Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C7_06_07(IS) (25 January 2007)

Decision No: C7/06-07(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 25 April 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the Department. Leave to appeal was granted by the legally qualified panel member against a decision dated 25 April 2006. That decision allowed the respondent claimant's appeal against a departmental decision dated 9 February 2006 disallowing income support (IS) to the claimant from 3 February 2006 (the date from which she claimed) on the basis that she was a student. I have had the benefit of reading the detailed grounds of appeal contained in a letter of 15 August 2006, prepared by Mr Seamus Toner from the Department's Decision Making Services branch. The respondent claimant is unrepresented and despite being given an opportunity to submit her observations, she has not replied.
2. The factual background is that the claimant commenced a course in the School of Health Services, Division of Nursing at The University of Liverpool in September 2005. On 12 January 2006 she unfortunately sustained an injury to her right hand forcing her to halt her studies. On 3 February 2006 she made a claim for IS on the basis that she was incapable of work. In a statement dated 7 February 2006 she stated "I have had to suspend my studies and hope to resume them in September 2006" she also confirmed that "I have not withdrawn abandoned or been dismissed from the course…" Her student loan and bursary had nevertheless been suspended.
3. On 9 February 2006 IS was disallowed. The decision-maker decided that the claimant had temporarily withdrawn from her course due to illness, that she remained a student and did not come under a prescribed category of person who is entitled to IS.
4. She appealed on 17 February 2006 on the grounds that she was not a student. She stated that she would not be entitled to a student loan for the rest of the year and she would not be sitting any exams in respect of the year. She stated "I will have to repeat the whole of my first year's studies again" and submitted a letter from the University in support.
5. On 25 April 2006 the tribunal allowed her appeal. It identified that the issue to decide was whether or not the claimant had abandoned her course at University. It found that the University's letter of 22 February 2006 set out the conditions for her to restart her course in September 2006. The tribunal concluded; "During this period the Appellant is not continuing to attend lectures nor is she required to carry out course work or follow any programme of study. She will not be sitting any examinations….If she pursues her intention to restart her course of studies in September 2006 (assuming she meets the conditions laid down by the University) she will be doing so ab initio and not on a continuation basis. Her recommencement of the course is not automatic as she has to satisfy the conditions laid down by the University. She must satisfy the University that she is medically fit. In the meantime she has no further contact with nor any connection to the University."
6. As a consequence of these findings of fact the tribunal decided that the "Appellant has abandoned her course of studies within the meaning of Regulation 61 [of Income Support (General) Regulations (Northern Ireland) 1987] and is not therefore a student within the meaning of that Regulation…"
7. The relevant legislation is contained in Regulation 61(2) of the Income Support (General) Regulations (Northern Ireland) 1987. The effect of this is that the claimant, having been a full-time student whose course was not completed could not be entitled to IS until she "… finally abandons the course or is dismissed from it". The tribunal correctly identified this issue and had to decide whether she had finally abandoned her course, the dismissal point not being relevant.
8. The tribunal laid reliance upon the fact that the claimant's recommencement of the course was not automatic and that she would therefore be starting the course, ab initio. It concluded in effect that she had abandoned her original course for a new one. The tribunal did not address her statement to the Department on the 7 February 2006 when she confirmed that "I have not withdrawn abandoned or been dismissed from the course". Further, the letter from the University of 22 February 2006 was headed "Ref: Suspension of Studies" and the preconditions imposed merely related to her fitness and notification of her intention to restart her studies by 1 August 2006.
9. I consider that the tribunal erred in that it failed to deal with the claimant's statement of 7 February 2006 and the College's subsequent letter which indicated that she had not abandoned her course at the date of the decision made on 9 February 2006.
10. Furthermore, for the tribunal's decision to be correct it would have to be a sustainable conclusion on the facts that the claimant had abandoned her course as of that date. I consider that it was not a reasonable conclusion. The college held a place for her subject only to her physical fitness and her expressing a desire to resume her studies. This can not be said to constitute a different course or be evidence that she had abandoned her existing course. I consider therefore that the tribunal has erred in law and I set its decision aside as one which no reasonable tribunal could have reached on the evidence.
11. I consider that I can give the decision which the tribunal should have given. There is adequate evidence before me to enable me to do so and I consider it appropriate especially as the matter has been under appeal for some time. My decision is that the Department's decision of 9 February 2006 is upheld. The claimant is not entitled to IS from 3 February 2006 as she was a full-time student who had not abandoned or been finally dismissed from her course.
12. The Department wins its appeal.

(signed): M F Brown

Commissioner

25 January 2007