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Chief Adjudication Officer v. Webber [1997] UKSSCSC CIS_576_1994 (01 July 1997)

R(IS) 15/98
(Chief Adjudication Officer and Anor. v. Webber)

Mr. R. A. Sanders CIS/576/1994

CA (Evans, Peter Gibson and Hobhouse LJJ)

Student - claimant on modular course - whether "attending a full-time course"

The claimant was a student on a modular university course which was either part-time or full-time depending on the number of modules taken in any particular term. He was a full-time student in his first year but a part-time student in his second year. After becoming a part-time student, he claimed income support. The adjudication officer disallowed the claim on the ground that the claimant was a "student" because he had been attending a full-time course and was deemed by regulation 61 of the Income Support (General) Regulations 1986 to be attending it until the last day of the course. The claimant appealed to a tribunal who allowed the appeal on the ground that the claimant had been dismissed from the full-time course. The adjudication officer appealed to the Commissioner who held that the tribunal had erred in finding that the claimant had been dismissed from the course. However, he dismissed the appeal on the ground that whether or not a claimant was attending a full-time course was to be determined on the facts at the material time. The Chief Adjudication Officer and the Secretary of State for Social Security appealed to the Court of Appeal, arguing that the nature of the course was to be determined at the date of enrolment.

Held, dismissing the appeal, that:

(per Hobhouse LJ) a course which did not require full-time attendance could not be described as a full-time course;

(per Peter Gibson and Evans LJJ) applying Chief Adjudication Officer v. Clarke and Faul (reported as R(IS) 25/95), the claimant's second year was not a "period of term or vacation within" a full-time course;

(per Evans LJ) regulation 61 could not be relied on to create a status of full-time student which did not in fact exist.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the adjudication officer against the decision of the Oxford social security appeal tribunal, given on 9 June 1994, whereby the tribunal allowed the claimant's appeal against the decision of an adjudication officer refusing him income support from 1 October 1993 because, in the adjudication officer's view, the claimant was then a "student" within the definition provided by regulation 61 of the Income Support (General) Regulations 1987.

At the claimants request I held an oral hearing of this appeal. Mr. A. Prosser of Counsel represented the adjudication officer. The claimant, who was not present, was represented by Mr. P. Turville of Oxfordshire Welfare Rights, Barton Neighbourhood Centre.

On 23 September 1992 the claimant began what is referred to as a "modular course" at Oxford Brookes University. His field of study was environmental biology. Within the permitted limits of that University's regulations governing modular courses, the claimant was able to select the modules or topics to be studied and, again within certain limits, could spread them over the period of his choice. The records of the University show his "award aim" as BSc Hons. Modular. That aim, as I understand it, would take at least three years to achieve. A student could however settle for the lesser qualifications of certificate in higher education or diploma in higher education if he terminated his studies before successfully completing all the modules necessary for the award of the degree.

Attendance at the University is either full-time or part-time depending on the number of modules being taken by the student during any particular term. Regulation 15 of the University regulations governs the classification of students as full or part-time for fee assessment purposes. The current prospectus states, in relation to full-time students, that they spend their entire course except vacations on campus and that full-time first degree courses normally last three years. In relation to part-time study it states that, while patterns vary, the most common consists of one day and an evening a week during term time. The prospectus also describes "mixed mode" courses where "students attend the course on a full-time and part-time basis at different stages of the course". Students are not eligible for the full local authority grant or student loan unless they are full-time and if there is a change from full-time to part-time I understand the University will notify the grant awarding and loan making authorities.

During the three terms of the 1992 to 1993 academic year the claimant was classified by the University as a full-time student. During the first two terms of the academic year 1993 to 1994 he was classified as part-time. He did not attend at all in the third term of that year because none of his chosen modules was taught that term. He was part-time for the first term of the 1994 to the 1995 academic year and full-time for terms two and three.

