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O'Connor v. Chief Adjudication Officer [1999] UKSSCSC CIS_15594_1996 (03 March 1999)

R(IS) 7/99
(O'Connor v. Chief Adjudication Officer and Anor.)

Mr. J. Mesher CIS/15594/1996
16.6.97

CA (Swinton Thomas, Auld and Thorpe LJJ)
3.3.99

Student - whether course a "full-time" course

Following the decision of the Court of Appeal in Chief Adjudication Officer v. Clarke and Faul [1995] ELR 259, regulation 61 of the Income Support (General) Regulations 1987 was amended with effect from 1 August 1995 by the deletion of the words "throughout any period of term or vacation within it". In October 1993 the claimant began a full-time degree course which would normally take three years but in his second year, 1994-5, he failed part of his examinations. He claimed income support in December 1995 at which time, for a full academic year, he was not attending any course of full-time study but was registered as an external student, and it was common ground that he was unemployed and available for and actively seeking work. The social security appeal tribunal decided that the claimant was not a "student" at all by reason of having "abandoned the course as such and become an external student". The adjudication officer appealed and the Commissioner allowed the appeal. The claimant appealed to the Court of Appeal.

Held, dismissing the appeal, Thorpe LJ dissenting, that:

the amendment to regulation 61 was not ultra vires by reason of irrationality in the sense described in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1KB 223 although it was not necessary for the Secretary of State to have misled or deceived Parliament or to have otherwise acted in bad faith. The fact that a general policy might produce hardship in individual cases did not make it or the subsidiary legislation implementing it irrational;

(approving the approach of Hobhouse LJ in Chief Adjudication Officer v. Webber [1997] 4 All ER 274, reported as R(IS) 15/98) whether a course of study is "full-time" for the purposes of the deeming provision in regulation 61 is determined at its start and not according to later changes prompted by events and, unlike the course in Webber, the claimant's course was a full-time three years' course with no provision for part-time or modular or other flexible arrangements;

the claimant could not be said to have abandoned the course of full-time study at the end of the summer term 1995 and he had not been dismissed from that course although it would end later than originally planned.

The analysis in the decision of the Commissioner in this case was preferred to that of the Commissioner in CIS/13986/1996.

Leave to appeal to the House of Lords was refused.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The adjudication officer's appeal is allowed. The decision of the Sheffield social security appeal tribunal dated 5 June 1996 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute my decision on the basis of the facts found by the appeal tribunal and further findings (Social Security Administration Act 1992, section 23(7)(a)(ii). That decision is that the claimant is not entitled to income support from 11 December 1995 until the day before he resumed actual attendance on a full-time course of study in September 1996.

The appeal tribunal was concerned with the claim for income support made on the form received on 20 December 1995, but treated as made on 11 December 1995. The claimant had begun a full-time degree course at the University of Sheffield in 1993. Because he had failed part of his examinations in the 1994/95 academic year, he had not been in attendance at the University from June 1995 and was to re-take his examinations in 1996 as an external candidate. On 25 January, the adjudication officer decided that the claimant was not entitled to income support from 11 December 1995 because he was a student during the period of study and so was not to be treated as available for employment. The claimant appealed, saying that he was not attending any place of study and was actively seeking work.

The appeal tribunal allowed the appeal and decided that income support should be paid to the claimant from 20 December 1995. The appeal tribunal correctly set out the effect of the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987 after the amendment following Chief Adjudication Officer v Clarke and Faul, ie that a person who has started on a full-time course of study is to be treated as attending it until the last day of the course or such earlier date as he abandons it or is dismissed from it. Its reasoning then continued as follows:

"However, the Tribunal did not believe that the claimant is a student. There is a considerable difference between a person who stops in the middle of a course intending to have a few months or terms off and then return to the same course and one who abandoned the course as such and became an external student. An external student is not the same thing as a student who has delayed the work as part of the course, he is not in fact attending the University at all and merely taking the exams. He can take these at any time and not like an ordinary student who has merely an interruption in his course, pays no fees because he receives no tuition, he cannot take books out of the library and is not registered with the University as a student at all. The Tribunal therefore could not see how it could be argued that such a person is attending a full-time course, feeling that the situation was very different from the student referred to in the Clarke and Faul decision.

Mr. Morgan [the claimant's representative] attempted to argue in addition to this, that the regulation which was made to alter the definition in regulation 61 was ultra vires and stating it could not have been the Government's intention to leave a person in the same position as [the claimant] entirely without support. The facts as [the presenting officer] had pointed out was that there was no provision in the hardship provisions for income support for students, it merely exemplified the fact that nobody believed that students could be in hardship because they were in receipt of grants and loans to enable them to survive. Mr. Morgan also pointed out that Lord Justice Hoffmann in the Clarke and Faul decision had indicated that there must be a connection between the existence of grants for students and the provision of income support. The Tribunal did not have to make a decision on whether the regulation was ultra vires as they had already decide that the claimant was not a student."

The adjudication officer now appeals from that decision, with leave granted by the appeal tribunal chairman. There was an oral hearing of the appeal, at the same time as the appeal on Commissioner's file CIS/13276/1996. The adjudication officer was represented by Mr. Rabinder Singh of counsel, instructed by the Office of the Solicitor to the Department of Social Security. The claimant attended and was represented by Mr. Peter Turville of Oxfordshire Welfare Rights. I am grateful to both representatives for particularly well-constructed submissions.

The main issue until shortly before the oral hearing was whether or not the August 1995 amendment to the definition of "student" was ultra vires. I shall deal with that issue before turning to the arguments on the proper construction of the definition.

The 1995 amendment - ultra vires

Immediately prior to August 1995 the definition of "student" in regulation 61 of the Income Support (General) Regulations 1987 was as follows (omitting paragraph (b) on sandwich students):

"a person, other than a person in receipt of a 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;"(my underlining).

