UK Social Security and Child Support Commissioners' Decisions

Chief Adjudication Officer v. Clarke Chief Adjudication Officer v. Faul [1995] UKSSCSC CIS_514_1992 (14 Feruary 1995)

 


R(IS) 25/95

(Chief Adjudication Officer and Anor. v. Clarke
Chief Adjudication Officer and Anor v. Faul)

CA (Glidewell, Hirst and Hoffmann LJJ) CIS/514/1992
14.2.95 CIS/413/1993

Student - intercalated year - whether attending a full-time course of study

The claimants were refused income support on the grounds that they were students within the meaning of regulation 61 of the Income Support (General) Regulations 1987. They appealed to the Commissioner who allowed the appeals because the claimants had "abandoned" their courses during the intercalated periods. The Chief Adjudication Officer and the Secretary of State appealed to the Court of Appeal.

Held, dismissing the appeal, that:

(unanimously) in the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987, "abandons" refers to final or total abandonment so the claimants had not abandoned their courses; but

(per Glidewell and Hoffman LLJ, Hirst LJ dissenting) an intercalated period is not for the purposes of paragraph (a) of that definition (as it then stood) a "period of term or vacation" within the course of study so the claimants are not to be treated as attending the course and are not therefore deemed to be students.

DECISION OF THE COURT OF APPEAL

Mr. R. Drabble (instructed by Solicitors to the National Union of Students) appeared on behalf of the Respondents.

Mr. R. Singh (instructed by Solicitors to Department of Social Security) appeared on behalf of the Appellants.

LORD JUSTICE HOFFMANN: The question in these appeals is whether a student whom the university permits temporarily to withdraw from a course for an academic year or other substantial period is eligible for income support. Both respondents were students at the University of East Anglia. Ms. Clarke commenced a three year degree course in the School of Environmental Sciences in October 1989. At the end of her second year she was uncertain whether she was on the right path and applied for leave to take a year off to think about her future before resuming her course. By a letter dated 10 July 1991 the University approved her request to intercalate the academic year 1991-2. "Intercalate" is a suitable latinate word meaning to insert an extra period into the calendar. "Twas the manner of the Jews (if the year did not fall out right)" remarked John Selden "to intercalate a month, and so to have, as it were, two Februarys." (Selden's Table Talk, 1654). The letter to Ms. Clarke was accompanied by a notice making it clear that the intercalated year was to be an academic annus non. It said:

"1. When the University gives permission to a student to intercalate, its intention is that the student should leave the University; you will be expected to stay off the campus.

2. During your absence you will remain a member of the University i.e. your name will be included in the official register of students, but your status as a "student in attendance at the University" is in abeyance.

3. Your privileged access to University facilities is in abeyance and specifically:

(1) You will not be given a place in University residences or allowed to continue in occupancy of a room in University residences ...

(2) You will not be allowed library borrowing facilities ...

(3) You will not be allowed to attend classes or receive tuition of any kind."

Ms. Faul began her three year degree course in the School of English and American Studies at the same time as Ms. Clarke. During the Michaelmas term of 1991 she had the misfortune to fall ill. The University allowed her to intercalate the remaining two terms of the 1991-2 academic year with a view to resuming the course in October 1992, when she would have to repeat the Michaelmas term of the previous year.

During her first two years at University, Ms. Clarke was supported by a major award from her local education authority under section 1 of the Education Act 1962 and, in her second year, a student loan under the Education (Student Loans) Act 1990. Both awards and loans are made on an annual basis and can be made only in respect of attendance at courses. Ms. Clarke was therefore not eligible for either an award or loan in respect of the academic year 1991-2 because she was not attending a course during that year. Ms. Faul had an award for her first two years and had already received an award for her third year before she fell ill. But regulation 26 of the Education (Mandatory Awards) Regulations 1991 provided as follows:

"(2) In respect of any period-

(b) during which a student is excluded from, attendance at the course by the academic authority...

any payment otherwise due in pursuance of an award shall be reduced by the aggregate sum mentioned in paragraph (4).