Having become a part-time student for the 1993 to 1994 academic year the claimant made a claim for income support. The claim was at first allowed but then it is said the award was reviewed and terminated. That was because the adjudication officer took the view that the claimant was a "student" as defined by regulation 61 of the General Regulations and as such was not entitled to income support because, in accordance with regulation 10(1)(h) of the those regulations, he was required to be treated as not available for employment. "Student" in regulation 10(1)(h) is given the same meaning as in regulation 61 which defines "student" to mean (so far as relevant and as in force at the material time):

"... 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;"

I think the adjudication officer took the view that, as the claimant had started on what was said to be a full-time course, (a) of the definition meant that he had always to be treated as a "student" until the end of the course. The tribunal, who as I have said, allowed the claimant's appeal, took the view that when the claimants attendance changed from full-time to part-time he had, in the particular circumstances to which they referred, in effect been dismissed from the full-time course so that he was no longer a "student" within the definition. They also took account of the fact that the claimant "had been accepted as available for and was actually seeking work by the Unemployment Benefit office".

The issue before me is whether, as at 1 October 1993, the claimant was a "student" as defined by regulation 61. It is not in issue that at that time he was, at least from the point of view of Oxford Brookes University, a part-time student.

What is for consideration, in relation to the definition of "student", is whether the course in question is a full-time course. Mr. Prosser and Mr. Turville differed as to whether "the course" in this case was the whole of the course leading to the modular degree or to one or other of the lesser qualifications or whether, as Mr. Turville contended, each year was its own course. I am not sure that in the end it would necessarily make a difference but I have come to the conclusion, not least because of the way the prospectus is written, that the course is the whole course leading to the qualification. The prospectus, in relation to full-time first degree courses, says that they "normally last three years". In relation to "mixed mode", which seems to describe this claimants course, the prospectus says that "Students attend the course on a full-time and part-time basis at different stages of the course". In my view that shows that at least the University regarded the course as the whole of the studies leading to the qualifications and I see no reason to take a different view.

That however, in my view is not, as both Mr. Prosser and Mr. Turville seemed to think, the end of the matter. It seems to me that (a) of the definition is directed at securing that, once a person has started and remains on a full-time course, he is to be treated as attending that course until it ends; that part of the definition is not in my view directed at turning what is at the material time a course at which attendance is part-time into a full-time course. Whether or not a student is attending a full-time course has to be determined, as I see it, on the facts at the material time. That is consistent with the approach taken by the Commissioner in CIS/152/1994 when he directed the tribunal, to which he remitted the case, to find facts as to whether the full-time course on which the claimant had embarked had changed to a part-time course. He said (para. 15):

"As Ms. Yerrell put it, it is no longer sufficient to say [as in earlier cases] 'look at the course'. Relatively recent changes in the approach of educational authorities render such advice inadequate, the overall circumstances must be examined so that the realities of the situation may be ascertained".

The Commissioner's reference in that paragraph to "recent changes" was in fact a reference to the changeover by many universities and other educational institutions to modular courses.

In Clarke and Faul and the Chief Adjudication Officer etc. (judgment
14 February 1995 [reported as R(IS)25/95]) Hoffmann LJ made the point that ineligibility for income support of "students" as defined was to be taken in effect to be tied to eligibility for local authority grant and student loan. He said (page 9, B-D):

"One would therefore expect that a students 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".

Those two cases concerned students whose attendance at a full-time course had been suspended by an intercalated period. The Court of Appeal held that such a period could not fairly be described as a period of either term or vacation within the course. Thus the students in question did not, in that period, fall within the definition of "student". In the same way and consistently with the presumed intention of the provisions, a course which is at the material time a part-time course cannot, as it seems to me, fairly be described as a full-time course.

In this case it seems to me clear that the claimant was in the first two terms of the 1993 to 1994 academic year attending what had then become a part-time course and he was accordingly not then a student within the definition. In the third term of that year he was not attending the course at all; at all events he was not then attending a full-time course.

The tribunal were in my view wrong to conclude that the claimant had been dismissed from what had originally been a full-time course though their reasons for that conclusion are, as they explained them, understandable. I agree however with their decision to allow the claimants appeal and their conclusion that as at
1 October 1993 he was not a "student". It follows that I must dismiss the adjudication officer's appeal against that decision.

