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R(G) 2/02

(Flemming v. The Secretary of State for Work and Pensions

[2002] EWCA Civ 641)

CA (Pill, Chadwick and Longmore LJJ) CG/5519/1999
10.5.02

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Invalid care allowance - calculation of number of hours of education – meaning of "attends a course of education at" – meaning of "supervised study"

Prior to September 1997 the claimant received invalid care allowance for her mother. However, in September 1997 the claimant began a degree course and, subsequently, her entitlement to benefit was reviewed and withdrawn on the grounds that she was receiving full-time university education. In such circumstances her entitlement to benefit was prevented by section 70(3) of the Social Security Contributions and Benefits Act 1992. A decision on a recoverable overpayment was also made. The claimant's appeal to the appeal tribunal was dismissed. Following an oral hearing, the Commissioner set aside the tribunal's decision and remitted the case to a fresh tribunal. The claimant appealed to the Court of Appeal. She argued that, in assessing whether education was "full-time" (twenty-one hours or more a week) under Regulation 5(1) of the Social Security (Invalid Care Allowance) Regulations 1976, the phrase "attends a course of education at" should be construed as requiring the student's physical presence at the premises of the educational establishment concerned. She further submitted that the expression "supervised study" in regulation 5(2) did not include private study at home. The Court of Appeal dismissed the appeal and remitted the case for rehearing by a differently constituted tribunal in the light of the guidance given.

Held, dismissing the appeal, that:

(per Pill LJ) the expression "attends a course of education at a university" is to be construed in the sense of being enrolled upon such a course and the expression does not, therefore, bear the locational connotation argued for by the appellant;

hours of study away from the premises of the university are therefore capable of coming within the period during which the student is attending a course of education;

as regards regulation 5(2), the test of what is "supervised study" does not depend on the period of time for which the supervisor is present with the student;

the work must, however, be study directed to the course of education and the curriculum of the course involved, in addition there must also be a degree of direction by and answerability to a supervisor (although the absence of an immediate sanction for failure to do a piece of work does not take the work done outside the definition of "supervised study");

the propositions for the guidance of tribunals and Commissioners on the construction of Regulation 5 stated by the Northern Ireland Court of Appeal in Bronwyn Wright-Turner v Department for Social Development [2002 NICA 2, now reported as R1/02 (ICA)] were agreed with;

further, it was also agreed that the ascertainment of hours of attendance is question of fact to be determined by the decision maker or tribunal;

(per Chadwick LJ) the phrase "receiving … education by attendance at" which appeared in the original form of Regulation 5 when made in 1976 could not have been intended to mean only the receipt of education by physical attendance at classes, lectures and laboratories: on any ordinary meaning of the phrase it must be taken to include private study which is a necessary adjunct to physical attendance at lectures and laboratory work;

the phrase "attends a course of education at" in the new regulation was not intended to effect a change in meaning: there is no basis for construing the phrase as imposing a requirement of physical attendance at the premises of the educational establishment;

in relation to Regulation 5(2), the words "whether undertaken on or off the premises" in sub-paragraph (b) do not imply that the supervised study which is to be included under sub-paragraph (a) is limited to study on the premises;

as to the meaning of "supervised study" that question must be answered by reference to the facts of the particular case;

the fact that work is "set" - in the sense that it is work which the student is expected or required, by the curriculum or by a supervising member of staff, to do - will (save in exceptional cases) bring it squarely within the concept of "supervised study";

the approach of the Northern Ireland Court of Appeal in Bronwyn Wright-Turner v Department for Social Development was broadly correct and should be adopted.

(Longmore LJ agreed with the judgments of Pill and Chadwick LJJ).

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DECISION OF THE COURT OF APPEAL

Mr. Paul Stagg (instructed by Speak Easy Advice Centre) appeared for the Appellant.

Mr. David Forsdick (instructed by the Solicitor for the Secretary of State for work and Pensions) appeared for the Respondent.

Judgment (reserved)

LORD JUSTICE PILL:

1. This is an appeal against the decision of Mr Commissioner Jacobs dated 15 February 2001 whereby he set aside a decision of a Social Security Appeal Tribunal and directed a re-hearing by a differently constituted Tribunal of a claim by Tina Yasmin Flemming ("the claimant") for invalid care allowance. The claimant's appeal is not against the remission for re-hearing but against the Commissioner's construction of section 70(3) of the Social Security Contributions and Benefits Act 1992 ("the 1992 Act") and Regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 ("the 1976 Regulations"). The Commissioner gave directions to the Appeal Tribunal as to the test to be applied in deciding whether the claimant was receiving full-time education within the meaning of the Statute and the Regulations.

