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[1999] UKSSCSC CIS_12823_1996 (15 September 1999)

R(IS) 1/00

Mr. J. Mesher CIS/12823/1996
15.9.99

Student – whether course a "full-time" course

In September 1993 the claimant commenced a course of study leading to a BTEC National Diploma. She completed the course at the end of June 1995 having attained her nineteenth birthday on 15 January 1995. On 2 February 1995 she claimed income support and requested that it be backdated to 15 January 1995. At the hearing the presenting officer submitted that the issue before the tribunal was whether the claimant had since 15 January 1995 been attending a full-time course of study. There was before the tribunal a letter from the college which stated that the college and the Further Education Funding Council no longer designated programmes as full-time or part-time as students were able to take separate modules to build towards a final qualification and confirmed certain facts about the claimant's actual current attendance. The tribunal decided the case against the claimant.

Held, allowing the appeal, that:

following the decision of the Court of Appeal in O'Connor v Chief Adjudication Officer [1999] Education Law Reports 209, (reported as R(IS) 7/99), the question of whether the course is a full-time course of study is to be decided according to the reasoning of Hobhouse LJ in Chief Adjudication Officer v Webber [1997] 4 All ER 274, (reported as R(IS) 15/98), meaning that a course which from the outset does not require full-time attendance or does not have a fixed and determined character is not a full-time course;

that this is so even if the claimant has actually attended the course full-time throughout (paragraph 17). The evidence before the tribunal raised the possibility that the claimant's course was not full-time. The tribunal did not properly investigate that point in the light of the decision in O'Connor (supra).

The case was referred back to another tribunal with directions as to relevant evidence (paragraph 21).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal is allowed. The decision of the Wigan social security appeal tribunal dated 5 September 1995 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to a differently constituted social security appeal tribunal for determination in accordance with the directions given in paragraphs 19 to 21 below (Social Security Administration Act 1992, section 23(7)(b)).

The general circumstances are set out in the appeal tribunal's findings of fact (I have corrected a few slips in the typing):

"The appellant commenced a course of study leading to a BTEC National Diploma in Performing Arts at Preston College in September 1993. She completed the course at the end of June 1995.

The appellant attained her 19th birthday on 15 January 1995. The timetable for the second year of her course (academic year 1994/95) is set out at document 13. That includes two hours of interpretative drama on a Wednesday afternoon which the appellant maintains was voluntary. In a letter dated 27 February 1995 the Dean of Schools Liaison at Preston College stated that the college and FEFC no longer designate programmes as full-time or part-time as students are able to take separate modules to build towards a final qualification. The letter goes on to confirm that the appellant was at that time currently studying for 19 hours per week at the college. The number of hours shown in her timetable is 20 including the Wednesday afternoon interpretative drama session and 18 without that session. Based on her parents' income the appellant did not qualify for a maintenance grant during the course of her studies at Preston College.

On 2 February 1995 the appellant claimed income support and requested that it be back-dated to 15 January 1995, the day of her 19th birthday. She was then living as a member of her parents' household."

The exact course of the subsequent decision-making is not at all clear. The first decision was apparently to award income support from 3 February 1995 on the basis that the claimant was a part-time student. The papers before me do not show whether an express decision was made then on the back-dated claim (or even when the claim from 15 January 1995 was made) or why the award was only from 3 February 1995 when the income support claim had been treated as made on 2 February 1995. Payment was apparently made for the period from 3 February 1995 to 15 February 1995. The claimant signed another claim form on 28 March 1995, it seems because she injured her ankle, needing a plaster-cast, and was incapable of work from 16 March 1995. She thought that this would interrupt payment of benefit to her. According to the adjudication officer's written submission to the appeal tribunal on form AT2, income support was paid from 16 March 1995 and was still in payment on 19 May 1995. According to the presenting officer at the hearing, she was paid from 3 February 1995 to 17 May 1995, was not paid from 18 May 1995 to 5 June 1995 and had been paid continuously since.