(3) In respect of any other period being-

(a) a period during which the student is absent from his course (other than a period of not more than 28 days due to illness);

the authority may reduce any payment due in pursuance of the award by such amount, not exceeding the aggregate sum mentioned in paragraph (4), as having regard to all relevant circumstances they consider appropriate.

(4) The sum referred to in paragraphs (2) and (3) is the aggregate of-

(a) fees otherwise due that are not payable by reason of the student's non-attendance; and

(a) the appropriate proportion of the balance of any payments in respect of maintenance ..."

Pursuant to this regulation, Ms. Faul's local education authority did not pay her award for the intercalated terms. There is no evidence as to whether she had obtained a loan before she became ill but if she had not, she would for similar reasons not have been entitled to apply for a loan in respect of the rest of the academic year.

So far as the University was concerned, Ms. Clarke and Ms. Faul were free during their intercalated year to do whatever they pleased, including remunerative work. Ms. Clarke was unable to obtain work and therefore applied for income support. It is a condition of entitlement to income support that, subject to certain exceptions, the claimant should be available for and actually seeking employment. Ms. Clarke satisfied this requirement. Ms. Faul did not, because she was ill, but she fell within an exception by which sick persons need not be available for employment; regulation 8 and paragraph 5 of Schedule 1. On the other hand, both Ms. Clarke's actual availability for work and Ms. Faul's excuse are overridden by regulation 10(1)(h), which says that a claimant shall not be treated as available for employment if he is "a student during the period of study". The question in these appeals is whether during their intercalated periods Ms. Clarke and Ms. Faul were students during the period of study.

Both "student" and "period of study" are defined in regulation 2. "Period of study" means:

"the period beginning with the start of the course of study and ending with the last day of the course or such earlier date as the student abandons it or is dismissed from it"

"Student" has the meaning prescribed in regulation 61, which is as follows:

"a person ... aged less than 19 who is attending a full time course of advanced education or, as the case may be, 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 last day of the course or such earlier date as he abandons it or is dismissed from it."

The Commissioner held that during the relevant period Ms. Clarke and Ms. Faul were not students within this definition. They were plainly not attending a full-time course of study at an educational establishment. Nor were they within the extended definition of "attending" in sub-paragraph (a) because in his view they had "abandoned" the course during their intercalated periods. The Chief Adjudication Officer appeals on the ground that "abandon" means to give up finally. He says that a course which can be resumed after a year has not been abandoned.

We were referred to a number of decisions by Commissioners in England and Northern Ireland in which different views have been expressed on the meaning of "abandon". Examples are given of the use of abandon in senses which are not final, such as the motorist who abandons his car in dense fog to walk home but still intends to return to collect it when the fog lifts. I readily accept that abandon may legitimately be used in such a sense. But I am quite satisfied that it cannot have this meaning in the definition of "student" in regulation 61. The context places the word in conjunction with two other events which are undoubtedly final, namely the end of the course and the student's dismissal from it. Furthermore, nothing short of total abandonment can make the definition work. If the commencement of an intercalated year means that the definition no longer applies, what happens when the student returns a year later? The definition cannot apply to the remainder of the course, because it contemplates that the period which ends with the last day of the course will have begun with the student starting on the course, not with his resuming it after a break. On this point, therefore, the Chief Adjudication Officer is in my judgment correct.

