Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C4/96(IS) (21 January 1997)

 


Decision No: C4/96(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

INCOME SUPPORT

Appeal to the Social Security Commissioner

on a question of law from the decision of

Newry Social Security Appeal Tribunal

dated 28 February 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of Newry Social Security Appeal Tribunal; whereby it was held by a majority that he was not entitled to income support.
2. The claimant's application for income support, made in December 1993, was refused by the Adjudication Officer on the grounds that he was a student attending a course of study and not available for employment. At that time the claimant was part-way through a "year out" from his course of study at the University of Ulster, Jordanstown, which began on 1 October 1991 and was due to end on 20 June 1995. As part of his course the claimant was supposed to secure a placement during his "year out", but he had not succeeded in doing so. He had been granted leave of absence during his "year out" and his award had been suspended. The Southern Education and Library Board had confirmed that, "as part of his course he was supposed to do one year placement and was thus described as doing a sandwich course". In reaching his decision that the claimant was not entitled to income support, the Adjudication Officer referred, inter alia, to the definition of "student" in regulation 61 of the Income Support (General) Regulations (Northern Ireland) 1987, (the Income Support Regulations), which, so far as relevant to this case was then as follows:-

""Student" means a person aged 19 or over but under pensionable age

who is attending a full-time course of study at an educational

establishment; and for the purposes of this definition -

(a) a person who has started on such a course shall be treated as

attending it throughout any period of term or vacation within it,

until the end of the course or such earlier date as he abandons

it or is dismissed from it;

(b) a person on a sandwich course shall be treated as attending a

full-time course of advanced education or, as the case may be,

or study."

3. The claimant's appeal against the Adjudication Officer's decision was based upon two decisions of the GB Commissioner, CIS/514/1992 and CIS/413/1993, in which it had been accepted that students who had been permitted to intercalate an academic year, in one case because of illness, and in the other, to enable her to decide whether she was on the right path, should be held to have abandoned their courses of study, notwithstanding their intention to return to them.
4. In rejecting the claimant's appeal, the Appeal Tribunal recorded the following findings of fact:-

"In the academic year 1993/94 claimant was given leave of absence

to follow a placement year.

He was unable to obtain placement but his community - grant was

suspended for the year in anticipation of him being successful

in getting a placement.

He was not dismissed from his course and he has not abandoned it,

nor has he given any indication of withdrawing from it.

Regardless of his placement he intended to return to the College

in October 1994 and did in fact do so.

He therefore remains a student within the meaning of the

regulations."

The reasons for the Tribunal's majority decision were:-

"Claimant is a student attending a course of study and not available

for employment.

Regulation 61(a) claimant has started on a course and has not

abandoned it or withdrawn from it.

This case is distinguished from those where the students intercalated

either for personal reasons or ill health CIS/122/1992 and CIS/413/93

distinguished." [I would assume that the reference to CIS/122/1992

is a mistake for CIS/514/1992].

It was further recorded that one member dissented - "on grounds that the obtaining of placement is a condition of that part of the course to be followed in the academic year 93/94 and not having been placed, he was effectively withdrawn from the course."

5. Leave to appeal to the Commissioner was granted by the Tribunal Chairman on foot of an application based once again upon GB Decisions CIS/514/1992 and CIS/413/1993, (Clarke and Faul), which by that time had been considered by the Court of Appeal in England, where it was the unanimous view that the Commissioner had been wrong to hold that the students in question had "abandoned" their courses. However, by a majority, the Court decided that the claimants were nevertheless entitled to income support on the grounds, as I understand it, that there could not be periods of term or vacation within a course which a person was not in fact attending because he had been permitted to intercalate a year. I confess that I am at something of a loss to understand why "a course" on which a person has started should not continue to have periods of term or vacation within it, regardless of whether the person in question is attending that course. Nevertheless the majority decision of the Court of Appeal was that, in the circumstances of the cases under consideration, the claimants were entitled to income support on the basis that they did not come within the definition of "student" in regulation 61 of the Income Support Regulations.
6. In his written observations on the appeal Mr McLaughlin, the Adjudication Officer now concerned with this case, by letter dated 4th April 1996, expressed support for the minority Judgment of Lord Justice Hirst in the Clarke and Faul cases. He submitted, however, that the majority of the Appeal Tribunal had been correct in distinguishing those cases from the present one. The claimants Clarke and Faul had been permitted to take time off from their courses, whereas the claimant in the instant case was not taking time off from his course; but was still pursuing it. In conclusion, Mr McLaughlin submitted that, although the claimant did not obtain a work placement in relation to his sandwich course, he was still attending a course of study for the purposes of regulation 61 of the Income Support General Regulations.
7. I arranged an oral hearing at which, regrettably, the claimant was neither in attendance nor represented. The Adjudication Officer present was Mr McLaughlin, who had little to add to his comments in his letter of 4 April 1996. He did, however, draw my attention to paragraph (b) of the definition of "Student" in section 61 of the Income Support General Regulations and submitted that, even if the majority of the Appeal Tribunal had been wrong to distinguish the cases of Clarke and Faul, the claimant was nevertheless a person on a sandwich course. He was therefore to be treated as attending a full-time course of study and had correctly been held by the majority of the Tribunal to be a student.
8. It is unfortunate that the claimant failed to take any part in the oral hearing of this appeal. I had hoped that the question of a student's possible entitlement to income support during the "year out" of a sandwich course might be discussed in detail; but it was not to be. I have, however, considered the judgments in the Clarke and Faul cases and the decisions of the GB Commissioners in CIS/368/1992, CIS/545/1993 and CIS/179/1994. The conclusion which I have reached is that, on the evidence that their disposal, it was open to the majority of the Appeal Tribunal to distinguish the Clarke and Faul cases in which students had intercalated for personal reasons or ill health. I further take the view that, by virtue of the provisions of paragraph (b) of the definition of "student" in section 61 of the Income Support General Regulations, the Tribunal were, in any event, correct in finding that the claimant remained a student within the meaning of the regulations and that, as such, he was not entitled to income support. I accordingly dismiss this appeal.

(Signed): R R Chambers

CHIEF COMMISSIONER

21 January 1997