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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2009] UKUT 46 (AAC) (09 March 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/46.html Cite as: [2009] UKUT 46 (AAC) |
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[2009] UKUT 46 (AAC) (09 March 2009)
Main Category: Other current benefits
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEAL CHAMBER
The claimant's appeal to the Upper Tribunal is allowed. The decision of the Liverpool appeal tribunal dated 9 October 2007 involved an error of law, for the reason given below, and I set it aside. The case is remitted to a differently constituted First-tier Tribunal within the Social Entitlement Chamber for reconsideration in accordance with the directions in paragraph 50 below and any further directions that may be given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).
REASONS
The issues and relevant legislation
"(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.
(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."
The factual background and the appeal to the appeal tribunal
"How many hours a week is [the claimant] expected to spend on work that is included in the curriculum of the course at school, college or university? (By work, we mean supervised study at school, college, university or similar educational establishment and includes time spent on work done at home or elsewhere set by a tutor and is part of the course.)"
The officer wrote in "1,080 hours per annum". The answer to the question whether the institution regarded the claimant as being in full-time education was yes.
"Given that [the claimant] felt that she had covered a lot of the background reading for the literature she calculated that she would be able to complete her study - not to an ideal standard, but to an adequate one - by an additional eight hours per week, giving a total of 20 hours per week.
In fact, this caused problems with her course. Her caring responsibilities meant that she did not manage all of the reading for the course and would at best have just managed to pass. In the event, a crisis arose in April which added to her caring responsibilities (the death of a close friend of her daughter). [The claimant] was unable to sit her examinations. She has tried to use the summer vacation to catch up on the study she should have done during the term and will resit this month.
In R(G) 2/02 paragraph 22 it is suggested that for a student who attends for less than 21 hours per week `his successful completion of the course may be imperilled'. In fact, this is exactly what has happened as a result of [the claimant's] caring responsibilities."
The appeal tribunal's decision
"The course was undoubtedly a fulltime course as accepted by the appellant.
Based upon the information provided by the university this course could not be considered part-time.
Tribunal concluded that the work done whilst actually attending university could not be taken in isolation as clearly with regard to this course, a period home study is required which forms part of the course and although done at home falls into the category of supervised work."
The appeal to the Commissioner/Upper Tribunal
Discussion: regulation 5(1) of the ICA Regulations
"Notwithstanding the wording of the regulation, which has the appearance of a deeming provision, it appears that this definition was intended to be comprehensive. It was common case that in order to be regarded as being in receipt of full-time education the appellant had to be brought within the definition contained in Regulation 5."
Although that particular passage, rather than the eight propositions mentioned below, was not expressly approved by the Court of Appeal in Flemming, the whole approach in the latter case was implicitly based on an acceptance of its correctness. There would have been no point to most of the discussion in the judgments there if my simple view had been regarded as correct. That view would have provided a complete answer against Ms Flemming's case, without all the doubts about how to take account of the lazy or brilliant student who put in low hours of work. For the same reasons, the grammatically unlikely view that in regulation 5(1) "for 21 hours or more a week" refers to the course and not to the student's attendance of the course cannot be accepted. Social Security Commissioners, and therefore now the Administrative Appeals Chamber of the Upper Tribunal, are bound to follow the approach of the Northern Ireland Court of Appeal as well as that of the English Court of Appeal on questions of legal principle that were necessary to the decision in question (Tribunal of Commissioners' decisions R(SB) 1/90, paragraph 15, and R(IB) 4/04, paragraphs 29 and 30).
Wright-Turner
"1. Section 70(3) 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.
2. The words `attends' and `supervised' are ordinary English words, which take their meaning from the context.
3. That context varies, depending on the educational level of the establishment at which the claimant is receiving education.
4. Attending a course of education at a university means engaging in the academic activities required of those who are enrolled in the course.
5. 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.
6. 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.
7. 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 required to complete the course, the claimant's own testimony and any other source of material evidence.
8. 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."
"Not only will that Tribunal be required to decide whether particular work is `supervised' or `unsupervised' but it should go through each item in regulation 5(2), both (a) and (b), to decide what the actual hours of attendance at the education course are, bearing in mind the burden of proof imposed on the claimant to establish her case. That is not an easy task, as the amount of time spent by individual students in actual study will vary, one to another, even when students are studying the same course."
Flemming
"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 ....
22. 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."
"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 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 than that which is expected of him."
Commissioner's decision CG/3189/2004
"13. It is clear from the decision of the Court of Appeal in Northern Ireland in Wright-Turner and of the Court of Appeal in Flemming that the normal starting point in determining the hours of attendance at a course of university education will be evidence from the university authorities with regard to the amount of time which the authorities expect the student to devote to contact hours and supervised study. The evidence of the claimant will be relevant if there is a dispute about those issues, but it is probably only in a very unusual case that a tribunal will prefer the evidence of a student to the evidence of the college authorities on the question of how much study a student on the course is expected to carry out. As Mrs Commissioner Heggs observed in R(SB) 41/83, evidence from the university authorities concerning the description of a course is not conclusive, but any evidence produced in rebuttal should be `weighty in content' (para 12).
14. The Court of Appeal in Flemming rejected the submission that the word `attends' in regulation 5(1) requires physical attendance at the premises of the university, holding that the expression `attends a course of education at a university' is to be construed in the sense of being enrolled on such a course (para 17). The focus of the regulation is therefore on the requirements of the course, rather than the way in which the student in fact conducts his studies. As Chadwick LJ pointed out (para 28), the phrase in regulation 5(1) is `receiving full-time education by attendance', and not `receiving education by full-time attendance', and I do not consider that a claimant can establish that he or she is a full-time student simply by showing that he or she does less work than the course requires. If a student is very able, it is also legitimate to expect the student to study for the same length of time as a less able student in order to achieve a better degree. If a student is enrolled on a course requiring contact and supervised study time in excess of 21 hours and the student falls within the normal range of abilities and entry qualifications of students for whom the course is intended, in the absence of any special circumstances, the student should in my view generally be regarded as being in receipt of full-time education.
15. There will however be cases, such as the present, in which a student claims to be exempted from certain requirements of the course, for example, because the student has an overlapping qualification or has previously completed a relevant course of study. There is no doubt that regulation 5 in its present form allows such circumstances to be taken into account, and in such cases the starting point of the inquiry will be to establish the number of hours of contact time and supervised study expected of the particular student. In most cases there will be some form of documentary evidence from the university of an exemption or other relevant dispensation, and decision makers should be cautious in accepting uncorroborated evidence from a student that he or she is not expected to satisfy the normal requirements of the course."
The test in regulation 5(1)
The Upper Tribunal's conclusion on the appeal
Why the Upper Tribunal should not substitute a decision on the appeal against the decision of 8 January 2007
Directions to the new tribunal
(Signed) J Mesher
Judge of the Upper Tribunal
Date: 9 March 2009