But Mr. Drabble, who appeared for Ms. Clarke and Ms. Faul, took a different point by way of respondent's notice. He said that sub-paragraph (a) of the definition of "student" in regulation 61 did not say, as it might have done, that a student who had started on a course should be treated as attending it throughout the period of study as defined in regulation 2. (I say "as defined in regulation 2" because regulation 61 has a different definition of "period of study" for the purposes of Chapter VIII of the regulations). Instead, the student who has started on the course shall be created as attending "throughout any period of term or vacation within it until the last day of the course or such earlier date as he abandons it or is dismissed from it." Mr. Drabble says that if the definition means what the Chief Adjudication Officer says, the words I have italicised might as well have been left out. Therefore, says Mr. Drabble, they must have been intended to impose an additional requirement. The student is treated as attending the course during such times as (a) fall after he has started and before it ends or he abandons or is dismissed from it, and (b) are periods of term or vacation within it. Mr. Drabble says that his clients' intercalated periods satisfy (a) but not (b). One cannot sensibly have "periods of term or vacation within the course" when the students are not attending the course at all.

The definition is by no means clear. Mr. Drabble must be right in saying that on the Chief Adjudication Officer's construction, the italicised words are surplusage. Mr. Rabinder Singh says on his behalf that the words merely emphasise that the student is deemed to be attending even when he is on vacation. I do not find this explanation altogether satisfactory because if the definition has simply said that a person who had started on a course should be treated as attending it throughout the period of study as defined in regulation 2, the meaning would have been perfectly clear and no emphasis would have been needed. In my judgment both Mr. Drabble's construction and Mr. Rabinder Singh's construction are possible. In order to choose which is correct, it is necessary to examine the purpose for which the definition has been constructed.

Until 1986, students actually available for work were able to claim unemployment benefit if they signed on as available for work during the vacations. The social security regulations were then amended to prevent them from claiming during the Christmas and Easter vacations. The rationale for excluding only these vacations was that the maintenance element in a student's award or grant was calculated as sufficient to support him during the academic year, including the Christmas and Easter vacations but excluding the summer vacation between academic years.

The Education (Student Loans) Act 1990 enabled students to obtain loans in addition to awards and grants. The Act gave effect to proposals in a White Paper called "Top-up Loans for Students" (Cm. 520). One of the purposes of the Act was to enable students, by a combination of awards and "top-up" loans, to support themselves throughout the calendar year. This made it possible to exclude most students from social security benefits altogether. The link between the loan scheme and the exclusion of students from social security is shown by the Explanatory and Financial Memorandum to the Bill published on 22 November 1989:

"In due course, loan repayments, combined with savings arising from excluding the majority of students from social security benefits and from ceasing to up-rate the maintenance grant, will exceed loan outgoings and administration costs, resulting in net savings to the Exchequer."

The necessary amendments to the social security regulations, including those with which I have been concerned in the Income Support (General) Regulations 1987 were made by the Social Security Benefits (Student Loans and Miscellaneous Amendments) Regulations 1990, SI 1990 No. 1549, and came into force at the same time as the student loan scheme came into operation. One would therefore expect that a student's exclusion from social security benefits would be mirrored by his entitlement to an education award and a student loan. Otherwise there would be an anomalous class of people who for no obvious reason were left to destitution without state support of any kind. It is of course possible that for some reason which escapes us, such an anomaly was intended by the draftsman. But the courts should, I think, try to construe the regulations to reflect a coherent policy unless the language clearly makes this impossible.

In my judgment, Mr. Drabble's construction would accord with the purpose of the 1990 amendments and Mr. Rabinder Singh's would not. Mr. Rabinder Singh said that the purpose of the amendments was to exclude students as a class from social security benefits. That is true, but I think, with all respect to an attractive argument, that it begs the question of who for this purpose counts as a student. If the words "throughout any period of term or vacation within it" are given the effect for which Mr. Drabble contends, the claimant is a "student" for the purposes of the regulations while he is attending the course and he is deemed to attend the course not only during term time but also during any times which can be described as a period of vacation within the course. These are precisely the times for which, under the awards and loans system, he would be entitled to support. On the other hand he is not a "student" when his attendance at the course has been suspended by an intercalated period such as Ms. Clarke and Ms. Faul obtained. Such a period cannot be fairly described as a period of either term or vacation within the course.