That was the form of the definition considered by the Court of Appeal in Clarke and Faul. The effect of regulation 2 of the Social Security Benefits (Miscellaneous Amendments) Regulations 1995 was, from 1 August 1995, to remove the words which I have underlined. It was those words which were crucial to the claimants, success in Clarke and Faul.

Mr. Turville put the ultra vires argument in two ways. Both rested on the assumption that the 1995 amendment, if valid, has the effect contended for by the adjudication officer, ie that students in the position of Ms. Clarke and Ms. Faul or in the position of the claimant in the present case are to be deemed not to be available for employment and so excluded from entitlement. The first was that the amendment was irrational and therefore invalid. The second was that the amendment was invalid for the same reason as the provisions excluding most asylum-seekers from entitlement to income support were found to be invalid by the Court of Appeal in R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996 4 All ER 385, [1997] 1 WLR 275.

On irrationality, Mr. Turville submitted that eligibility for student grants and loans is based on current attendance on a full-time course of study, whereas the income support rule was based on past attendance on a full-time course. He said that the result was irrational and contrary to the policy statement on the introduction of the loan scheme, linking the removal of income support entitlement for full-time students to the availability of loans. Students in the position of the claimant were put into a cruel dilemma in only being able to receive any financial support by abandoning their course permanently (and thereby forfeiting any future entitlement to a student grant). If they did not do so, they might have no resources at all. He argued that no sensible person could have intended to produce that result. Mr. Singh submitted that the test for irrationality was extreme, and not met in the present case. It was not enough that many people would think the result of a legislative provision harsh or unfair or unwise. A court has to be satisfied that the person who made the decision in issue had taken leave of his senses. The highly restricted basis on which a legislative provision can be found invalid on the ground of irrationality was reinforced by the decision in Nottinghamshire County Council v. Secretary of State for the Environment [1986] AC 240.

On this point, I prefer Mr. Singh's submissions to Mr. Turville's. In my view, the House of Lords' decision in the Nottinghamshire case means that the irrationality argument cannot get off the ground. I have considered the conditions in which a Commissioner can find a legislative provision invalid on the ground of irrationality in some detail in decision CIS/14141/1996. My conclusion there was that where a regulation made by the Secretary of State had been subject to Parliamentary scrutiny (as by the negative resolution procedure) it could only be found invalid on the ground of irrationality if it was found that there was bad faith on the part of the Secretary of State or that the Secretary of State had misled or deceived Parliament in some way. I also concluded that nothing in Foster v. Chief Adjudication Officer [1993] AC 754 or in the Tribunal of Commissioners' decision CIS/391/1992 weakened that requirement. In the present case there is no evidence of any such bad faith or of any misleading of Parliament. Therefore, apart from the question of whether the 1995 amendment was so unreasonable that no Secretary of State in his senses could have made it (on which I tend to agree with Mr. Singh), the irrationality challenge must fail.

The second strand of the ultra vires argument was that based on the Joint Council for the Welfare of Immigrants case (which I shall call "the asylum-seekers case"). The principle applied by the majority of the Court of Appeal was succinctly stated by Waite LJ, at [1996] 4 All ER 402:

"Subsidiary legislation must not only be within the vires of the enabling statute, but must also be so drawn as not to conflict with statutory rights already enacted by other primary legislation."

By a majority, the Court of Appeal concluded that the regulations removing the income support rights of most asylum-seekers, in particular those who sought asylum otherwise than on arrival in the United Kingdom or who were appealing against an adverse determination, had the effect of rendering their ostensible statutory rights under the Asylum and Immigration Appeals Act 1993 to a proper consideration of their claims to asylum valueless by making it totally impossible for them to remain in this country to pursue their claims. The regulations were therefore struck down.

The circumstances of that case were extreme. Simon Brown LJ described the position of the deprived asylum-seekers (other than those with dependent children) able to claim priority need under the homelessness legislation as follows, at [1996] 4 All ER 395 - 6:

" (1) They have no access whatever either to funds or to benefits in kind.

(2) They have no accommodation and, being ineligible for housing benefit, no prospect of securing any.

(3) By the express terms of their leave to stay they are invariably forbidden from seeking employment for six months and, even assuming that thereafter they apply for and obtain permission to work, their prospects of obtaining it are likely to be poor, particularly if they speak no English.

(4) They are likely to be without family, friends or contacts and thus in a position of peculiar isolation with no network of community support.

(5) Their claims take on average some 18 months to determine, on occasions as long as four years. An individual has no control over this and no means of hastening a final decision. If eventually the claim succeeds there is no provision for back-payment.

(6) Quite apart from the need to keep body and soul together pending the final determination of a claim, expense is likely to be incurred in pursuing it. Applicants must attend for interviews with the Home Office and with any advisers they may have. They must have an address where they can be contacted with notices of appointments or decisions. To miss an appointment or the time for appeal is to forgo their claim."

Simon Brown LJ referred to the fuller rights than previously enjoyed conferred on asylum-seekers by the 1993 Act. He then continued, at [1996] 4 All ER 401-2:

"And yet these regulations [the amending income support regulations] for some genuine asylum seekers at least, must now be regarded as rendering these rights nugatory. Either that, or the 1996 regulations necessarily contemplate for some a life so destitute that, to my mind, no civilised nation can tolerate it. … I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status. … I, for my part, regard the 1996 regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires. I would found my decision … on the wider ground that rights necessarily implicit in the 1993 Act are now inevitably being overborne. Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destruction. Primary legislation alone could in my judgement achieve that sorry state of affairs."

