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Driver v. Chief Adjudication Officer [1996] UKSSCSC CIS_467_1993 (06 December 1996)

R(IS) 6/97

(Driver v. Chief Adjudication Officer)

CA (McCowan, Peter Gibson, and Waller LLJ) CIS/467/1993

Student - claimant unemployed during placement period within a full-time sandwich course - whether attending a "full-time course of study"

In September 1989 the appellant began a full-time sandwich course of seven semesters (a semester being a term of six months) finishing in February 1993. Semester 5, between September 1991 and February 1992, had to be spent on an industrial placement. The appellant began that placement in September 1991 but because of the recession and consequent financial difficulties her employer ended her placement on 11 October 1991. As a result the appellant was without any source of income because she had no earnings from a placement and no student grant during the placement period. On 3 November 1991 she applied for income support. Her claim was disallowed by the adjudication officer on the ground that she was a student attending a full-time course of study. The social security appeal tribunal agreed and the Commissioner upheld the decision of the tribunal. The appellant appealed to the Court of Appeal.

Held, dismissing the appeal (Waller LJ dissenting), that:

following Secretary of State for Social Security and Chief Adjudication Officer v. Clarke and Faul [1995] ELR 259, R(IS) 25/95, and The Times, February 22, 1995, CA, for the duration of semester 5 the claimant could not be said to have abandoned or been dismissed from her course;

semester 5 could not be regarded as an "unnamed period" (i.e. an undefined period being neither a period of term nor of vacation) equivalent to the intercalated period which was being considered in Clarke and Faul (supra). Semester 5 had always been intended to be a period of experience and not of full-time study and could fairly be described as a period of term within the course of seven semesters.

DECISION OF THE COURT OF APPEAL

Miss N. Lieven (instructed by Messrs Richard Pointer, London, N8) appeared on behalf of the Appellant.

Mr. M. Hunt for Mr. R. Singh (instructed by The Treasury Solicitor, London, SW1 and The Solicitor for the Department of Social Security, London, WC2) appeared on behalf of the First and Second Respondents.

LORD JUSTICE McCOWAN: This is an appeal against the decision of the social security Commissioner, Mr. Morcom, dated 8 December 1994 that the appellant did not qualify for income support at the material time, 5 November 1991, on the ground that she was a student within the meaning of the relevant regulations.

In September 1989 the appellant began a full-time sandwich course in interior design at the Polytechnic of North London. The course was to be for seven semesters finishing in February 1993, of which semester five between September 1991 and 10 February 1992 had to be spent on an industrial placement.

In September 1991 the appellant began an industrial placement with a firm of architects but on 11 October 1991 the firm ended her placement because of the recession and their resulting financial difficulties. The appellant then had no source of income because she was not receiving any pay and was not in receipt of a student grant for the sandwich period of her course. Therefore, on 3 November 1991 she applied for income support (IS) but was refused IS by the adjudication officer on the ground that she was a student attending a full-time course of study. The social security appeal tribunal agreed. She appealed to the social security Commissioner but he held that she did not qualify for IS at the material time.

That decision, which is now under appeal, was given on 8 December 1994. There followed, on 14 February 1995, the decision of the Court of Appeal in Clarke and Faul [R(IS) 25/95], and on 11 October 1995, leave to appeal to this Court, which had previously been refused by Mr. Morcom, was granted by Lord Justice Simon Brown.

I turn to consider the relevant Act and regulations. By section 20(3)(d)(i) of the Social Security Act 1986 a person is entitled to income support if he is available for and actively seeking employment. The present case turns on whether as a matter of law under relevant regulations, the appellant was available for employment.

The principal regulations at the material time were the Income Support (General) Regulations 1987. Regulation 10(1)(h) provided that a claimant is not to be treated as available for employment if he is a student during the period of study. Regulation 2(1) provided that "student" has the meaning prescribed by regulation 61, which in turn provided that "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 last day 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, of study."

Regulation 2(1) also provides that "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.