Prior to September 1997, the claimant was receiving invalid care allowance for caring for her disabled mother, Mrs Queeley. In September 1997, the claimant commenced a degree course in Media and Philosophy at the University of Glamorgan. An adjudication officer decided that her entitlement ceased from the commencement of her course because she was receiving full-time education. Her appeal to the Appeal Tribunal was dismissed on 23 February 1999.

Section 70 of the 1992 Act provides, so far as is material:

"(1) A person shall be entitled to an invalid care allowance for any day on which he is engaged in caring for a severely disabled person if...

(a) he is regularly and substantially engaged in caring for that person;

he is not gainfully employed; and

the severely disabled person is either such relative of his as may be prescribed or a person of any such other description as may be prescribed.

...

(3) A person shall not be entitled to an allowance under this section if he is under the age of 16 or receiving full-time education.

...

(8) Regulations may prescribe the circumstances in which a person is or is not to be treated for the purposes of this section as engaged, or regularly and substantially engaged, in caring for a severely disabled person, as gainfully employed or as receiving full-time education."

Regulation 5 of the 1976 Regulations, (SI 1976 No 409 as amended by SI 1992 No 470 and SI 1996 No 2744), provides:

"(1) For the purposes of section 70(3) of the Contributions and Benefits Act, a person shall be treated as receiving full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for twenty-one hours or more a week.

In calculating the hours of attendance under paragraph (1) of this regulation...

(a) there shall be included the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course; and

(b) there shall be excluded any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.

(3) In determining the duration of a period of full-time education under paragraph (1) of this regulation, a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it."

The threshold for the purposes of section 70(1)(a) is a period of at least 35 hours a week. Specific thresholds are also laid down for the other criteria in the sub-section.

The only issue the claimant seeks to argue is whether she was "receiving full-time education". On her behalf, the basic submission is that the word "attends" in Regulation 5(1) requires physical presence at the premises of the University. Hours spent studying at home should not be taken into account. It is also submitted that private study at home is not "supervised study" within the meaning of Regulation 5(2). Supervised study does not include time spent in private study unless that study is under the supervision (direct or indirect) of a tutor at the University.

Both parties seek guidance as to the meaning of the words "attends" and "supervised study" and the test which should be applied when considering whether someone is "receiving full-time education". The Court must however bear in mind the Order of the Commissioner and the directions he gave. There are no findings of fact upon which, in accordance with its usual function, this Court can give a ruling.

The Commissioner referred to conflicting views expressed by Commissioners. One of the decisions with which he agreed was a decision of a Commissioner in Northern Ireland which was, subsequent to Mr Commissioner Jacobs' decision, the subject of an unsuccessful appeal to the Northern Ireland Court of Appeal.

Mr Commissioner Jacobs stated:

"37. It is not possible to lay down rigid rules, as each case will depend on its own circumstances. But in the case of an undergraduate arts degree, here is a rough guide to how a tribunal could determine the number of hours of supervised study. The obvious starting point is the number of contact hours for lectures, tutorials and so on. That will be shown by the student's timetable. Then the tribunal must consider the work set as preparation for discussion in class or for written work. That will probably count as supervised study. Next there is the work done as a follow-up to classes or as part of the general background reading for the subject. It is probably at this point that the issue of whether or not the work is supervised becomes difficult."

The Commissioner plainly contemplated that the work off the premises of the university could be counted towards the 21 hours and also gave guidance about the meaning of "supervised study". That guidance is understandably less specific and firm than guidance subsequently given by the Court of Appeal in Northern Ireland.

The Commissioner did not agree with a direction given by Mr Commissioner Levenson in decision CG/4343/1998. Mr Stagg, for the appellant, invites the Court to approve that direction, with one addition. Mr Commissioner Levenson stated:

"15. My conclusions on the way in which regulation 5 is to be applied are as follows:

(a) The only hours to be taken into account at all are those spent attending at the establishment as that concept is explained in paragraphs 18 and 24 of the decision of the Tribunal of Commissioners in R(SB) 26/82

(b) From such hours are to be excluded time occupied by meal breaks or spent on unsupervised study. For the guidance of tribunals I would suggest that unsupervised study means study to which all of the following descriptions apply:-

(i) it is not done in the physical or virtual (in the technological sense) or telephonic presence of an academic or support staff member who is present for the purpose of supervision and

(ii) it is not a traditional lecture or seminar or tutorial whether carried out by traditional or modern methods and

(iii) it is not done in a manner prescribed in detail by academic or support staff (and so does not consist of completing questionnaires or doing multiple choice tests and similar) and

(iv) it is not a traditional formal examination and

(v) it does not consist of actually writing (or dictating or typing) an assessment which is to be formally assessed by academic or support staff.