Mr. Turville accepted that intercalating students could not be said to be in the same position as asylum-seekers, but submitted that students could be put into a position of financial destitution, with no source of income at all from student grants or loans or from income support if they were incapable of work (as through illness) or unable to find work. The proper question was whether the removal of financial support from the class of students hit by the 1995 amendment was so severe or disproportionate as to conflict with their statutory rights to education or to grants. I think that the furthest he went in identifying a statutory right which could be interfered with was through the argument that a student forced by financial destitution to abandon a course permanently (in order to qualify for income support) would then lose the right to a mandatory grant, even for the period unused from the first course, if a new course was later started. Without going into any detail, I accept that such an effect follows from the conditions laid down in regulation 14 of the Education (Mandatory Awards) Regulations 1994, made in implementation of the Education Act 1962. Mr. Turville had also put his case on the basis of an interference with students' rights to education as such, but I do not think that such an argument can work, because there are no statutory rights to receive education beyond the age of compulsory attendance.

I agree with Mr. Singh that the crux of the asylum-seekers' case was not just an interference with statutory rights, but an effect rendering those rights valueless in practice. Mr. Turville had relied on Neill LJ's formulation in terms of the interference with statutory rights being disproportionate to the objects to be achieved by the secondary legislation (thus being able to bring in what he said was an absence of clear objective in the 1995 amendment on students) But Neill LJ was in the minority. I am satisfied that the majority of the court of Appeal were prepared to strike down secondary legislation only under stricter conditions. Mr. Singh submitted that, without devaluing the adverse effects on intercalating students, the position in which they were put was simply not in the same league as that of asylum-seekers. The choice forced on asylum-seekers was a stark and desperate one. So far as intercalating students were concerned, although they had no funds in the form of grants, student loans or income support, they might well have accommodation and family or friends to rely on. The test must look at the generality of students affected, rather than individual examples of extreme hardship. There was no legal bar on their obtaining remunerative work. I agree with that general submission. The situation into which intercalating students are put is not serious enough to render their rights to mandatory grants valueless, and the conditions for the application of the principle in the asylum-seekers' case are not met.

I maintain that conclusion even taking account of the position of those who are incapable of remunerative work because of illness or disability. "Disabled students" (amongst others) are not deemed to be unavailable for employment under regulation 10(1)(h) of the Income Support Regulations. Students who are entitled to the disability premium or the severe disability premium or who are deaf come under this rule, as do those who have been incapable of work for a continuous period of at least 196 days (see paragraphs 7 to 7B of Schedule 1 to the Income Support Regulations) . A student who does not qualify for a premium who is incapable of work will obviously be in a particularly difficult financial situation unless and until the 196 days are achieved. However, I consider that the difficulties are not sufficiently extreme to alter the conclusion which I have reached in the previous paragraph.

Accordingly, I reject the submission that the 1995 amendment was ultra vires. The appeal tribunals decision is not to be supported on that basis.

The meaning of the definition of student

The primary submission on behalf of the adjudication officer was relatively simple: that the appeal tribunal erred in law either by taking into account the irrelevant fact that the claimant was not in fact attending a course, when the definition of student in regulation 61 extends to those who are deemed to be attending, or in misconstruing the meaning of "abandon". Mr. Singh referred to what was said in Clarke and Faul about that meaning. At page 6 of the transcript, Hoffmann LJ said that "abandon" had a final meaning in regulation 61:

"The context places the word in conjunction with two other events which are undoubtedly final, namely the end of the course and the student's dismissal from it. Furthermore, nothing short of total abandonment can make the definition work. If the commencement of an intercalated year means that the definition no longer applies, what happens when the student returns a year later? The definition cannot apply to the remainder of the course, because it contemplates that the period which ends with the last day of the course will have begun with the student starting on the course, not with his resuming it after a break."

Hirst LJ agreed that abandonment should in its context be constructed as connoting permanent abandonment and Glidewell LJ agreed the is should be constructed as meaning "give up the course finally". Mr. Singh submitted that the result of the 1995 amendment was to leave the definition using stark language, under which if a person started on a full-time course of study the deeming of attendance topped only in three clearly defined cases: the ending of the course, the final abandonment of the course or a final dismissal from it. The claimant had not been finally dismissed from his course, he had not finally abandoned it and it had not ended, so that the appeal tribunal must have erred in law in concluding that he was not a student.

Shortly before the date of the oral hearing, Mr. Commissioner Howell issued decision CIS/13986/1996, which put forward a different line of reasoning. The circumstances appear from the Commissioner's reasoning in paragraphs 9 and 10 of the decision:

"9. The last day of this claimants course, if all had gone according to plan, would have been the end of the summer term of 1996 when he completed the final year exams. However, in September 1995 it became certain that he would not complete the course, or any course, in this way after he failed to get the prerequisites for the final year at either in the second year exams or an initial re-sit in September. It was not until after June 1996, when he re-sat and passed the second year exams, that he was told he could come back to the university as a student admitted to the final year degree course; and then the last day of his course became the end of the summer term 1997. But in October 1995, when he claimed income support, there was no "last day" of any course that he was on. He was not permitted by the university to be there as a student on any course at all. His grant had been stopped, on the correct ground that he was not then a student in further or higher education. He only became one again, and only got a grant for his maintenance again, when readmitted as a student engaged on a course from the following autumn.

In my judgement the majority of the tribunal were correct in holding on these facts that the exclusion of income support under reg 10(1)(h) did not apply to the claimant because he had been dismissed from the course for which he was originally enrolled. As they put it at page 51:

"The majority concluded that the appellant was to be treated as having been dismissed from the course due to having failed the re-sit. If by his own endeavours without tutorial or lecture attendances he succeeded in passing the re-sit examination [sc in June the following year] the majority concluded that the appellant would be considered to be starting an engineering course with a different student intake."

In other words he had not been permitted to continue with his original course, and so had in effect been dismissed from it. If permitted to restart his studies the following year he would then be a member of a different [my underlining] course from the one he started on, even though the course content might be similar and the degree aimed at the same."