However, there is nothing in the papers to show that there was any adjudication officer's decision reviewing the decision initially awarding benefit. The decision under appeal was that notified in a letter dated 31 March 1995, which contained the following:

"Further to our telephone conversation of 30 March 1995 regarding your claim to backdating of income support to 14 January 1995.

As you know Skelmersdale Unemployment office have disallowed your claim due to unavailability for work from this date, thus we cannot pay you any income support from this period also. I have been advised by our Appeals Officer that you could appeal against this decision."

The decision under appeal was described on the form AT2 as that the claimant was not entitled to income support from 15 January 1995 because she was a student attending a full-time course of study and was not available for employment. There had been an opinion to that effect given by an Employment Services adjudication officer. The presenting officer submitted that the issue for the appeal tribunal was whether the claimant had since 15 January 1995 been attending a full-time course of study.

The appeal tribunal decided that issue against the claimant and continued that she was not therefore entitled to income support from 15 January 1995 to the end of her course. The claimant now appeals against the decision with the leave of the chairman of the appeal tribunal.

I do not think that there is anything in the grounds of appeal initially put forward, that the appeal tribunal did not find whether it regarded the claimant as studying for 18, 19 or 20 hours a week. It is plain that the view that it took was that, whatever the exact number of hours, the course was a full-time one.

Because of the series of other cases going to the Court of Appeal, this appeal has been deferred several times. The most recent written submission from the adjudication officer, dated 21 April 1999, was that the decision of the Court of Appeal in O'Connor v Chief Adjudication Officer (3 March 1999) did not affect his previous view that there was no error of law in the appeal tribunal's decision that the claimant's course was a full-time one. As it seemed to me that the decision in O'Connor might have made an important difference to the meaning of a full-time course, I directed an oral hearing. The claimant attended the hearing and was represented by Mr. Peter Johnson, a welfare rights officer of Lancashire County Council. The adjudication officer was represented by Ms. Vicky Bergmann of the Office of the Solicitor to the Department of Social Security.

In the event, Ms. Bergmann's submission at the oral hearing was that, in the light of O'Connor and of a very recent decision of Mr. Commissioner Sanders in CJSA/836/1998, the appeal tribunal had erred in law by making insufficient findings of fact on the nature of the claimant's course and that the case should be remitted to a new appeal tribunal to make the necessary findings. Mr. Johnson agreed with Ms. Bergmann's approach and with the result that she suggested.

I also agree with Ms. Bergmann's analysis of the legal position, which I can state fairly briefly. It must be remembered that the period in issue in this case falls before the amendment to the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987 on 1 August 1995. The test for a person aged at least 19 was whether she was "attending a full-time course of study at an educational establishment", and the proviso was in force that a person who had "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". There have also been significant amendments from October 1996 introducing specific rules for students on courses funded by the Further Education Funding Council (FEFC).

The undisputed result of the income support legislation in the present case is that if the claimant's course was a "full-time course of study" she would be a student until the end of the course in June 1995 and so be deemed not to be available for employment. While she was temporarily incapable of work from 16 March 1995 she had not abandoned her course and was deemed to be attending the course, as there were still terms and vacations within the course. She had not been given any leave of absence of the kind dealt with in Chief Adjudication Officer v Clarke and Faul. So it is the nature of the course which is crucial. Clarke and Faul also decided that "abandon" meant abandon permanently.

In Chief Adjudication Officer v Webber [1997] 4 All ER 274 the Court of Appeal was concerned with a person who started a modular degree course. Attendance could be full-time or part-time according to the number of modules being taken. Full-time attendance would lead to the award of the degree in three years. He attended full-time in the first year (1992/93), but failed some modules. He could only return in the following year to do the failed modules. He was classified as attending part-time in the academic year 1993/94. He claimed income support in October 1993. The Court of Appeal upheld the Commissioner's decision that the claimant was not a student as defined in regulation 61 of the Income Support Regulations. But different reasons were given by the Lords Justices. In brief, Hobhouse LJ said that the nature of the course had to be characterised at the outset and that a course which could be followed full-time or part-time over an indeterminate period was not a full-time course. Peter Gibson LJ said that during the claimant's second year there was no period of term or vacation within a full-time course, as his attendance was classified as part-time, and the deeming of attendance could not apply. Evans LJ agreed with Peter Gibson LJ, but also said that the deeming provisions should not be applied to create a status as full-time student which does not in fact exist.