It seems to me that unsupervised study will include (but not necessarily be limited to) all other time spent reading even if the reading is from a prescribed reading list, and also preparation for the activities which are themselves supervised study."

Mr Stagg concedes that further work should be excluded, under (b)(v), from the category of unsupervised work: "research or preparation necessary for that assessment". The decision of the Tribunal of Commissioners mentioned by Mr Commissioner Levenson was a decision on supplementary benefit in the context of an applicant still at school and upon a Regulation which did not have an equivalent of Regulation 5(2) of the Regulations now under consideration. In relation to attendance, the Commissioners stated:

"18. We have already demonstrated that 'attending a course of education at an establishment' must mean something different from merely attending at that establishment; and we stress that we are referring to hours of compulsory attendance at the establishment, for it is such hours, and such only, that will determine whether the education in question is or is not full-time. In other words, a person may be compulsorily attending the establishment during hours when he is not attending a course of education at that establishment. On the other hand, we do not thank that a person can be held to be attending a course of education at an establishment during hours when he is not either physically present at the establishment or participating in some compulsory activity directly controlled by the establishment. (In the latter category would fall such activities as a field class in botany or an organised visit to the local museum.) The draftsman's selection of the word 'attend' must import the notion of place or function (cf the third meaning set out in paragraph 17 above). He has eschewed such wider terms as 'following a course of education' or 'pursuing a course of education'.

[The third meaning in paragraph 17 is: "to be present at some place or function."]

...

2. Mr Wurtzel initially invited us to disregard all time other than that during which the pupil was actually being taught. The presence of a teacher was, he submitted, crucial. He readily conceded, however, that if there were compulsory periods of private study on the premises of the establishment, these too should be counted. He did not, we think, challenge the view that, if a teacher was present and relevant instruction was being given, it did not matter that such instruction was being given off the premises of the establishment. It would be part of the course and the pupil would be physically attending it.
3. In our view the correct analysis is that indicated in paragraph 23 above. In calculating the hours involved in attending a course of education the following, and only the following, should be taken into account:

(a) Time spent in a classroom (or laboratory or such like) under the instruction or supervision of a teacher.

(b) Time spent on compulsory field-work, outings, projects and the like which, although off the premises of the relevant establishment, are an integral part of the course which the claimant is following and are conducted or supervised by a teacher from the establishment.

(c) Time spent on compulsory and predetermined periods of private study on the premises of the establishment."

4. In Bronwyn Wright-Turner v Department for Social Development (unreported transcript 11 January 2002) [2002 NICA 2, now reported as R1/02 (ICA)] the Court of Appeal in Northern Ireland (Carswell LCJ, Nicholson LJ and MacDermott LJ) considered the construction of Regulation 5 in general terms and then set out a series of propositions for guidance of tribunals and Commissioners. Giving the judgment of the Court, Carswell LCJ stated, in relation to Regulation 5:

" It is undeniable that there are difficulties whichever construction one adopts. In favour of the appellant's construction is the use of the word 'attends' and the fact that all the other activities referred to in Regulation 5(1)(a) [5(2)(a) must have been intended] require the physical presence of the student on the premises or on field work, so that construction ejusdem generis with these words might be said to lead to the conclusion that supervised studies carries the same requirement. Moreover, it may be quite feasible for some students engaged in full-time education, unlike persons in full-time employment, to combine that with caring for a disabled person.

On the other hand, to restrict the category of persons receiving full-time university education to those who are physically on the university premises in receipt of instruction or engaging in study in the presence of a supervisor is wholly unrealistic, for it would exclude the huge majority of students in many disciplines in which the learning process is centred on individual reading of material rather than on lectures or practical laboratory type of work. It is common for students in many universities to carry out their private study in a variety of places, in libraries, halls of residence, flats or other accommodation off campus or their own homes. The study being carried out by each may be exactly the same, but it would be productive of undesirable distinctions to treat these students differently for the purpose of entitlement to benefits. Unlike the case of schools, for which the definition is much more apt, study is not physically overseen at universities, and the commonest arrangement is for the tutor to give the students a reading list for them to cover in their own time, with possibly an essay or other assignment to complete by a stated time. Even where a course is largely taught by a series of lectures rather than tutorials or seminars, much the greater part of the student's time is typically spent in reading, before or after the lectures, the material on which they are based.

