"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; that any period of attendance by the student at his educational establishment in connection with the course 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 described 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."
"Student" is given the meaning described in regulation 61. Before 1 August 1995, regulation 61 included the following definition:-
"'Student' means .... a person aged nineteen 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 termal vacation within it, until the last day of the course or such earlier date as he abandons it or is dismissed from it;".
The words I have underlined were deleted with effect from 1 August 1995 by regulation 2 of the Social Security Benefits (Miscellaneous Amendments) Regulations 1995. Regulation 61 includes one further definition of relevance to the present case:-
"'Last day of the course' means the date on which the last day of the final academic term falls in respect of the course in which the student is enrolled."
It is common ground that the claimant in the present case was not entitled to benefit if he was a "student" and that it is the amended form of the definition that must be considered. The issue is whether or not he was a "student" within that amended definition when he claimed benefit on 3 October 1995.
"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 'abandoned'. Examples are given of the use of abandoned 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 abandoned 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 students 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."
Hirst LJ and Glidewell LJ agreed with that approach. However, Hoffman LJ and Glidewell LJ held that the periods of absence could not fairly be described as periods of either term or vacation within the courses. The Chief Adjudication Officer's appeal was therefore dismissed, with Hirst LJ descending. The amendment wrought by the 1995 regulations was clearly designed to reverse the effect of Clarke and Faul.
"Tribunal have accepted the submission that the claimant was at the date of the claim, on a part-time course of study.
Tribunal noted the statement of Dr Wilson (Senior Tutor) on 8 November 1995 to the effect that the claimant is repeating his second year without attendance.
It appears that the claimant failed only part of his second year examinations or otherwise would have been required to attend and re-do the whole of the course work involved. It appears this is not required of the claimant.
However Dr Wilson's statement is not entirely consistent with the claimant's statement of appeal which was written by a Mrs Wilson (Welfare Advisor) on 6 December 1995. She takes the view that the claimant is not in reality attending a part-time course and that his only commitment to the university is to return in June to take his exams.
If that view is taken, the claimant has in effect been dismissed from his course. He is suspended. He is not registered as a student and has no right to attend lectures. He has no right of return unless and until he satisfies the conditions which have been imposed.
Dismissal by the university, such as for failure of examinations, is quite different from abandonment of the course by the student himself. Both of these circumstances are referred to in the definition which governs the claimant's status for income support purposes.
However tribunal are inclined to accept that the senior tutor is more likely to know the position although his statement is lacking in detail as to what is required of the claimant. This would appear to be somewhat less than as required on a full-time course at date of claim."
"... the present case has to be decided under the regulations including the phrase 'throughout any period of termal 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. There 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, it is position of 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 [Counsel for the Chief Adjudication Officer] 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 that the material time of the phrase throughout any period of termal vacation within it in the dealing provision, I prefer the view that the course upon which Mr Roper was enrolled was not a full-time course and that he never was a student within the definition in regulation 61."
Peter Gibson LJ preferred not to express a view on the point taken by Hobhouse LJ but held that the case could not be distinguished from Clarke and Faul. He said:-
"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 respondents 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 termal vacation within it', that is to say, within the full-time course. Plainly for the respondents second year there was no period of termal vacation within any full-time course."
Evans LJ agreed with Peter Gibson LJ but added that the claimant was entitled to succeed without relying on the words "throughout any period of term or vacation within it". He said (transcript 15D to G):-
"In my view, it is one thing to treat a person as a full-time student at times when, although such a student, is not in fact attending the course, but quite another thing to rely upon the dealing 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, there 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 did not exclude from entitlement to income support. By parity of reason, I would hold that the dealing provision in regulation 61(a) cannot be relied upon to create a status of full-time student which does not exist in fact."
"These cases would have caused me considerable difficulty were it not for the fact that by reason of the provisions of the Finance Act, 1953, s.24, they are longer good law. They do not add much to the general statements in the earlier authorities but they do apply those statements to facts which, though indistinguishable, are not very far removed from the facts of the present case. The fact that the decisions are no longer valid in my view diminishes the authority of the rationes decidendi, but if I had been sitting in a lower court I would have hesitated before reaching the decision which I think I ought now to take."
Lord Radcliffe, with whom Viscount Simonds agreed, said:-
"In essence the decisions adopted the view that he could, as it were, take the debt over to the income instead of bringing the income to the debt. Whether that is the right way to treat the facts when the creditor is a bank with London and overseas branches is not now of any importance, since the legislator has intervened after the Gordon case to reverse the consequences of that decision and to bring such operations within rule 2 of case V for the future. It would be a mistake in those circumstances to build any principles upon the basis of those two decisions."
Lord Kohen, who had been a party to Gordon, said that the actual decision in that case was no longer of importance since the amendment and added:-
"If there is anything in my dictum in Gordon's case which conflicts with the above summary of the position in the present case, I can only express the hope that the dictum we will receive from your Lordships is sudden a death as you have given to the decision in Gordon's case by section 24 of the Finance Act 1953."
Lord Denning said bluntly:-
"The decisions in those cases have been reversed by Parliament in section 24 of the Finance Act, 1953, and they can no longer be regarded as a binding authority; nor can the reasons on which they are based."
In the present case, the legislation has only been partially amended so that the words "abandons" remains but in a rather different context. As statutory provisions must be construed as a whole and as the effect of various possible constructions may determine which is correct in a case where a word may have different meanings, it is at least arguable that the amendment means that the construction of the word "abandons" held to be correct in Clarke and Faul is no longer correct and that the approach taken by Evans LJ in Webber is to be preferred. It might be argued that the amendment was based on an assumption that the word "abandons" would always be construed in the ways that the Court of Appeal construed it in Clarke and Faul, but the "doctoring of Parliamentary endorsement of decided cases" did not receive support from the majority of the House of Lords in Farrell v Alexander  AC59.