I should add in conclusion that what counts as "vacation" for the purposes of the regulations is a matter of substance rather than the name which the University chooses to give it. Universities should not be encouraged by this decision to think that they can assist their students to raid the Exchequer by allowing them to "intercalate" the months between June and October in each year.

I would dismiss the appeals.

LORD JUSTICE HIRST: I agree that "abandonment" in the definition of "student" contained in regulation 61 of the Income Support (General) Regulations 1987, SI 1987 No 1967, should, contrary to the view of the Commissioner, be construed in its context as connoting permanent abandonment, for the reasons given by Hoffmann LJ.

However, I have the misfortune to disagree with the majority as to the construction of the definition as a whole and in particular of the crucial phrase which I have highlighted as follows:

"Student" means a person 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 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 abandoned it or was dismissed from it".

Sub-paragraph (a) taken as a whole clearly defines a period beginning with the start of the course and ending with its final conclusion, whether by completion of the course, or by dismissal, or by abandonment (as construed above). In my view the crucial phrase in no way qualifies this definition, but, on the contrary, serves to stress that the period continues unbroken through both terms and vacations, and is not interrupted by the latter.

This construction is, I think, fully consistent with the syntax of sub-paragraph (a) as a whole, and is also borne out by the emphasis on continuity implied by the use of the preposition "throughout" which is defined in the Oxford Dictionary as "from beginning to end of" or "during the whole of". Conversely, this preposition is most inapt to introduce a qualification to the defined period.

This construction is also purposeful, seeing that until November 1986 students had been able to claim social security benefits during the Christmas, Easter and summer vacations.

I fully appreciate the force of the social considerations which have influenced the majority, and I recognise that the construction which I favour will result in some intercalating students slipping through the welfare net.

But I do not think this consideration can properly be invoked to alter what to my mind is the clear construction of the regulation.

For these reasons I, for my part, would allow this appeal.

LORD JUSTICE GLIDEWELL: I have read in draft the judgments of Hoffmann LJ and Hirst LJ. I agree with them that the word "abandons" in the definition of "student" in regulation 61 of the Income Support (General) Regulation 1997 is to be construed as meaning "gives up the course finally." Thus if this were the sole issue argued before us, I would allow the appeal.

We have, however, also heard argument on the point raised in Mr. Drabble's Respondent's notice.

Regulation 61 so far as is relevant defines a student as:

"... a person ... 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 last day of the course or such earlier date as he abandons it or is dismissed from it."

If the definition were simply the first phrase quoted above, it would be clear that during an intercalated year, the person concerned would not be a "student" within the definition, because he or she would not be "attending a full-time course of study". How far does the extension of the definition in paragraph (a) alter this normal meaning of "attending a full-time course"? Undoubtedly this extension makes it clear that the student is to be treated as attending the full-time course of study not merely during term-time but during all vacations. If the intention of the draughtsman of the regulations was that the person was to be treated as attending the course during an intercalated year, this, as Mr. Drabble argues, would be achieved by omitting the reference to terms and vacations, which would thus be superfluous. The fact that reference is made to terms and vacations is an indication, in my view, that is to those periods and not to an intercalated year, that the extended definition applies. In my judgment, therefore, a person who is absent from an educational establishment during an intercalated year is not "attending a full-time course of study at the establishment" within regulation 61.

If, however, that conclusion cannot confidently be reached as a matter of unaided construction of the regulation, I agree entirely with the observations of Hoffmann LJ about the apparent purpose of the regulation. This strongly supports the view I have already expressed on the proper construction of the regulation.

For these reasons, as well as those expressed by Hoffmann LJ, I conclude that the decision reached by the social security Commissioner was correct. I would therefore dismiss both appeals.

Order: Appeal dismissed with costs. Legal Aid Taxation. Leave to appeal to House of Lords with undertaking not to disturb order for costs.