It was these considerations which led Social Security Commissioners in a number of decisions to conclude that in the case of university students the term 'supervised study' must be intended to mean study under the direction of a supervisor, who prescribes, in broad or more detailed terms, what material the students are to read and leaves them to do so in their own time and at the place and in the manner of their choosing. It is indeed widely regarded as an essential attribute of the process of higher education that students are guided and encouraged in this way to develop skills of research and absorption and ordering of knowledge and ideas."

5. The propositions were:

"1. Section 70(3) of the 1992 Act disentitles from receipt of an allowance a person who is receiving full-time education. If Regulation 5 is interpreted in a way which excludes from its ambit the large majority of university students, who on any ordinary classification are regarded as full-time students, then it is unlikely that the interpretation is correct.

6. The words "attends" and "supervised" are ordinary English words, which take their meaning from the context.
7. That context varies, depending on the educational level of the establishment at which the claimant is receiving education.
8. Attending a course of education at a university means engaging in the academic activities required of those who are enrolled in the course.
9. One component of a course of education at a university is study of the subject matter of the course, which may be carried on by the students at times and places of their own choosing.
10. Where that study is in discharge of the requirements of the course, as prescribed by those who conduct it, it constitutes supervised study within the meaning of Regulation 5. It does not have to be carried out on university premises or in the physical presence of a supervisor.
11. Ascertainment of the hours of attendance at a course of education is a question of fact, to be determined by the adjudicating officer or tribunal. In doing so they will have regard to the university's requirements of attendance at the formal contacts specified in Regulation 5(2)(a), any estimate furnished by the university authorities of the supervised study time to complete the course, the claimant's own testimony and any other source of material evidence.
12. The tribunal of fact should ordinarily focus primarily on the standard amount of time which the university authorities expect students to devote to contact hours and supervised study in order to complete the course. Some students, blessed with the ability to work more quickly than average, will get through the prescribed reading in less than the notionally allotted time, while some, less fortunate or perhaps more thorough and conscientious, will take longer. It is notorious that others will do a minimum of work during the academic year and seek to pass their examinations with a last-minute burst of effort, leaving the average hours worked over the year materially below the level expected by the university authorities."
13. For the claimant, Mr Stagg submits that the purpose of invalid care allowance is to encourage people to provide care rather than allow their relatives to become a burden on social services. The commitment is considerable but the period required, 35 hours, does not preclude other activities such as a full-time course of education. To exclude from the 21 hours in Regulation 5(1), hours spent at home, and away from the premises of the university, is consistent with the purpose of the allowance because, while at home, the claimant can spend substantial time meeting the care requirement. It is submitted that the construction under which "attends" requires physical presence at the premises of the university is to be preferred because it makes the test in Regulation 5(1) workable. All that needs to be looked at is the claimant's timetable with appropriate time added for the writing of essays on the premises and examinations. It is accepted that attendance by an internet link would come within the definition.
14. As to the expression "supervised study" in Regulation 5(2)(a) and "unsupervised study" in Regulation 5(2)(b), reliance is placed by Mr Stagg on the test stated by Mr Commissioner Levenson. Study is supervised only if there is an enforceable obligation to do it. Preparatory reading for lectures and tutorials is the subject of suggestion and not supervision because sanctions do not follow from a failure to do it.
15. I do not consider that it is possible to detect an overall statutory purpose which throws significant light on the construction of the words in issue. Each of the criteria to be satisfied to establish an entitlement to invalid care allowance is defined in a specific and detailed way. The statutory purpose is that those who meet the criteria are entitled to the allowance and those who do not meet them are not entitled. I would however approach the expression "full-time education" with some presumption that a conventional three-year undergraduate degree course of education offered by a university comes within that expression.
16. Regulation 5(1), including as it does the word "treated", is a deeming provision and covers only those who come within the requirement specified. What is required is attendance for 21 hours or more a week and Regulation 5(2) provides what hours shall be included for that purpose.
17. Reference was made to the Regulations covering invalid care allowance as originally enacted in 1976, under section 37(3) of the Social Security Act 1975. The procedure was different in that entitlement involved a certification by the Secretary of State that the claimant was "receiving full-time education by attendance at an establishment recognised by the Secretary of State as being, or as comparable to, a university, college or school". I do not consider that the change from that terminology to the expression "attends a course of education at a university ... " was intended to effect a change of meaning or that the difference in terminology is significant upon the present issue.