Date: 9 October 1995 (signed) Mr. R. A. Sanders

Commissioner

The Chief Adjudication Officer and the Secretary of State appealed to the Court of Appeal. The decision of the Court of Appeal follows.

DECISION OF THE COURT OF APPEAL

Mr. R. Singh (instructed by The solicitor to the Departments of Health and Social Security) appeared on behalf of the Appellants.

Mr. R. Drabble QC (instructed by Peter Turville, Oxfordshire Welfare Rights, Oxford) appeared on behalf of the Respondent.

HOBHOUSE LJ: This is an appeal brought with leave of the Commissioner from a decision of the social security Commissioner, Mr. Sanders, dated 9 October 1995, holding that Mr. Anthony Webber, who was born on 3 April 1973, was for a period commencing 1 October 1993 entitled to income support under the Income Support (General) Regulations 1987 as in force at that time. The question of law raised can be shortly stated; whether Mr. Webber was at the material time a student as defined by the regulations.

Under s. 124 of the Social Security Contributions and Benefits Act 1992 it is a requirement (subject to certain irrelevant exceptions) of entitlement to income support that the relevant person be "available for and actively seeking employment". Under regulation 10(1) "a claimant shall not be treated as available for employment if ... (h) he is a student during the period of study ...". Student is defined in regulation 2 as having the meaning prescribed in regulation 61. The phrase period of study is also defined as meaning:

"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; but any period of attendance by the student at his educational establishment in connection with the course which is outside the period of the course shall be treated as part of the period of study".

Last day of the course is defined as having the meaning prescribed by regulation 61 for the purposes of the definition of the period of study. Course of study is defined as meaning:

"Any full-time course of study or sandwich course whether or not a grant is made for attending it".

Regulation 61 is also a definitions regulation dealing specifically with students. The definition of student is:

"A person other than a person in receipt of training allowance 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;

(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".

Last day of the course is defined as "the date on which the last day of the final academic term falls in respect of the course in which the student is enrolled on".

It will be appreciated that the general scheme of these regulations is to identify a status, the status of student. The definition in regulation 61 and, indeed, the definition of period of study in regulation 2 both indicate that that status once acquired is a continuing one. This characteristic and the policy reasons for it as reflected in the legislation have been referred to in the judgment of Lord Justice Hoffmann in CAO v. Clarke and Faul [1995] ELR 259 [reported as R(IS) 25/95]. This overall policy has further been underlined by the amendment of regulation 61 after the decision of the Court of Appeal in Clarke and Faul so as to remove the words "throughout any period of term or vacation within it" from the definition of student. That amendment had not been made until after the time which is relevant to the present case.

The feature of the regulations which gives rise to the problems in the present case is that the status of student depends upon the categorisation of the course on which the student is enrolled. The definition of course of study requires that the course shall be a "full-time" course of study. It thus presupposes that it is possible at the outset to categorise the course as being either full-time or part-time and applies that categorisation to the whole of the period of study from the start of the course through to the last day of the course. This assumption does not accord with the practice of universities and other institutions of advanced education as the present case illustrates. A course can be one which has a fixed and determined character as a full-time course for the whole of its duration. But on the other hand courses are offered which include a large element of flexibility. They may provide for part of the course to be full-time and part part-time, they may give the student a choice which he may exercise from time to time during the course as to whether in any given period, be it a term or a year, he decides to study full-time or part-time, further the institution may have similar options to require a student to change from full-time to part-time study as, for example, if he fails to meet the requirements of the full-time course. Any change from full-time to part-time, or part-time to full-time may, within such schemes, be followed by a further change back to the previous status. The regulations do not on their face take account of such flexibility and it is this failure which gives rise to the problems addressed in the present case. It can be commented that it appears that similar problems do not arise in relation to the entitlement to grants since the scheme there does, we are told, recognise that the entitlement may change from time to time. Similarly, the requirement that a claimant for income support be available for work also has the consequence that the student, if studying more than part-time, will not in fact be available for work to the extent required by the regulations. However, be that as it may, no doubt for reasons relating particularly to the position of students during vacations, the Income Support Regulations are drafted by reference to the status of the relevant person at any given time and on the basis that the status of student once acquired shall continue until terminated in one of the ways provided for in the regulations.

