully employed as a self-employed earner although not in
remunerative work
The applicant is a self-employed gardener. When the claim is made on 10.12.98 she is not working on any contracts. When the decision maker makes enquiries it is found that she uses these normally slack months to give all her gardening tools a full overhaul and catch up on book keeping. She has regular garden maintenance contracts that do not start each year until 1st February. The decision maker decides that this is part of a regular pattern of work and as she has a realistic prospect of work in the future and is carrying out activities to do with her job, that she is still gainfully employed.
The applicant 's partner is a self-employed builder. When the application is made he has been without work for three months and has not done any estimates. He has dismissed his two employees and signed on as available for work. The decision maker decides that as he has not had any work for some time and there is not any realistic prospect of work in the future he is no longer gainfully employed.