I would construe the expression "attends a course of education at a university" in the sense of being enrolled upon such a course at the university. In ordinary language, the student who says he attends a course of education at Glamorgan University is saying no more than that he is enrolled upon and pursuing such a course offered by the University. The expression does not have the locational connotation for which Mr Stagg argues. Some of the student's time will almost inevitably be spent in study upon the premises of a university but the hours during which he is attending the course of education are not confined to the hours on the premises. Hours of study away from the premises of the university are capable of coming within the period during which the student is attending the course of education. This construction is supported by the presence of the word "attending" in Regulation 5(3). The word does not have a locational limitation in that context and it would be surprising if the word attendance has a different meaning in two paragraphs of the same Regulation, as Mr Stagg contends it has.

If, as I would hold, study away from the premises is capable of constituting "hours of attendance" under the Regulation, the second question is what constitutes "supervised study" within the meaning of Regulation 5(2). It is a trite comment that the amount of supervision a person undertaking study requires varies very considerably from course of education to course of education. It will depend on the maturity of the student and the nature and curriculum of the course. At school, the amount of supervision may be considerable. The amount of supervision would be likely to be less in the case of an undergraduate course and still less in the case of a post-graduate course.

18. Study may however be supervised without the supervisor necessarily being present at the time of study. The test of what is "supervised study" does not depend on the period of time for which the supervisor is present with the student. The work must be study directed to the course of education and the curriculum of the course involved. The concept also requires a degree of direction by and answerability to a supervisor. Any course of education will have a curriculum, whether stated in very general terms or in detail, the requirements of which can be expected to be brought home to a student by a supervisor. Work done to meet the reasonable requirements of the course can usually be regarded as supervised study. The absence of an immediate sanction for failure to do a piece of work, for example prepare for a seminar or tutorial, does not, however, take work done outside the definition of supervised study.
19. That, for present purposes, some study may be unsupervised is acknowledged in paragraph (2)(b) of Regulation 5. Work beyond the reasonable requirements of the course can be expected to come within that definition. The addition of the words "whether undertaken on or off the premises of the educational establishment" in paragraph (2)(b) is puzzling. Whichever argument is preferred, the words are unnecessary. They were probably inserted, in my view, to underline that study may be unsupervised even if undertaken on the premises.

It follows from the comments I have ventured to make that I agree with the propositions stated by the Court of Appeal in Northern Ireland in Wright-Turner and cited at paragraph 11 of this judgment. I also agree that ascertainment of the hours of attendance is a question of fact to be determined by the adjudicating officer or tribunal. Evidence from the university authorities as to the amount of time they expect students to undertake to complete the course is likely to be important evidence. I agree that the "tribunal of fact should ordinarily focus primarily on it" as stated in the opening words of proposition 8 in Wright-Turner.

Evidence from the student himself as to the time he spends to meet the requirements of the course is not excluded. In the latter part of proposition 8, the Court attempted to deal with the question arising from the varying abilities and conscientiousness of students of all generations. Some students on a course of education will spend more time studying than others do. A fact finding tribunal should however scrutinise with care evidence from a student who claims that he attends the course for significantly fewer hours than the university authorities expect of him. Moreover, on many courses of education it may be a foolhardy student, unless a very brilliant one, who genuinely claims that he attends, within the definition, for fewer than 21 hours a week. His successful completion of the course may be imperilled. The more structured the course, with, for example, modules, detailed course work and regular assessment, the easier it is likely to be to make the determination of fact.

Applicants for invalid care allowance are required to fill in a form, currently DS 790 of July 1996, to assist with the making of a determination. The guidance given to claimants on that form includes the statement that supervised study does not include time spent on "additional study which has not been set by the tutor (e.g. revision; wider reading etc)". The inclusion of the expression "wider reading" accords with the approach I have adopted but it appears to me that "revision" for an examination set by and to be marked by a tutor as a part of the course would normally be supervised study within the meaning of the Regulation, as would preparation for a seminar or tutorial.

This Court is unaccustomed to giving general guidance when not making a decision on specific facts. As requested, I have endeavoured to do so and the task has been made easier by the fact that I respectfully agree with the approach of Carswell LCJ in Wright-Turner, as already cited.