The primary facts of this case are not in dispute and are succinctly stated in the reasons of the Commissioner and the social security appeal tribunal from which it is convenient to quote:

"On 23 September 1992 the claimant began what is referred to as a 'modular course' at Oxford Brookes University. His field of study was environmental biology. Within the permitted limits of that University's regulations governing modular courses, the claimant was able to select the modules or topics to be studied and, again within certain limits, could spread them over the period of his choice. The records of the University show his 'award aim' as BSc Hons. Modular. That aim, as I understand it would take at least three years to achieve. A student could however settle for the lesser qualifications of certificate in higher education or diploma in higher education if he terminated his studies before successfully completing all the modules necessary for the award of degree.

Attendance at the University is either full-time or part-time depending on the number of modules being taken by the student during any particular term. Regulation 15 of the University regulations governs the classification of students as full or part-time for fee assessment purposes. The current prospectus states, in relation to full-time students, that they spend their entire course except vacations on campus and that full-time first degree courses normally last three years. In relation to part-time study it states that, while patterns vary, the most common consists of one day and an evening a week during term time. The prospectus also describes mixed mode courses where students attend the course on a full-time and part-time basis at different stages of the course. Students are not eligible for the full local authority grant or student loan unless they are full-time and if there is a change from full-time to part-time I understand the University will notify the grant awarding and loan making authorities.

He was accepted to study a BSc(Hons) Environmental Biology with Statistics Course. He said that he had been sent a Handbook concerning the various modules and he expected that he was given a choice. He told the Tribunal that there were set modules and he was able to take two each term. He would also do extra modules. There were two stages. In his first year he had to obtain nine and then a further nine in each of the last two years. He had failed two compulsories and one other module in stage 1. He had re-sat in his third term but did not pass. At the end of the third term the University had told him that he could only start as a part-time student in his second year. He had to take two compulsory modules and one other in his second year. He attended lectures. So far as Biology was concerned, he attended three hours of lectures and undertook two hours of practical work a week. His parents dealt with his re-application for a grant but he understood that he was not eligible. He said that he was classed as a part-time student because of the number of modules which he was doing and he registered as part-time. He said that one had to pass the modules which he was doing before one could move on. The further eighteen modules to which he had previously referred was the minimum to get a degree and one had to do extra ones to get honours. He said that he had a choice in his third year again to register as part-time. This would still entitle him to get an Honours Degree. He was not sure as to whether there was a time limit imposed on how long it should take. He was still registered as part-time but he was not attending any lectures. He had completed all his work in the first two terms.

During the three terms of the 1992 to 1993 academic year the claimant was classified by the University as a full-time student. During the first two terms of the academic year 1993 to 1994 he was classified as part-time. He did not attend at all in the third term of that year because none of his chosen modules was taught that term. He was part-time for the first term of the 1994 to 1995 academic year and full-time for terms two and three."

These findings reflect what appears in the documents published by the University. The prospectus emphasises the flexibility in the available patterns of study identifying full-time, sandwich, part-time and mixed mode. Mixed mode is described in the following terms "You attend the course on a full-time and part-time basis at different stages of the course." The University regulations distinguish between the classification of a student as full-time or part-time for the purpose of assessing the tuition fee payable by the student as depending upon whether or not in any given year or period of three consecutive terms the student was taking more that six modules. If it was six modules or less he was categorised as part-time. If it was more than six modules he was categorised as full-time.

As previously stated in his first year Mr. Webber enrolled for a course entitled "Modular Degree DipHE and Cert (FT)" [FT stands for full-time]. He said that he would be attending full-time. In his enrolment for the second year the title of the course was unchanged but his attendance was put in as part-time. This was also reflected by a letter written by the University on 10 December 1993 certifying that Mr. Webber had for the first term of the academic year 1993-94 been registered as a part-time student.