The Commissioner then referred to the Court of Appeal's decision in Clarke and Faul. He said that in relation to the intercalated years dealt with in those cases it would always remain possible to identify the last day of the course for which the student was currently enrolled and unconditionally entitled to attend. Where, as in CIS/13986/1996, that was not so, it was much more important to identify "the course" which a person is to be deemed artificially to be attending. The Commissioner asked (in para. 13) whether it is:

"just the general programme of lectures, tuition and so forth offered by a university or college to lead to a particular qualification, or the actual Programme of attendance and study to be followed by the individual person being considered as a "student". The first has no necessary temporal connotations, while the second does. In my view the "course" that has to be identified for the definition of a student in reg 61 must be the individual student's course in the second of these senses, because of the obvious temporal connotations of the references to the period of study, the start of the course, and the last day of the course, which are meaningful only in relation to an individual person's programme as a student. This is also I think the more consistent with the approach of the Court of Appeal in Clarke and Faul, and with the separate definition of "period of study" in reg 61 for the purposes of chanter VIII of the regulations, which also has to work with the same definition of "student"."

The claimant's dismissal from the continuous course of full-time study for three academic years for which he originally enrolled was undoubtedly final, as there was only a possibility of his returning to a different course. The Commissioner finally noted that, as either construction of "the course" was arguable, his result accorded better with any likely intention of Parliament in approving the regulations.

Mr. Turville submitted that in the present case the claimant's position was essentially the same as that of the claimant in CIS/13986/1996. Having been prevented from proceeding to the next stage of his programme of study by examination failure, he was not on any course by reference to which a last day could be identified. Mr. Turville invited me to reach the same result as Commissioner Howell, as an alternative to his ultra vires argument. He put considerable emphasis on that result retaining the consistence between the conditions of eligibility for student grants and loans and the conditions of entitlement to income support which had been produced by Clarke and Faul, and which had been recognised as of importance by Mr. Commissioner Sander in CIS/576/1994 (currently before the Court of Appeal as Webber) and by Mr. Commissioner Howell. Mr. Turville referred to the White Paper on Student Loans as disclosing no positive policy intention to exclude intercalating students and those in the position of the claimant from eligibility for income support as part of the general policy of excluding students as a class from eligibility.

Mr. Singh submitted that the result of decision CIS/13986/1996 is inconsistent with the ratio of Clarke and Faul, or at least with powerfully persuasive statements of the court of Appeal, and that the construction of the words "the course" adopted by Commissioner Howell was not open to him in the context of the structure of the legislation. He submitted that the new form of the legislation was clear and unambiguous, so that reference to the probable purpose of the legislation was inappropriate. The fact that many people might think the result of the legislation to be extremely harsh did not make it ambiguous. However, if the probable purpose of the 1995 amendment was to be considered, Mr. Singh pointed to the words which the Court of Appeal in Clarke and Faul had found were ambiguous, so as to allow it to prevent the then definition of student from having the effect of excluding intercalating students from eligibility for income support. He submitted that, in revoking those very words, the draftsman of the 1995 amendment could only (in the absence of any other evidence of the intention of the promoter of the legislation) have intended to produce the effect unsuccessfully argued for by the adjudication officer in Clarke and Faul. Finally, Mr. Singh cited the decision of Mr. Commissioner Rowland in CIS/14477/1996 where, although the approach adopted in CIS/13986/1996 was not specifically argued, the Commissioner reached a result that was inconsistent with that approach.

There was also a subsidiary argument which is more directly relevant to the other appeal heard with this one, CIS/13276/1996. However, it needs to be mentioned here, as it affects the general argument. In CIS/13276/1996, the claimant was injured in a road accident in July 1995 and was not fit to return to the final year of her course in September 1995. She was granted one year's leave of absence, to return to her course on 23 September 1996. She thus appeared to be in the position described by Mr. Commissioner Howell in CIS/13986/1996 where the last day of the course for which she was currently enrolled and was unconditionally entitled to attend could be identified. However Mr. Turville argued that such an identification was not possible, because the claimant could not know whether she would in fact be fit to return to her programme of studies in September 1996. He also argued that it would be monstrous if claimants who failed examinations were entitled to income support while excluded from attendance, but students excluded from attendance by reason of injury or illness were not entitled. He submitted that a similar argument could be made that the claimant's original course had ended or that she had finally abandoned that course and that when and if she returned to study in September 1996 she would be on a different course. Mr. Singh submitted that if the dismissal argument in CIS/13986/1996 could spill over into abandonment cases that was additional evidence of the wrongness of the approach. The same could have been said about Ms. Clark and Ms. Faul, yet they only succeeded in the Court of Appeal because of the words "throughout any period of term or vacation".

On this question, I regret that I am unable to follow CIS/13986/1996. That is for essentially two reasons: one to do with the construction of "the course" in the definition of student and one to do with the effect of Clarke and Faul.

The finding that two constructions of "the course" are arguable is central to CIS/13986/1996. Where I part company with Mr. Commissioner Howell's approach is in the assertion that identifying the course as the actual programme of attendance and study to be followed by the individual person requires identifying it as "the continuous course of full-time study for [the period of academic years] for which he originally enrolled" (para. 14 of CIS/13986/1996). I do not see why such temporal connotations necessarily follow. For example, I do not see why, in the circumstances of exclusion from normal progress because of examination failure, the fact that the person can no longer obtain the originally aimed-for qualification on the originally expected date, means that, if re-admitted after an interval, the re-admission must be to a different course. I do not see why it is crucial that the last day of the course will turn out to be later than the last day which was expected at the outset. It seems to me a much more natural use of language to say that in such circumstances, if the person is re-admitted to follow essentially the same programme which would have been required if the examinations had been passed first time and to obtain the same qualification, the person returns to the same course. The facts that the person's individual programme of attendance and study will now end on a date a year later, say, than previously expected and that most of the other students at that stage of the programme will have started a year later than the person seem to me to make no difference. I am afraid that I see little if any difference in the results between looking at the course as the general programme offered by the relevant institution and looking at the course as the programme followed by the relevant individual, shorn of the temporal connotations which in my view should not be attached to the second approach.