I would dismiss the appeal. Upon dismissal of this appeal, the claimant's appeal against an adjudicator's decision dated 13 August 1998 is remitted for rehearing by a differently constituted Appeal Tribunal to be determined in accordance with the judgment of this court upon the question as to whether the claimant was receiving full-time education.

LORD JUSTICE CHADWICK:

20. The Social Security Commissioner, in exercising the powers conferred on him by section 14(8) of the Social Security Act 1988, referred this case to an appeal tribunal with a direction that, in the course of a complete rehearing, the tribunal determine the question whether the claimant was receiving a full-time education, for the purposes of section 70(3) of the Social Security Contributions and Benefits Act 1992, in accordance with the analysis set out in the relevant paragraphs of his decision. In the course of that analysis he offered what he described as "a rough guide" to the calculation, in the context of regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 (SI 1976 No 409 as amended by SI 1992 No 470 and SI 1996 No 2744), of the number of hours of supervised study. He said this, at paragraph 37 of his written decision:

"The obvious starting point is the number of contact hours for lectures, tutorials and so on. That will be shown by the student's timetable. Then the tribunal must consider the work set as preparation for discussion in class or for written work. That will probably count as supervised study … "

The narrow question raised by this appeal is whether the Commissioner was right to direct the tribunal to approach the task which they had been set on the basis that work set as preparation for discussion in class or for written work would probably count as supervised study without drawing a distinction between preparatory work done on the premises of the educational establishment and work done off those premises. The appellant contends that hours spent in doing work off the premises (with some limited exceptions) cannot be taken into account.

21. The question turns on the true meaning and effect of regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976. The regulation was made for the purpose of prescribing the circumstances in which a person is or is not to be treated, for the purposes of what is now section 70(3) of the 1992 Act (formerly section 37(3) of the Social Security Act 1975) as receiving full time education and must be construed in that context. As first made in 1976, the regulation was in these terms:

"(1) For the purposes of an invalid care allowance, a person shall not be treated as receiving full time education for any period unless that period is one in respect of which the Secretary of State certifies that he is receiving full-time education by attendance at an establishment recognised by the Secretary of State as being, or as comparable to, a university, college or school.

(2) In determining the duration of a period of full-time education under paragraph (1) of this regulation, any temporary interruption of that education may be disregarded."

22. For my part, I would accept that the phrase "by attendance at", in that context, imports some requirement of physical attendance at the educational establishment. I doubt whether it would have been thought possible, in 1976, for a person to receive full-time education at a university, college or school, or other comparable establishment, without some attendance at classes, lectures, seminars, tutorials, laboratories or workshops. But it is, I think, plain, that there was no requirement that physical attendance should be "full-time". The phrase is "receiving full-time education by attendance"; not "receiving education by full-time attendance". The question whether a person was to be treated as receiving full-time education – and, in particular, the number of hours which were to be devoted to attendance at classes, lectures or laboratories, or to the private study which is a necessary adjunct to such attendance, if the receipt of education were to be treated as "full-time" – as distinct from part-time - was left by the regulation to the judgment of the Secretary of State. But, whatever the number of hours required if the receipt of education were to qualify as "full-time", there was no requirement that all those hours should be hours of physical attendance at the educational establishment. The phrase "receiving … education by attendance at", in the context of the regulation as first made, could not have been intended to mean only the receipt of education by physical attendance at classes, lectures and laboratories. It must have been recognised, for example, that the receipt of education at a university is not confined to hours spent in the lecture hall or the laboratory; on any ordinary meaning of the phrase it must be taken to include the private study which is a necessary adjunct to physical attendance at lectures and laboratory work.
23. The regulation made in 1976 was replaced in 1992, by a substitution made under SI 1992 No 470. The new regulation was in these terms:

"(1) For the purposes of section 37(3) of the [1975] Act, a person shall be treated as receiving a full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for twenty-one hours or more a week.

(2) In calculating the hours of attendance under paragraph (1) of this regulation –

(a) there shall be included the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course; and

(b) there shall be excluded any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.

(3) In determining the duration of a period of full-time education under paragraph (1) of this regulation, a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it." [emphasis added]

The reference to section 37(3) of the 1975 Act was replaced, under SI 1996 No 2744, by a reference to section 70(3) of the 1992 Act; but the regulation has remained otherwise unchanged since 1992.