The question in the appeals of Clarke and Faul was whether a student whom a university permitted to withdraw from a course for an academic year or other substantial period was eligible for income support.

Miss Clarke began a three year 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 the course. The University then approved her request to intercalate the academic year 1991-2.

Miss Faul for her part began a three year course in the School of English and American Studies also in October 1989 but fell ill during the Michaelmas term of 1991. The University allowed her to intercalate the two remaining 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.

It was held by the Court of Appeal that "abandonment" in the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987 should be construed in its context as connoting permanent abandonment. There was, however, a difference of opinion as to whether during the intercalated periods Miss Clarke and Miss Faul were students "during the period of study". Hoffmann LJ said: "One cannot sensibly have periods of term or vacation within the course when the students are not attending the course at all."

Agreeing with him, Glidewell LJ said that the intercalated years "cannot be fairly described as a period of either term or vacation within the course".

Miss Lieven in the present case likewise agreed that the appellant had not before the last day of the course abandoned or been dismissed from the course. But was she not to be treated as attending it throughout any term or vacation within it? Miss Lieven argued that the point was basically the same as in the case of Clarke and Faul and that we were bound by the decision in that case to rule in the appellant's favour.

What then is the equivalent here of the intercalated year? Miss Lieven says that there are certain unnamed periods in a course which are neither term nor vacation. At the worse, she asks us to remit the case to the social security appeal tribunal for them to decide, on evidence from the appellant and the polytechnic what periods were respectively term, vacation and unnamed (this, she said, being a question of fact). For my part I cannot think this a useful exercise. In my judgment, we are concerned here with a question of construction, and the regulation clearly states that a person who has started on such a course shall be treated as attending it throughout any term or vacation within it until the end of the course. As to Clarke and Faul I find the difference in the facts of crucial importance. I cannot, in any way, equate the intercalated year with Miss Lieven's unnamed periods. I quite understand Hoffmann LJ saying that one cannot sensibly have periods of term or vacation within the course "when the students are not attending the course at all" or Glidewell LJ that the intercalated year "cannot be fairly described as a period of either term or vacation within the course". I have no problems, however, in this case in saying that in semester five between September 1991 and 16 February 1992 when the appellant was on a sandwich course she is to be treated as attending the course of study.

Accordingly, I would dismiss the appeal.

LORD JUSTICE PETER GIBSON: In the absence of authority I confess that I would have arrived without too much difficulty at the conclusion that on the true construction of the Income Support (General) Regulations 1987 ("the General Regulations") Miss Driver was between October 1991 and February 1992 not eligible for income support. That is because a person's eligibility for that benefit depends on that person not being "a student during the period of study" (s. 20(3)(d) Social Security Act 1986 and reg. 10(1)(h) of the General Regulations), and the definitions of "student" in reg. 61 and "the period of study" in reg. 2 of the General Regulations seem to me to emphasise that once a person commences a qualifying course, he is to be treated as attending the course until the last day of the course unless earlier he permanently abandons the course or is permanently dismissed from it. Miss Driver was in the relevant period in her fifth semester of the seven semesters of the sandwich course which she had commenced in September 1989 at the Polytechnic of North London and she had neither abandoned the course nor been dismissed from it. A semester is a term of six months.

However the decision of this court in Chief Adjudication Officer v. Clarke and Faul [1995] ELR 259 [R(IS) 25/95] is relied on by Miss Lieven for Miss Driver on the basis that the period between the cesser of her employment in the fifth semester and the commencement of the sixth semester is a period to be treated by analogy with the intercalated periods in that case, and just as Ms. Clarke and Ms. Faul were held to be outside the definition of student in those periods and so entitled to income support, so, it is said by Miss Lieven, Miss Driver was also not a student in the relevant period and was accordingly entitled to income support.