So far as Clarke and Faul is concerned, Mr. Commissioner Howell appears to suggest that, because the claimants in that case could always identify the last day of the course for which they were currently enrolled and were unconditionally entitled to attend, those in comparable positions would be caught by the definition of student as amended in August 1995. It was the fact that the claimant in CIS/13986/1996 could not know whether and when he would pass his re-sit examinations so as to qualify for the next stage of study which enabled the Commissioner to accept that the claimant had been finally dismissed from his original course. There is force in Mr. Turville's argument that a person who is given leave of absence as a result of illness or injury (as was Ms. Faul and the claimant in CIS/13276/1996) does not have an unconditional right to return, as most institutions impose a test of fitness to do the course. As I have indicated in the previous paragraph, I do not think that whether or not the last day of the course can be identified at any particular time is very important, but even if it were, I do not think that it forms a reliable line to distinguish cases of examination failure from cases of intercalation for other reasons. The ground for putting cases of examination failure in a special category thus falls away. Although I see the attraction of mitigating the crude harshness of the 1995 amendment for one group affected, I rather agree with Mr. Turville that there seems no good reason why those who fail examinations should be favoured over those who are disabled from continuing their studies by illness or injury.

In addition, I do not find it possible to avoid the effect of what was decided in Clarke and Faul. Of course, in that case the Court of Appeal was not dealing specifically with someone who had failed examinations, and did not have the approach adopted in CIS/13986/1996 specifically put to it. I accept Mr. Singh's submission that what was said by the Court of Appeal about abandonment and dismissal was part of the ratio decidendi of the case. Glidewell LJ stated expressly, and Hoffmann LJ by necessary implication, that the appeal would have been decided against the claimants on the basis of the meaning of "abandon" and was only decided in their favour because of the point on "throughout any period of term or vacation". When one looks at the passage quoted in paragraph 16 above from Hoffmann LJ's judgement it is clear, from the way in which he talks of a person returning to the remainder of the course after an intercalated year and of what total abandonment of the-course means, that he did not regard "the course" as altered by the interposition of the intercalated year and the postponement of the last day of the course. It seems to me that if the approach of CIS/13986/1996 were right, it would undermine the distinction between final and total abandonment of a course and an abandonment which is not final, which is part of the decision in Clarke and Faul. As I have already concluded that the same principles should be applied to cases of abandonment and cases of dismissal, it follows that the approach of CIS/13986/1996 is, in my judgement, inconsistent with Clarke and Faul.

Accordingly, I follow CIS/14477/1996 in preference to CIS/13986/1996. I acknowledge that this involves accepting that the 1995 amendment, as it was put in CIS/13986/1996, has the extraordinary result of creating:

"a class of outlaws who were prevented from obtaining public assistance by the mere fact of having once signed up for public assistance and not being finally excluded from it."

However, I consider that in the light of Clarke and Faul, Commissioners do not have the freedom to interpret the definition of student in regulation 61 of the Income Support Regulations so as to avoid that result.

The decision on the appeal

The upshot is that the appeal tribunal of 5 June 1996 erred in law deciding that the claimant was entitled to income support from 20 December 1995. It adopted a wrong legal approach to the meaning of student. Accordingly the appeal tribunal's decision must be set aside. I consider that I should substitute a decision on the basis of the undisputed facts before the appeal tribunal and further information about subsequent developments given at the oral hearing, in order to dispose of the issue on the appeal as fully as possible.

The appeal tribunal found that the claim was made on 20 December 1995. That was a mistake, as it was a matter of agreement that the claim was to be treated as made on 11 December 1995, and can be corrected without difficulty. Mr. Turville explained in detail the relevant dates, which appeared at first sight rather odd in the appeal tribunal's findings. The oddities turn out to stem from the semester system operated by the University of Sheffield. The claimant was due to take the examinations for the first semester of academic year 1994/95 in January 1995. Because of illness, he did not take those examinations and was allowed to defer them until summer 1995. He attended courses in the second semester of 1994/95 and passed the examinations for those courses in June 1995. In August 1995 he sat the examinations for the first semester courses and failed two of them. He was then registered as an external student not in attendance and was allowed to re-sit the failed examinations as an external student in January 1996. He passed those examinations, but since he had already completed the second semester courses, he could not begin the following year of his programme of study until September 1996. He did return to full time study then.

I regard the claimant's return to actual attendance on a full-time course of study as putting an end to the running of the claim for an indefinite period made on 11 December 1995. I do not have the precise date, but that can be identified by the adjudication officer. Throughout the period in issue on the claim, the claimant falls within the definition of "student" in regulation 61 of the Income Support Regulations, as he had started on a course of full-time study, which had not ended, and which he had not abandoned or been dismissed from. Therefore throughout he was deemed by regulation 10(1)(h) of the Income Support Regulations not to be available for employment, so that he could not be entitled to income support. If there is any dispute about the identification of the end date of the period in issue, the appeal may be returned to a Commissioner for further decision.

Date: 16 June 1997 (signed) Mr. J. Mesher

Commissioner

The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.

DECISION OF THE COURT OF APPEAL

Mr. R. Drabble QC (instructed by Howells, Sheffield S4 7LG) appeared on behalf of the Appellant.

Mr. J. R. McManus (instructed by the Treasury solicitor) appeared on behalf of the Respondent.

LORD JUSTICE AULD:

This is an appeal by Mr. Damian O'Connor from an order of Mr. J. Mesher, Social Security Commissioner, of 16 June 1997 that he was not entitled to income support. The case concerns the Government's different treatment for social security purposes of students in higher education according to whether they are full-time or part-time students. Its policy is that, in the main, full-time students should not be entitled to social security support even when temporarily not attending their course and involuntarily unemployed, but that part-time students who are involuntarily unemployed should be so entitled.