24. In paragraph (1) of the new regulation the phrase "attends a course of education at" is substituted for the phrase "education by attendance at" which appears in the regulation as originally made. I agree that the change in language was not intended to effect a change in meaning. If anything, the phrase "attends a course of education at" restates, in more precise terms, the meaning which the former phrase was plainly intended to bear. As I have said, the former phrase could not have been intended to mean only the receipt of education by physical attendance at classes, lectures and laboratories. There is no basis for giving so restricted a meaning to the phrase which has been substituted.
25. It is plain, however, that the substituted regulation is more prescriptive than the regulation as first made. It substitutes for the certificate of the Secretary of State a requirement based on attendance for twenty-one hours or more a week. But it is, I think, reasonably clear that what is to be attended, for the purpose of satisfying that requirement, is "a course of education". That follows from a syntactical analysis of paragraph (1) of the substituted regulation; and from the words used in paragraph (3) – "a person who has started on a course of education shall be treated as attending it.". And, for the reasons which I have already given, there is no basis for construing the phrase "attends a course of education at" as imposing a requirement of physical attendance at the premises of the educational establishment. So there would be no reason to hold, on the basis of paragraph (1) if it stood alone, that the requirement could only be satisfied by physical attendance at the premises for twenty-one hours or more a week.
26. Paragraph (1) of regulation 5 must, of course, be construed in conjunction with paragraph (2) of that regulation. That raises two questions. First, whether "time spent … undertaking supervised study", for the purposes of sub-paragraph (a) of paragraph (2), includes time spent in preparation for discussion in class or for written work – or, to put the point a little more broadly, time spent in the private study which is a necessary adjunct to physical attendance at lectures and laboratory work. Second, whether the use of the words "whether undertaken on or off the premises" in sub-paragraph (b) – in relation to time spent on unsupervised study, which is to be excluded from the calculation – implies that the supervised study which is to be included under sub-paragraph (a) is limited to supervised study undertaken on the premises.
27. In my view the second of those questions should be answered in the negative. It is plain – and not, I think, in dispute – that a limitation in the form "if on the premises" cannot be implied in relation to sub-paragraph (a) as a whole. It must have been in contemplation, at the time when the substituted rule was introduced in 1992, that there would be circumstances in which participation in some "exercise, experiment or project for which provision is made in the curriculum of the course" would take place off the premises of the educational establishment. Further, it is not difficult to envisage circumstances in which instruction or tuition is given and received and practical work undertaken, as part of the course of education which the recipient is attending, off the premises. So, if the limitation for which the appellant contends were to be implied it would be necessary to read sub-paragraph (a) as:

"there shall be included in the time spent receiving instruction or tuition, undertaking supervised study on the premises of the educational establishment, examination or practical work, or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course".

The words which I have emphasised should not be read in to sub-paragraph (a) without some compelling reason. In my view there is no reason to read in those words – and, certainly, no compelling reason. Whatever the true extent of the phrase "supervised study" – and whether that phrase be given a liberal or a restricted meaning – it is plain that supervised study is private study which is subject to some form of supervision. No satisfactory reason has been advanced to explain why it should be a relevant consideration, in determining whether a person is to be treated as receiving full-time education, whether private study which would otherwise qualify as supervised study is undertaken on or off the premises of the educational establishment.