Commenting upon the prospectus, the Commissioner said (in para. 8 of his reasons):

"I am not sure that in the end it would necessarily make a difference but I have come to the conclusion not least because of the way the prospectus is written that the course is the whole course leading to the qualification. The prospectus in relation to full-time first degree courses says that they 'normally last three years'. In relation to 'mixed mode', which seems to describe this claimant's course, the prospectus says that 'students attend the course on a full-time and part-time basis at different stages of the course'. In my view that shows at least the University regarded the course as the whole of the studies leading to the qualifications and I see no reason to take a different view."

In argument before us Mr. Rabinder Singh who appeared on behalf of the Secretary of State did not accept the Commissioner's categorisation of the course upon which Mr. Webber was enrolled as "mixed mode", a point to which I will return.

It is clear from the facts found that the original intention and expectation was that Mr. Webber would complete the course and obtain his degree within three years, attending (as would be necessary for that time scale) full-time for those three years. However, the University Regulations left it open to Mr. Webber to change his objective or to take longer over completing the course and in doing so to attend only part-time. Similarly, as the facts of this case demonstrated, the University had the right to require Mr. Webber to cease to attend full-time and attend only part-time if at any stage he should fail to meet the requirements of the full-time course.

Mr. Webber made his application for income support in October 1993. It was refused by the adjudication officer (after a review) in December of that year. Mr. Webber appealed to the appeal tribunal which in June 1994 allowed his appeal. It did so substantially upon the basis that the University must be taken to have dismissed Mr. Webber from the full-time course so, within the terms of the definition in regulation 61, terminating his status as a student. The adjudication officer appealed to the Commissioner. The Commissioner did not accept the approach of the appeal tribunal. He took into account the recent decision of the Court of Appeal in Clarke and Faul about continuing:

"in the same way and consistently with the presumed intention of the provisions, a course which is at the material time a part-time course cannot, as it seems to me, fairly be described as a full-time course.

In this case it seems to me clear that the claimant was in the first two terms of 1993 to 1994 academic year attending what had then become a part-time course and he was accordingly not then a student within the definition. In the third term of that year he was not attending the course at all; at all events he was not then attending a full-time course."

Accordingly, though for a different reason, he upheld the decision of the appeal tribunal.

Although the definition of student has had to be considered and applied in a considerable number of cases before the appeal tribunal and Commissioners, the definition has only twice previously had to be considered by the Court of Appeal. The first case was Clarke and Faul to which I have already referred. In that case the students were attending a three year degree course at the University of East Anglia. Under the regulations of that University the University could give permission to a student to "intercalate" which as Hoffmann LJ explained is a Latinate word meaning to insert an extra period into the calendar. The effect of such permission was that the student was required to leave the University and stay off the campus. The regulation told the student:

"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 'student in attendance at the University' is in abeyance. Your privileged access to University facilities is in abeyance ..."

The argument of the Secretary of State was that intercalation did not involve the abandonment of the course or the dismissal of the student from it nor had the last day of the course arrived: therefore under regulation 61 the claimants still had the status of students despite the permission to intercalate. Hoffmann LJ based his decision in favour of the claimants on the inclusion of the words "throughout any period of term or vacation within it" in the definition of student:

"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 Miss Clarke and Miss Faul obtained. Such a period cannot be fairly described as a period of either term or vacation within the course." (p. 264)

Hirst LJ disagreed with this but Glidewell LJ agreed with Hoffmann LJ. He emphasised the same words as Hoffmann LJ:

"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." (p. 266)

All three members of the Court agreed that the intercalation could not be described as an abandonment of the course. It did not have the element of finality that an abandonment would involve.