The legal issue in this appeal arising from that policy is whether Mr. O'Connor in December 1995 was a "student" within the meaning of that word in Regulation 61 of the Income Support (General) Regulations 1987, so disentitling him to income support (since replaced by the jobseeker's allowance). Section 124(1) of the Social Security Contributions and Benefits Act 1992 included among those entitled to the support persons "available for, and actively seeking, employment". By Regulation 10(1)(h) of the 1987 Regulations, a "student" was "not to be treated as available for employment" and did not, therefore, qualify for the support. Before 1 August 1995 Regulation 61 defined a student as:

"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 purpose 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 .." [my emphasis]

The same regulation defined the ""last day of the course" for that purpose 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".

Following the decision of this Court in Chief Adjudication Officer v. Clarke and Faul [1995] ELR 259, the Regulation was, on 1 August 1995, amended to delete the words I have emphasised; it is the Regulation in its amended form that is said to govern Mr. O'Connor's case. I say "said to govern" because he challenges the vires of the amendment giving rise to it as an alternative to his case on its construction.

Paragraph (a) of the definition of "student" in Regulation 61, in its pre- and post-amended form, was a deeming provision. Where a claimant started on a full-time course it provided that he should be "treated" as continuing to attend it, and hence to remain a "student" and be excluded from income support, until its last day or earlier abandonment or dismissal. The deeming effect of the provision depended on a claimant having started a full-time course, and it was a necessary function of it that he could be treated thereafter as attending it even when he was not. The critical question in Clarke and Faul was, and here is, whether non-attendance may be for such reason and/or of such duration, regardless of abandonment or dismissal, that a claimant can no longer be treated as attending on a full-time course because his non-attendance has brought the course to an end.

The rationale for the general exclusion of full-time students of university age from recourse to income support when in need seems to have been that they could normally be expected to rely on educational grants or, increasingly, student loans to cover the period of their full-time study, including all vacation periods. However, in the event of a substantial interruption of their full-time studies they could not normally count on the continuance of such support. And, on the Chief Adjudication Officer's case on regulation 61, they were excluded from income support because of their continuing status as a student, notwithstanding the interruption of their studies and their possible availability for work and active search for it. The only material and partial exception was in the case of sickness where there was an entitlement to support, but only after a period of 28 weeks' sickness. (1987 Regulations, reg. 8, Sch 1, paras. 5 and 7).

In Clarke and Faul Hoffmann and Glidewell LJJ, Hirst LJ dissenting, held that so substantial periods of absence from a full-time course as an intercalated academic year or two terms in an academic year, pending an intended or possible resumption of the course at the end of them, did not qualify as "period[s] of term or vacation" within the course. The result, therefore, was that the claimants were not students and were thus able to claim income benefit during the intercalated periods. Hoffmann LJ, after tracing the recent history of state provision for students and identifying the link between it and their exclusion from social security, said, at 264G-H, with regard to the times of "any period of term or vacation within" the claimants' respective courses:

"These are precisely the times for which, under the awards and loans system, .. [a claimant] is entitled to support. On the other hand he is not a 'student' when his attendance at the course has been suspended by an intercalated period such as Ms. Clarke and Ms. Faul obtained. Such a period cannot be fairly described as a period of either term or vacation within the course."

It is plain from all three judgments of the Court that if the regulation had then been in its present form, without the words "throughout any period of term or vacation within .. [the course]", the claimants would have failed in their contention that they were not students during the relevant periods. See per Hoffmann LJ at 263F-G, per Hirst LJ at 265E-F and per Glidewell LJ at 266D. It also plain that Mr. Richard Drabble, QC, who appeared for the claimants, as he does for Mr. O'Connor here, acknowledged as the centre point of his argument that those words made all the difference. See 263C-E, 264F-G and 266D.

The main issue on Mr. O'Connor's appeal is whether he was "a student" within the meaning of regulation 61 when, for a full academic year, he was not attending any full-time course of study but registered as an external student. During part of that period material to his claim he was unemployed, available for and actively seeking employment and not attending any course of study. He claims that he was not, therefore, a "student" within the regulation and was entitled to income support. The Chief Adjudication Officer's and Secretary of State's case is that, as Mr. O'Connor had "started on such a course", that is, a full-time course within the meaning in the regulation, he was deemed to be a person "attending a full-time course of study" until its last day or his earlier abandonment of or dismissal from it. And, as he intended to re-sit his examinations, he could not be said to have abandoned it and was, therefore, a student and, thus, not entitled to income support.

The essential facts of the case are that in October 1993 Mr. O'Connor began a full-time degree course for a BA in business studies and economics at the University of Sheffield, a course that would normally take three years. In his second year, 1994-95, he failed part of his examinations. The University agreed that he could take leave of absence for the following year and re-sit them as an external student during that year, with a view to resuming the course in the following year, 1996-97. According to the University's records for 1995-96 he duly registered as an "external" student, on a "[p]rogramme and level of study" of "Business Studies and Economics 2 repeat year" with an "[e]xpected completion date 14.06.97" and marked as "[n]ot in attendance". He was not entitled to attend lectures during the year or use any of the University's facilities, or to any form of student funding. For part of the year he combined his studies away from the University with a job. There is no dispute that in December 1995, when he made the claim for income support the subject of this appeal, he was unemployed and available for and actively seeking employment, one of the conditions of entitlement to income support under Section 124(1)(d) of the 1992 Act.

However, the Chief Adjudication Officer and the Secretary of State claim that the effect of the latter exercising his power in Section 137(2)(d) of the 1992 Act, to amend the 1987 Regulations by excluding from the definition of "student" in regulation 61 the words "throughout any period of term or vacation within it", was that Mr. O'Connor was to be treated as a student throughout 1995-96 and thus not available for employment at the material time, and hence excluded from income support.

The Social Security Appeal Tribunal held that Mr. O'Connor was not a student and was entitled to income support. Its reasons included the following:

"There is a considerable difference between a person who stops in the middle of a course intending to have a few months or terms off and then return on the same course and one who abandoned the course as such and becomes an external student. An external student is not the same thing as a student who has delayed the work of part of the course, he is not in fact attending the University at all and merely taking the exams. He can take these at any time and not like an ordinary student who has merely an interruption in his course, pays no fees because he receives no tuition, he cannot take books out of the library and is not registered by the University as a student at all. The tribunal therefore could not see how it could be argued that such a person is attending a full-time course, feeling that the situation was very different from the student [sic] referred to in the Clarke and Faul Decision."