In the meantime there had been a number of Commissioners' decisions expressing conflicting views about the position after the amendment of 1 August 1995 in cases of "intercalating" students, who were granted leave of absence from institutions for reasons such as examination failure, illness, accident etc. I granted leave to appeal to the Court of Appeal in two cases in which I had decided that such students were deemed to be attending their courses, because they had not finally abandoned or been dismissed from the courses. Leave was granted because the decision in Webber raised the strange situation that a person who was not studying at an institution at all was to be excluded from entitlement to income support as a student, while a person who was studying part-time was not to be excluded on that ground.

The case which was heard by the Court of Appeal was O'Connor v Chief Adjudication Officer. There, the claimant was, after failing examinations, registered as an external student for a year and was permitted to re-sit the examinations, but not to attend lectures etc or use University facilities. My decision was upheld, by a majority. Auld and Swinton Thomas LJJ, however, expressly approved the approach of Hobhouse LJ in Webber. If that was necessary to the decision in O'Connor, then it authoritatively establishes the legal position at the level of adjudication officers, appeal tribunals and Commissioners.

It was in my judgment necessary for the Court of Appeal in O'Connor to adjudicate on the different approaches in Webber, despite the significant differences in the facts of the cases. That is because of the submissions which were made for Mr. O'Connor and for the Chief Adjudication Officer. Mr. Drabble QC, for Mr. O'Connor, relied first on the individual approach of Evans LJ in Webber. Mr. McManus, for the Chief Adjudication Officer, submitted that that approach was flawed, for reasons including that the nature of the course is characterised at the outset. Mr. Drabble submitted secondly that the result in O'Connor should be the same as that in Webber, because Mr. O'Connor had started on a course which was not in the event full-time, as it turned out to include a year in which he was not required to attend the University at all. Mr. MacManus submitted that where a person started a course which was intended to be full-time throughout, a change to part-time study or a complete break from studying does not change the full-time nature of the course. The majority of the Court of Appeal rejected both of Mr. Drabble's submissions, preferring Mr. MacManus's. In doing so, it was necessary for them not only to hold that the nature of the course is characterised at the start, but also to say what a full-time course means.

That emerges most clearly, I think, at page 15F of the transcript, where Auld LJ dealt with Mr. Drabble's second submission:

"In my view, Mr. MacManus's submission is correct. If Mr. Drabble's construction were right, no course would be full-time in the event of the educational institution running it allowing a student to intercalate a period to re-take examinations or for health or other compassionate reasons; that is, it would defeat the whole purpose of the deeming provision. The scheme of the Regulation is that the status of student is determined by the nature of the course he starts. If it is full-time then he is treated as continuing to attend it until its last day or his earlier abandonment of or dismissal from it. If, at its start, it may be followed full-time or part-time according to the student's preference as the course proceeds, the position is different. Hobhouse LJ explained the reason for the difference in Webber. ... Unlike the course in Webber, the course started by Mr. O'Connor was a full-time three years' course, with no provision for part-time or modular or other flexible arrangements. Although, in the event, the University permitted him to take a year's break from his full-time studies in order to re-take the examinations he had failed, it was not an option of the course when he started it."

Thus the endorsement of Hobhouse LJ's reasoning was necessary to the decision of the majority in O'Connor, which authoritatively establishes that reasoning. That conclusion was also reached by Mr. Commissioner Sanders in CJSA/836/1998, although his primary reason for allowing the claimant's appeal was a different point on the construction of the specific provisions in the Jobseeker's Allowance Regulations 1996.