The reasoning of Hoffmann LJ was that in para. (a) of reg. 61 the presence of the words "throughout any period of term or vacation within [the course]" was intended to impose an additional requirement, viz that the student is treated as attending the course during such times as (a) fall after he starts the course and before it ends or he abandons it or is dismissed, and (b) are periods of term or vacation; that excludes an intercalated period which cannot fairly be described as a period of term or vacation within the course. Such an interpretation, Hoffmann LJ thought, was consistent with the expectation that a student's exclusion from social security benefits would be mirrored by his entitlement to an education award and a student loan. Glidewell LJ considered that the fact that reference was made in para. (a) to terms and vacations was an indication that it was to those periods, and not to an intercalated period when the student was not attending a full-time course of study, that the extended definition of attending a full-time course applied.

There are, to my mind, obvious differences between the intercalated periods in Clarke and Faul and the relevant period in the present case. The significance of the intercalation was brought out in a notice addressed to Ms. Clarke by the University of East Anglia. That made clear that when that university gave permission to a student to intercalate, the intention was that the student should leave the university and would be expected to stay off the campus. As Hoffmann LJ said (at p. 260), the intercalated period was to be an academic annus non. Ms. Faul was a student at the same university and there is no reason to think that the intercalation of the last two terms in the 1991/92 academic year (with the requirement that she should repeat the Michaelmas term when she resumed in October 1992) was treated any differently by the university. It is to be noted that in neither case was there any question of the intercalation of part of a term. Contrast Miss Driver's position. The fifth semester for her was always intended to be a period of experience (within the sandwich course as defined in para. 1(1) Sch. 5 to the Education (Mandatory Awards) Regulations 1987) away from the polytechnic. She did obtain some professional experience as intended and arranged by the polytechnic before the cesser of her employment and the fact that she was unable to obtain another placement in no way affected the completion by her of the sandwich course. It is wholly immaterial that the polytechnic did not give her any tuition in the remainder of the fifth semester as it had never been intended that she should receive such tuition in that semester. In short the remainder of the fifth semester was simply not an intercalated period.

Much was sought to be made by Mr. Singh for the Chief Adjudication Officer of the fact that Hoffmann LJ in Clarke and Faul placed reliance on the link between inter alia the students loan scheme and the exclusion of students from social security benefits. Miss Driver was eligible for a student loan, and so, Mr. Singh argues, this should be mirrored by ineligibility for income support. I have to say that I cannot obtain a great deal of assistance from this point. As Waller LJ pointed out in the course of argument, it is hard to see why Ms. Faul was not eligible for a student loan. Further, in view of the different criteria for a person to be entitled to a student loan and those for entitlement to income support, I do not think it follows from eligibility for a student loan that the person in question is not entitled to income support. It would be very surprising if it did follow, given the modest amount of the student loan which is plainly insufficient to fulfil the function of income support.

How then is the question whether Miss Driver was a student within the definition of reg. 61 to be resolved consistently with Clarke and Faul? The definition requires the student to be attending a full-time course of study at an educational establishment, but the meaning of such attendance is extended by the deeming provisions in paras. (a) and (b). It was common ground before us that the two paragraphs are not disjunctive and that regard must therefore be had to both.

I start with para. (b). It was not disputed by Miss Lieven that at the relevant time Miss Driver was on a sandwich course. The definition of "sandwich course" requires there to be a period of industrial, professional or commercial experience between periods of full-time study in an establishment. In other words there can be no sandwich course unless the student is for a period or periods not attending a full-time course of study but is having a period or periods of experience. Hence the need for para. (b), and that plainly requires the student on the sandwich course to be deemed to be attending a full-time course of study.

When one turns to para. (a), it commences with the words "a person who has started on such a course" i.e. a full-time course of advanced education or study at an educational establishment. A person who has started a sandwich course is therefore either outside para. (a) as not attending a full-time course of education or study, or, more likely, such a person is to be treated by reason of para. (b) as having started such a course. But, if the latter, then necessarily he will have a period or periods of experience within the course when in fact he will not be attending a full-time course of study. In the case of Miss Driver I do not see why the fifth semester, which was always intended to be a period of experience and not of full-time study, cannot fairly be described as a period of term within the course of seven semesters. I find it hard to believe that the draftsman of the General Regulations intended a person who is to undergo a period of experience, for which that person is likely to be paid, as a planned part of the sandwich course, to be outside the definition of student and so not rendered ineligible for income support. If the fifth semester is a period of term, then the part of that semester during which Miss Driver was unemployed did fall within the period of term. A semester is a term. If a period of experience which is an integral part of the sandwich course cannot be described as a term, then that suggests that para. (a) cannot apply and para. (b) must govern the position. Either way Miss Driver was a student at the relevant time.