The Social Security Commissioner reversed the tribunal's ruling. He held that an absence from a full-time course followed by resumption and a corresponding delay in final completion of the course remained one course as envisaged by the regulation. And he held that, in the light of the reasoning of this Court in Clarke and Faul and the subsequent amendment of the Regulation, its clear effect was that Mr. O'Connor remained a student throughout his year as an external student and was thus excluded from income support. He held that such a result was not irrational, applying as the critical test for the purpose that the Secretary of State had not misled or deceived Parliament and had not otherwise acted in bad faith.

Mr. Drabble prefaced his submissions by stating that the Chief Adjudication Officer and the Secretary of State based the refusal of income support to Mr. O'Connor on two fictions derived respectively from Regulations 61 and 10, namely:

that, although he was not actually attending a full-time course of study, he was deemed to be full-time student; and

that, although he was actually available for employment, he was deemed not to be so available.

He submitted that such an artificial result should be scrutinised with care and that if it is correct as a matter of construction, having regard particularly to the 1995 amendment of Regulation 61, that amendment is ultra vires because it is irrational.

Construction

He made two main submissions on the issue of construction, based respectively on the judgments of Evans and Hobhouse LJJ in Chief Adjudication Officer v. Webber [1997] 4 All ER 274, in which the facts were governed by the 1987 Regulations before the 1st August 1995 amendment. The form of the course of study in that case was very different from that in Clarke and Faul or here. It was a flexible "modular" course which could be undertaken part-time or full-time and over a period of a student's choice depending on the number of "modules" or topics studied at any one time. The claimant studied full-time in his first year but failed his examinations. As a result he was only permitted to start the second year as a part-time student, which he remained for the first two terms. As a part-time student he was ineligible for a student award or loan. His claim for income support was upheld by this Court, consisting of Evans, Peter Gibson and Hobhouse LJJ, but they did not all give the same reason.

Evans and Peter Gibson LJJ held, with reference to the unamended regulation, that as the claimant was not following a full-time course in the second year, there could be no "period of term or vacation within it", that is, within such a course, and he was not, therefore, a student during that period. Evans LJ also expressed the view that, independently of those words, the deeming provision in the regulation did not have the effect of "creat[ing] a status of full-time student which does not exist in fact". Hobhouse LJ held that the critical matter was the form of the course to which the claimant had committed himself when he started it. He said that although the claimant had started on a full-time basis, it was a flexible "mixed mode" course which did not commit him to continuing it on such a basis. He said, at 281D-282B:

" ... 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. ...

... a course which does not require full-time attendance cannot be described as a full-time course. ..."

Mr. Drabble based his first submission on Evans LJ's second reason in Webber. He submitted that in the circumstances of the case the "deeming" effect of regulation 61 could not have the effect of continuing throughout the 1995-96 academic year Mr. O'Connor's initial status as a full-time student. He said that the reality was that he had abandoned that status by ceasing full-time study and had become an external student for the year. He argued that it is a condition precedent of the deeming provision that the course the claimant is currently following is a full-time course. He relied upon the following passage from the judgment of Evans LJ in Webber, at 284j-285a:

" ... 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 on the deeming provision to create a status as student which does not exist in fact. In Clark's and Faul's case 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 on 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'[see per Hoffmann LJ in Clarke and Faul at 264D-E]. I should require express words of the utmost clarity to persuade me that Parliament intended to produce that disgraceful result."

Mr. Drabble advanced two related and overlapping arguments in support of his reliance on Evans LJ's approach.

The first was that the relevant "course of study" for the purpose of the definition of student in regulation 61 ended - had its "last day" - at the end of the summer term in 1995 and that he was, therefore, not a student during the following year. As we have said, regulation 61 defined "the last day of the course" 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."

Mr. Drabble laid stress on the use of the present tense in the words in that definition "in respect of which the student is enrolled". He said that the only course on which Mr. O'Connor was enrolled at the material time was as an external student re-sitting some of his second year examinations; put another way he was not at that time enrolled in a full-time course of study.

The second argument was that there was no basis for treating Mr. O'Connor as a full-time attender and hence a student in the 1995-96 academic year because he had "abandoned" the course of full-time study at the end of the summer term in 1995.

Mr. McManus, for the Chief Adjudication Officer and the Secretary of State, challenged the validity of Evans LJ's reasoning in declining to give effect to the deeming function of regulation 61 in the circumstances of the case, and noted that it was not adopted by Hobhouse or Peter Gibson LJJ. However, he submitted that, even on Evans LJ's distinction between a student who is not attending a course and one who is not a student at all, Mr. O'Connor remained a student throughout the 1995-96 academic year because he was registered with and regarded by the University as an external student during the period. He said that if the course was characterised at the outset as a full-time course, Mr. Drabble's argument based on Evans LJ's reasoning falls away, because to accept it would defeat the deeming effect of Regulation 61.

As to the "last day" argument, Mr. McManus submitted that, abandonment or dismissal apart, the last day of the course of study was that of the course he started - here, a degree course in business and economics studies, not some break in it for whatever reason. On Mr. O'Connor's own case the last day of his course was initially at the end of the summer term 1996, but subsequently extended, as a result of his examination failure, to the end of the summer term 1997. As to the "abandonment" argument, Mr. McManus said, in reliance on all three judgments in Clarke and Faul, that "course of study" meant an academic course leading to a particular qualification, not some part of it determined by the student's manner of following it. He said that that was clearly how Hoffmann LJ had approached the matter in the following passage in his judgment, at 262H-263C, with which Glidewell and Hirst LJJ agreed, when making the point that only total abandonment of a course could make the definition work:

"The context places the word in conjunction with two other events which are undoubtedly final, namely the end of the course and the student's dismissal from it. Furthermore, nothing short of total abandonment can make the definition work. If the commencement of an intercalated year means that the definition no longer applies, what happens when the student returns a year later? The definition cannot apply to the remainder of the course, because it contemplates that the period which ends with the last day of the course will have begun with the student starting on the course, not with his resuming it after a break."