28. It is pertinent to keep in mind that a person is not entitled to invalid care allowance unless he or she is regularly and substantially engaged in caring for a severely disabled person – see section 70(1)(a) of the 1992 Act. The requirement that the carer must be "substantially engaged" in caring for the invalid is not satisfied unless the care extends over at least thirty five hours a week. It was suggested in argument that a reason for restricting private (but supervised) study to study which is undertaken on the premises of the educational establishment would be that study which is not undertaken on the premises of the educational establishment is likely to be undertaken at the place where care is given to the invalid; thereby facilitating the giving of care or extending the period over which it is given. But the requirement that the carer must be "substantially engaged" in caring for the invalid is free-standing. Plainly it can be satisfied by a person who is engaged elsewhere during the greater part of the day; in particular, it can be satisfied by a person who is on the premises of an educational establishment for four to five hours a day (that is to say, for twenty-one hours or more a week). There is, as it seems to me, no need to buttress the requirement in section 70(1)(a) of the Act by reading into regulation 5(2)(a) of the Regulations words that are not there. Further, I am not persuaded that there is any real basis for the premise that restricting private (but supervised) study to study which is undertaken on the premises of the educational establishment will have the effect that study which is not undertaken on the premises of the educational establishment is undertaken at the place where care is given to the invalid. It seems to me at least equally likely that the student will choose to study in a place (for example, the local library) where he or she will be free from calls to provide care on demand.
29. On any view the inclusion in regulation 5(2)(b) of the words "whether undertaken on or off the premises of the educational establishment" is cause for some puzzlement. The obvious purpose of sub-paragraph (b) is to draw a distinction between "supervised study" – which is to be taken into account in calculating the hours of attendance under paragraph (1) – and "unsupervised study" – which is to be excluded in that calculation. In that context the words are unnecessary. And, if those words were included in sub-paragraph (b) in order to emphasise that the place where the unsupervised study was undertaken was irrelevant, they could as well have been included in sub-paragraph (a) in order to emphasise that the place where the activities described in that sub-paragraph were carried on was also irrelevant. It is tempting - although not, I think, permissible – to read the last eleven words of paragraph (2) as if those words had been intended to qualify both sub-paragraphs (a) and (b). I resist that temptation; but, in my view, the effect of the paragraph is the same. It is irrelevant, as well under sub-paragraph (a) as under sub-paragraph (b), where the activities respectively described in those sub-paragraphs are carried on. I agree with Lord Justice Pill that the probable reason for the inclusion of the words "whether undertaken on or off the premises of the educational establishment" in sub-paragraph (b) is the avoidance of doubt; that is to say, the words are included to meet the contention that what would otherwise be unsupervised study somehow qualifies under sub-paragraph (a) if it is undertaken on the premises.
30. It follows that I would reject the submission that hours spent in supervised study off the premises cannot be taken into account. I would reject the submission that, if the Commissioner were otherwise correct in the direction which he gave, he was nevertheless wrong in failing to draw a distinction between preparatory work done on the premises of the educational establishment and work done off those premises. But that begs the separate question: whether "time spent … undertaking supervised study", for the purposes of sub-paragraph (a) of paragraph (2), includes time spent in preparation for discussion in class or for written work?
31. That question, as the Commissioner correctly pointed out, must be answered by reference to the facts of the particular case. The question comes before this Court in circumstances in which there have been no findings of fact by reference to which an answer can be given. But I would not quarrel with the Commissioner's view that work set as preparation for discussion in class or for written work will probably count as supervised study. It seems to me that the fact that the work has been "set" – in the sense that it is work which the student is expected or required, by the curriculum or by a supervising member of staff, to do – will (save in exceptional cases) bring it squarely within the concept of study which is supervised. I agree with Lord Justice Pill that the test of what is "supervised study" does not depend on the period of time for which the supervisor is present with the student; and that the absence of an immediate sanction for failure to do a piece of work that has been set does not take that work out of that concept.
32. That is sufficient to answer the narrow question raised by this appeal. But I agree that it would be unsatisfactory to dispose of this appeal without an indication, at least in general terms, whether the approach of the Court of Appeal in Northern Ireland in Bronwyn Wright-Turner v Department for Social Department (unreported, 11 January 2002) [2002 NICA 2, now reported as R1/02(ICA)] should be followed by appeal tribunals in England and Wales. In my view that approach is broadly correct and should be adopted. I would draw particular attention to three factors identified in the judgment of Lord Chief Justice Carswell. First, that study which is in discharge of the requirements of the course, as prescribed by those who conduct it, constitutes supervised study for the purposes of regulation 5. I would add that, in my view, time spent in the private study which is a necessary adjunct to physical attendance at lectures and laboratory work falls within that description. Second, ascertainment of the hours for which a person attends a course of education is a question of fact, to be determined by the Secretary of State or a tribunal. Third, the tribunal of fact should have particular regard to the amount of time which those who conduct a course expect a student to devote to contact hours and supervised study in order satisfactorily to complete the course. I recognise that the "average" student is an elusive concept, that the less able but diligent student will take longer than the time expected, and that the more able (or less diligent) student will take (or devote) less than the time expected. But it is plainly desirable that a person with care responsibilities who is contemplating a course of education should know in advance whether, by attending the course, he or she will be treated as receiving full-time education. A tribunal of fact should, I think, be very slow to accept that a person expects or intends to devote – or does, in fact, devote - significantly less time to the course than those who have conduct of the course expect of him; and very slow to hold that a person who is attending a course considered by the educational establishment to be a part time course is to be treated as receiving full-time education because he devotes significantly more time that that which is expected of him.
33. I would dismiss this appeal.

LORD JUSTICE LONGMORE:

34. I agree with both judgments and do not wish to add anything of my own.

Order: Appeal dismissed; no order as to costs.

(Order does not form part of the approved judgment)