I cannot see any justification for Miss Lieven's submission that there should be a remission to the tribunal of the question whether the relevant period was a period of term. We know the relevant facts. It is a question of law.

For my part therefore I would dismiss this appeal. I do so with regret, as I have every sympathy with Miss Driver, left as she was unexpectedly and through no fault of her own without paid employment and yet without a grant or award and without being eligible for income support. I have to say that the social security system seems to me deficient in failing to meet the very real needs of a person in Miss Driver's position.

LORD JUSTICE WALLER: It is common ground that the result of this appeal depends on the proper construction of the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987. That definition reads as follows:

"student" means 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 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, of study ..."

That definition was recently considered by the Court of Appeal in Clarke and Faul [1995] ELR 259 [R(IS) 25/95]. By a majority, the Court of Appeal decided that in relation to persons who might otherwise be students, and who had been allowed to intercalate a year during their course, they were not students during the intercalated year. The basis of the majority's decision was that the words which I shall underline in sub-para (a) "a person shall be treated as attending it throughout any term or vacation within it ..." applied so as to exclude an intercalated year since the persons were not during that year attending during a term or vacation.

In this case we have to consider the position of someone who was attending a sandwich course. Subsection (b) as quoted above deems a person on a sandwich course to be attending a full-time course of advanced education, but it is accepted that that does not necessarily conclude this appeal because (b) cannot be read disjunctively from subsection (a). That (b) cannot be read disjunctively from (a) is obvious because of course (a) must be intended to apply to a person on vacation during a sandwich course (or at the very least during a major part of a sandwich course) just as much as to a person on a full-time course.

The question that arises on this appeal is whether the reasoning of the majority of the Court of Appeal by which they reached their conclusion that intercalated years taken by persons otherwise on full-time courses were not "terms or vacations", applies to the placement period taken by Miss Driver in this case during her sandwich course.

Hoffman LJ as he then was in Clarke and Faul was influenced in his approach to construction by various matters. First, he thought that where two possible constructions were available, it was right to look to see whether if a student was excluded from social security benefit, that exclusion would be "mirrored" by an entitlement to an education award or a student loan. In Clarke and Faul his conclusion was that neither an award nor a student loan would have been available. Second, it is apparent that he was influenced by the fact that an intercalated year was for a student an annus non, and he recited the letter addressed in that case to Ms. Clarke which was in the following terms:

"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.

During your absence you will remain a member of the university, ie 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.

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."

He, in the result, concluded that the argument of Mr. Drabble in that case for the student should be accepted, which was neatly reflected in one sentence of the judgment in the following terms "One cannot sensibly have periods of terms and vacations within the course when the students are not attending the course at all."

Glidewell LJ would have supported Hoffman LJ's approach if necessary but expressed his view as a matter of construction unaided as follows:

"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 it 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."

The position of Miss Driver, and perhaps many, while attending the placement aspect of a sandwich course, has many similarities but also some differences from those permitted to take intercalated years.

First, Miss Driver was not able to obtain a grant or award. When she applied, the response was reflected in two sentences in a letter from the London Borough of Croydon to the Department of Social Security (Appeals Tribunals) dated
12 February 1992 as follows:

"She was referred to the Education Department to investigate the possibility of obtaining a grant for the period in question. Unfortunately as Miss Driver was not in full-time attendance at college, the Education (Mandatory Awards) Regulations did not permit the payment of grant for the placement period."