It may be helpful, for this and other cases, to set out the relevant parts of Hobhouse LJ's judgment in Webber. Counsel for Mr. Webber had argued that where a course had a variable character it was necessary to determine whether it was full-time or part-time at each relevant stage. Mr. Rabinder Singh, counsel for the Chief Adjudication Officer, had submitted that the course had to be characterised at its outset. At page 9D of the transcript ([1997] 4 All ER 281d) Hobhouse LJ said:

"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 characterized 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."

Then at page 10C ([1997] 4 All ER 281j) he continued:

"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 characterized as full-time courses as opposed to courses which include an option of full-time attendance. ... 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."

Hobhouse LJ finally (at page 11B and [1997] 4 All ER 282e) accepted the overall approach of Mr. Rabinder Singh subject to the recognition that a course which does not require full-time attendance cannot properly be described as a full-time course.

That approach must be applied to the circumstances of the present case, although of course the appeal tribunal in September 1995 did not have the benefit of the guidance of the Court of Appeal in either Webber or O'Connor. The evidence in the letter of 27 February 1995 about the nature of the course was enough to raise the possibility that the claimant's course was one which did not require full-time attendance or did not have a fixed and determined character at its outset, and so was not a full-time course of study within the meaning of the definition of "student" in regulation 61 of the Income Support Regulations. In my judgment it follows inevitably from Hobhouse LJ's approach that that result would follow even if claimant's actual attendance throughout had been on a full-time basis. If the course itself was not full-time, because it contained within it the possibility of attendance not on a full-time basis, the claimant would not be caught by the definition of student. Therefore, the appeal tribunal erred in law in not giving consideration to that point of law and making the necessary further investigations into the nature of the claimant's course.

For that reason, the appeal tribunal's decision must be set aside as erroneous in point of law. I am not in a position to substitute a decision on the claimant's appeal against the adjudication officer's decision issued on 31 March 1995. The case must therefore be referred to a differently constituted social security appeal tribunal for determination in accordance with the following directions.

There must be a complete rehearing of the claimant's appeal against the adjudication officer's decision issued on 31 March 1995, unless the appeal lapses by virtue of a review and revision of that decision which gives the claimant all that she would have obtained if every ground of her appeal had been successful (Social Security Administration Act 1992, section 29). Before the rehearing, the adjudication officer should investigate the course of the decision-making following the first claim for income support and clarify the subject-matter of the adjudication officer's decision issued on 31 March 1995. It may be that there was a decision or decisions awarding the claimant entitlement to income support which have not been reviewed and revised. If so, the investigation should also cover the question of whether proper payment has been made on those awards. The result of those investigations should be set out in writing in advance of the rehearing. If the adjudication officer considers that review and revision should take place now, a decision should be given as soon as possible, against which the claimant will have a right of appeal.

It seems likely that there will be in issue on the appeal, if it reaches a rehearing, at least the claimant's entitlement to income support from 15 January 1995 down to some date to be ascertained. Apart from the question of good cause for the delay in claiming, the crucial question is likely to be whether the claimant is deemed not to be available for work (and so not entitled to benefit) by reason of being a student. That issue must be determined in accordance with the legal approach set out above.

The adjudication officer should seek from Preston College as much information as practicable about the structure of the claimant's BTEC National Diploma course, in modules or otherwise, the length of time over which it could be completed, whether a student was committed to any particular structure on initial registration and whether it was possible to change from full-time to part-time attendance, or vice versa, within the same course. There will sometimes be a crucial difference between a course which contains flexibility within itself and a course which does not contain such flexibility, but which allows transfer in certain circumstances to a different course. The sorts of documents which might be relevant would include a prospectus covering the course, College regulations covering the course, any relevant FEFC documents, and other information given to students. All the information obtained should be included in the papers for the rehearing, so that the claimant and her representative have a fair opportunity to consider it and, if necessary, to produce any further evidence on her behalf.

Date: 15 September 1999 (signed) Mr. J. Mesher
Commissioner