The second case was Driver v. CAO (6 December 1996) [now reported as R(IS) 6/97]. This case also gave rise to a difference of opinion. Miss Driver was a student on a sandwich course at the Polytechnic of North London. The course was a sandwich course lasting for three and a half years and consisting of seven six month semesters. She was required to devote her fifth semester to gaining work experience and in September 1991 she began an industrial placement with a firm of architects. After she had been there for no more than a month the firm ended her placement because of the recession and their resulting financial difficulties. She was left with no source of income because she was not being paid by the firm and not in receipt of a student grant for the sandwich period of her course. She applied for income support but was refused. Her argument in the Court of Appeal was based upon the decision in Clarke and Faul. The majority of the Court of Appeal, McCowan and Peter Gibson LJJ held that her situation could not be equated to one of intercalation. She had obtained some professional experience as intended before the cesser of her employment. The fact that she was unable to obtain another placement did not affect the completion of her sandwich course. It was immaterial that the Polytechnic did not give her any tuition during the remainder of her fifth semester as it had never been intended that she should receive such tuition that semester. The remainder of the fifth semester was not an intercalated period. Peter Gibson LJ said:

"In the case of Miss Driver I do not see why the fifth semester, which was always intended to be a period of experience not of full-time study, cannot fairly be described as a period of term within the course of seven semesters." (transcript p. 11)

The third member of the Court, Waller LJ, dissented, considering that the decision in Clarke and Faul could be extended to apply to cover Miss Driver's case.

The present case raises a difficulty which was not discussed, nor did it need to be discussed, in either of the previous cases. The argument of Mr. Drabble QC who appeared on behalf of Mr. Webber was that the Commissioner was right in his approach. Where the course had a variable character it was necessary to determine the character of the course, whether it was full-time or part-time, at each relevant stage. In the terms of the definition, Mr. Webber was not during the academic year 1993-94 "attending a full-time course"; he was attending a part-time course. On the other hand Mr. Rabinder Singh submitted that the definition requires that the course be categorised at its outset when the student enrols for it and that, once the status of student has been acquired, it is deemed to continue through to the last day of the course unless at some earlier date the student has either abandoned the course or been dismissed from it. He stresses that sub-paragraph (a) of the definition is a deeming provision which governs the period during which the student shall be treated as attending the course whether he is in fact doing so or not.

In my judgment, the argument of Mr. Rabinder Singh encounters serious difficulties when applied to a course which leaves open the degree of flexibility which is permitted by the University for this course. The course does not have a fixed and determined character at its outset. It has an uncertain length and composition. A student can start as a part-time student, convert to a full-time student and, maybe, convert back to part-time. Mr. Rabinder Singh would have to accept that at its outset such a course could not be categorised as full-time because, at its outset, it was part-time and whether it ever became full-time, and if so for how long, would depend upon a decision by the student as to how he wished to complete the course, how many modules he wished to take at any one time, what attendance he wished to make.

In the present case Mr. Rabinder Singh has to base his argument upon the fact that during the first year Mr. Webber chose to attempt to do the number of modules appropriate to a full-time course and attended full-time for that purpose. He argues that the choice he made for the first year, although not binding on either the University or Mr. Webber nor determinative of what would be the position in subsequent years, was determinative of the categorisation of the course and of Mr. Webber's status as a student however long the course might last and whether or not he was attending as a part-time or full-time student. Mr. Rabinder Singh's argument rightly stressed the distinction between the categorisation of the course and any choices that might thereafter be made by the student as to his attendance upon it: the former was relevant to the definition and the latter was not. Mr. Rabinder Singh also stressed that, before it could be said that there had been an abandonment of or dismissal from a course there must be an element of finality and that the type of regime within which Mr. Webber was operating clearly did not have that finality. Provided that he could pass the relevant modules Mr. Webber was at liberty to resume full-time attendance and indeed it appears that he did so for the last term of the third year. Mr. Drabble accepted that he could not in the present case rely upon the words "abandons" and "dismissed".

I consider that the arguments of Mr. Rabinder Singh drive one to the conclusion that a course which does not require full-time attendance cannot be described as a full-time course. The regulations include no definition of what is to be treated as a full-time course. The Commissioner was in my judgment justified in describing the course which Mr. Webber was following as a "mixed mode" course. It may be that at some institutions there are very few courses which can properly be categorised as full-time courses as opposed to courses which include an option of full-time attendance. If this situation is one which creates difficulties for those responsible for administering the system of income support and deciding how the available financial resources should be applied, that is a matter for those responsible for the revision of these regulations. If the relevant course was not a full-time course then the student is not at any time "attending a full-time course of study" and the problem posed by the deeming provision does not arise. The relevant person never was a student coming within the definition in regulation 61. Indeed, the difficulty of sensibly applying the deeming provision to a mixed mode course supports the conclusion that the premise upon which the Secretary of State's case is based is mistaken.