On the other hand it would appear that she would still have been eligible for a student loan. But two points should be made in relation to that; (1) The amount available to Miss Driver would have been an amount in relation to a whole year and that amount would have been apparently no more than £460 (see regulation 6(1)(b) of The Education (Student Loans) Regulations 1991). Loans at the relevant time were a top-up, and not intended as a means to provide on their own a subsistence allowance to students; (2) Albeit it was assumed that Clarke and Faul were not eligible for student loans, I am not myself quite clear why, in relation to Ms. Faul, she would not in fact have been eligible, and it is apparent from Hoffman LJ's reference to the fact that it was possible that she might have obtained such a loan, at least prior to her becoming ill, that the loan aspect was not the most important section of the mirror.

Second, it would seem that Miss Driver would, during the placement, have still been entitled to use the library facilities. How much of the other facilities of the university would have been available to her is perhaps not quite clear save that the only proper inference which can be drawn from the letter from the university at page 57 dated 4 September 1992 is that she certainly was not entitled to attend lectures and resume the academic side of the course during the fifth semester.

Third, (and this is a point much relied on by Mr. Rabinder Singh), whereas an intercalated year cannot be said to be "part of the course" because it is simply a year for which the student obtains permission to stay away, the placement is part of a sandwich course, it being planned from the outset that as part of the qualifying process the student will be required to spend the fifth semester on a placement presumably if one is available. The letter from the university uses the language in relation to the placement "the sandwich placement element of the course".

It is however also important to recognise that if the language of the letter has a bearing, that it also talks of two years being spent on "full-time education" prior to placement and of a "return to full time education" on 10 February 1992, and, as I have said, the clear inference to be drawn is that Miss Driver was not to be entitled to return to the university to pursue her education during the period while she should have been on placement.

I have found the matter a very difficult one. I have to say that I am unconvinced by Mr. Rabinder Singh's suggestion that because a student loan would have been available to Miss Driver that produces the mirror entitlement to counter the lack of entitlement to social security benefits. If Parliament is to be presumed to be acting so as to ensure that there is not a gap or anomaly leaving sandwich course students such as Miss Driver practically destitute, that points very much in favour of Miss Lieven's arguments for Miss Driver. On the other hand, whereas an intercalated year could never be said to be part of the course, a placement would certainly at first sight seem to be.

Ultimately, to reach a conclusion, I believe it is right to take account of the fact that (a) and (b) are deeming provisions which in this instance are intended to exclude a person from benefits to which they would otherwise be entitled. If I follow the reasoning of Glidewell LJ and start with the general words and ask "was Miss Driver in October 1991 attending a full time course of study at an educational establishment?", then the answer to that question must be "No". She was not physically present at any lectures and she was not indeed intended to be. The next question is "must she be deemed to be doing so by subsection (b)?". The answer to that question is "no not necessarily". At one time it was to be argued that the answer to that question was "yes" and that it was unnecessary to consider subsection (a), but quite properly that cannot be argued, and in my view all (b) does is to make clear that a course which contains a sandwich i.e. a placement element, is still full-time provided (a) also applies.

The ultimate question is thus whether Miss Driver must be treated as attending a full-time course simply because the period of placement coincides with a period of term or vacation, or must the term be one during which it was at least contemplated she would attend the establishment for education, and the vacation a vacation from such a term. If she is not expected in any way to attend for lectures at the establishment during the period of placement, then the term is a non term so far as full-time education is concerned, and vacation while she is on placement cannot be described as vacation from such a term.

Therefore, following the reasoning in Clarke and Faul, in my view Miss Driver was not a student during the period when she was intended to be on a placement and when the university was not prepared to allow her back to resume her full-time studies.

Miss Lieven was inclined to argue that the matter should be remitted to the tribunal in order to find whether as a fact the period on placement was "term or vacation". I do not for my part think that that is necessary in this case where the relevant facts (so far as the views I have sought to express are concerned) are not I think in issue.

I would accordingly allow the appeal.

Order: Appeal dismissed. Respondent's costs not to be enforced without leave. Legal aid taxation