But, in any event, the present case has to be decided under the regulation including the phrase "throughout any period of term or vacation within it". Following the approach in the Court of Appeal in Clarke and Faul, there are difficulties in saying that the relevant period fell within "any period of term or vacation within" the full-time course. They were periods of terms and vacation within what was at the material time a part-time course. If matters have to be considered in strict categories, the position at the material time was that Mr. Webber was not on a full-time course but (on the hypothesis that he had been on a full time course) had transferred to a part-time course.

I recognise however that any such analysis could be said both to fail to give effect to what is, after all, an arbitrary deeming provision and to involve an element of artificiality since from the point of view of the University and Mr. Webber he was still pursuing the same course albeit part-time not full-time. In my judgment the answer to be preferred is to accept the overall approach of Mr. Rabinder Singh to the construction of the definition in regulation 61 but to recognise that a course which does not require full-time attendance cannot properly be described as a full-time course.

Therefore independently of the decision of this Court in Clarke and Faul and the inclusion at the material time of the phrase throughout any period of term or vacation within it in the deeming provision, I prefer the view that the course upon which Mr. Webber was enrolled was not a full-time course and that he never was a student within the definition in regulation 61. In my judgment the appeal of the Secretary of State should be dismissed and the decision of the Commissioner upheld.

PETER GIBSON LJ: For the third time in as many years this court is required to consider the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987. The lack of unanimity in this court in the two earlier cases (Chief Adjudication Officer v. Clarke and Faul [1995] ELR 259 [R(IS) 25/95] and Driver v. Chief Adjudication Officer, unreported, 6 December 1996 [R(IS) 6/97]) and the frequency with which points have arisen on that definition are an indication of the difficulties to which that definition gives rise. Indeed I cannot help but wonder whether the draftsman of the regulations had properly in mind the wide variety of advanced education courses available to students today and the range of differing circumstances in which students who have embarked on such courses may subsequently find themselves.

Hobhouse LJ has set out the facts and the relevant legislative provisions and I need not repeat them. The essential case of Mr. Singh for the Secretary of State is very simple: once a student starts on a full-time course the only events on the occurrence of which the regulation contemplates that the student will cease to be a student are (1) the arrival of the last day of the course, (2) the abandonment by the student of the course and (3) the dismissal of the student from the course. Moreover he points to the fact that para. (a) in the definition of "student" is a deeming provision which requires what is not the reality to be treated as the reality. In the present case, he submits, the Commissioner rightly found that the Respondent had started such a course, being the whole course leading to the qualification which the Respondent was seeking, and was right to say that the appeal tribunal erred in its conclusion of the dismissal of the Respondent from the course. But he submits that as none of the three events had occurred, the Commissioner was wrong to say that the Respondent had at the material time become a student on a part-time course and so was not a student within the meaning of the regulation.

Mr. Singh's submission, to my mind, leaves out of account the inclusion in para. (a) of the words "throughout any period of term or vacation within it" and the decision of this court in Clarke and Faul which was based on those words. As I pointed out in Driver:

"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 ... 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."

Mr. Singh argued that Clarke and Faul was distinguishable because unlike the academic annus non of Ms. Clarke and Ms. Faul during which they were expected to stay off the university campus, the Respondent's second year was unquestionably treated as an academic year by the university which required him to continue with his studies, albeit on a part-time basis, with a view to returning to the full-time course the following year. I am not persuaded by this distinction. The additional requirement recognised in Clarke and Faul was that the period in question must be a "period of term or vacation within it", that is to say, within the full-time course. Plainly for the Respondent's second year there was no period of term or vacation within any full-time course. Mr. Singh also sought to derive help from Driver, in which this court held that a person who had started a full-time course was to be treated as a student in a period in which she was intended to be having a period of professional experience but her placement had prematurely come to an end. He suggested that the present case in which the Respondent was studying part-time was stronger than Driver. But Driver turned on its own particular facts, the majority of this court holding that the period in question did not cease to be a period of term within a full-time course. That cannot be said here.

For these reasons which are in substance those advanced by Mr. Drabble QC, for Mr. Webber, in his first argument I would hold that this appeal falls to be dismissed.

Mr. Drabble, conscious of the limited effect that a victory on that ground would achieve by reason of the subsequent amendment of regulation 61, advanced a wider argument for the dismissal of the appeal. This argument was dependent on construing regulation 61 in such a way that the deeming provision of para. (a) is not allowed to cause what is in reality a period of a part-time course to be treated as a period within a full-time course. In view of the conclusion which I have reached on the first argument, I prefer to say nothing on this or on the other points taken by my Lords in their judgments.

EVANS LJ: I agree that this appeal should be dismissed, for the reasons given by Peter Gibson LJ.

We were referred after the hearing to two decisions by Commissioners under the revised wording of regulation 61, that is to say, where the words "throughout any period of term or vacation within it" no longer appear. They were deleted, it seems, in order to reverse the effect of the majority decision of this Court in CAO v. Clarke and Faul [1995] ELR 259 [R(IS) 25/95]. If that was the reason, then the object of the amendment was to deprive persons who are available for work but in fact unemployed, during their year of absence from a full-time university course, of their statutory right to claim income support, on the ground that they are deemed to be full-time students when in fact they are not.

In one of these decisions, Mr. Commissioner Rowland said that he sympathised with the claimant:

"Like the Court of Appeal in Clarke and Faul, I can see no obvious reason why there should be an anomalous class of people left to destitution without state support of any kind."

This situation arises because the student is not entitled to a student grant or loan in respect of the year in question. He has to repay it, if already paid, when for example he gives up the course due to illness shortly after it has begun (the facts in Mr. Commissioner Rowland's case CIS/14477/1996).

I agree that because these further decisions were made under the revised wording, they are not directly relevant to the present appeal, which is governed by the old. We have not heard further argument by reference to them.

Whilst like Peter Gibson LJ I do not express a concluded view on Hobhouse LJ's first ground of decision, namely, that the respondent never embarked on a full-time course, nevertheless I would also hold that the respondent is entitled to succeed without relying on the words "throughout any period of term or vacation within it". My reasons shortly are these.

The purpose of the Act and regulations is to define those persons who are eligible for income support. They must be "available for and actively seeking employment" (s. 124). "Students", however, are excluded during "the period of study" (reg. 10(1)). Subsequent regulations show that only full-time students are excluded in this way. It is in this context that reg. 61(a) provides that "a person who has started on such a course shall be treated as attending it" throughout its length. This deeming provision is relied upon to establish that the person is a full-time student for the purposes of the Act, even when he is not a student at all.

In my view, it is one thing to treat a person as a full-time student at times when, although such a student, he is not in fact attending the course, but quite another thing to rely upon the deeming provision to create a status as student which does not exist in fact. In Clarke and Faul during the academic year in question the claimants were not members of the university. So far as they and the university were concerned, their year of "intercalation" was "annus non". In plain English, they were given leave of absence from their course, and for that period they ceased to be students on that or any other course.

In the present case, the claimant remained a student, but in fact a part-time student whom the regulations do not exclude from entitlement to income support. By parity of reasoning, I would hold that the deeming provision in reg. 61(A) cannot be relied upon to create a status of full-time student which does not exist in fact. Ultimately, this is a question of statutory interpretation. It is not necessary to say that there is a general principle that a deeming provision could never have such an effect. It is sufficient that in the present case the statute is sought to be interpreted in this way in order to create, for no apparent reason, "an anomalous class of people left to destitution without state support of any kind". I should require express words of the utmost clarity to persuade me that Parliament intended to produce that disgraceful result.

Order: Appeal dismissed with costs; application for leave to appeal to the House of Lords refused.