With respect to Evans LJ, I do not agree with his reservations as to the deeming effect of Regulation 61(a) where the facts do not correspond with the effect deemed. The whole point of a deeming provision is that it requires a fiction to be treated as fact. I see no uncertainty in the words or purpose of the Regulation; they require that a person who has started a full-time course should be treated as attending it until its last day subject to his earlier abandonment of or dismissal from it, and are thus intended to cover periods of non-attendance for whatever reason so long as the person remains committed to finish the course. I also have difficulty, in the context of a provision which defines a student by reference to deemed attendance on a full-time course, with the distinction Evans LJ drew between a student who is not attending such a course and someone who "is not a student at all", unless the status has been brought to an end in one of the ways specified in and forming part of the definition of a student in the deeming provision itself.

The position is now put beyond doubt by the amendment of the Regulation following the decision in Clarke and Faul. Its clear purpose was to underline the deemed continuity of full-time student status even when interrupted, for whatever reason, for as long as a complete academic year or more. Moreover, even on Evans LJ's broad distinction between non-attendance of a student and someone who is not a student at all, the circumstances here, where Mr. O'Connor clearly remained a student, albeit an external student, throughout the material period, clearly put him in the former category of a deemed attender and hence a student. As Mr. McManus submitted, if there was a condition precedent to the exclusion from income support it was that the claimant should have started a full-time course, not that he was enrolled on one at the time of his claim.

As to the "last day" argument, Mr. Drabble's interpretation would negate the whole purpose of the deeming provision, which is to treat attendance on a course that started as full-time as continuing to be full-time even though there are breaks in it when the student does not follow the course full-time. In my view, the provision was concerned with one academic course leading to one qualification, not with two or more courses leading to the same qualification or different qualifications, variously full-time or part-time according to and depending on the student's pattern of attendance. I follow Hoffmann LJ's reasoning in Clarke and Faul that I have cited and prefer the following analysis of Mr. Commissioner Mesher in paragraph 23 of his decision in this case to that of Mr. Commissioner Howell in CIS/13986/1996. The former said:

" The finding that two constructions of 'the course' are arguable is central to CIS/13986/1996. Where I part company with Mr. Commissioner Howell's approach is in the assertion that identifying the course as the actual programme of attendance and study to be followed by the individual person requires identifying it as 'the continuous course of full-time study for [the period of academic years] for which he originally enrolled' ... I do not see why such temporal connotations necessarily follow. For example, I do not see why, in the circumstances of exclusion from normal progress because of examination failure, the fact that the person can no longer obtain the originally aimed-for qualification on the originally expected date, means that, if re-admitted after an interval, the re-admission must be to a different course. I do not see why it is crucial that the last day of the course will turn out to be later than the last day which was expected at the outset. It seems to me a much more natural use of language to say that in such circumstances, if the person is re-admitted to follow essentially the same programme which would have been required if the examinations had been passed first time and to obtain the same qualification, the person returns to the same course. ..."

Similarly the "abandonment" argument must fail since it requires an interpretation of the word "course" in the definition of "the last day" so as to cut it adrift from the main deeming provision of the Regulation into which it is incorporated by reference. That is, it focuses on the question whether as a matter of fact a student is attending a full-time course at the material time rather than on its nature when started, here a full-time course leading to a particular degree. In my view, abandonment for this purpose means permanent or final abandonment of the course of study which a claimant had started. See Clarke and Faul, per Hoffmann LJ in the passage I have cited.

Mr. Drabble said that he based his second and alternative submission on construction on Hobhouse LJ's reason for allowing the claim in Webber. However, his argument really was that the facts of this case were materially indistinguishable from those in Webber because Mr. O'Connor, like Webber, having started in full time attendance on the course, was permitted after a period to continue it on some other basis. As a matter of law he contended that Hobhouse LJ was wrong in ruling that commitment to a full-time course at the start was the determining factor, not what happened thereafter. He submitted that Mr. O'Connor had started on a course which was not, in the event, full-time because it included a year in which he was not required to attend the University at all, and he was not, therefore, a student within the meaning of regulation 61.

Mr. McManus submitted that whether a course of study is full-time for the purpose of this deeming provision is determined at its start, as Hobhouse LJ clearly accepted in Webber, not according to later changes prompted by events. He said that where, as here, a claimant has clearly started a course which was intended to be full-time throughout, a change to part-time studying or a complete break from studying for a period after re-sitting examinations and while waiting to join the next part of the course, or, say, for health or other compassionate reasons, does not change the full-time character of the course. Put shortly and more specifically, Mr. McManus submitted that Mr. O'Connor is not entitled to re-characterise his course from full-time to part-time because he failed his examinations part way through it.

In my view, Mr. McManus'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, at 281a-e and 282e:

" The present case raises a difficulty which was not discussed, nor did it need to be discussed, in either of the previous cases. ... 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 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 subparagraph (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. ...

... 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 reg 61 but to recognise that a course which does not require full-time attendance cannot properly be described as a full-time course."

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. During his year off he had not abandoned and had not been dismissed from it, and, because of the delay caused by his failure of some examinations, it was not due to finish until 14 June 1997. Any other view would defeat the deeming provision, leaving the definition of a full-time student to later events, notwithstanding the initial commitment of the student and the institution to its full-time nature.

Vires

Mr. Drabble's further and alternative submission, in the event of failure of his submissions on construction, is that the amendment of the regulation is ultra vires because it is irrational.

Regulations made under Section 137(2)(d) of the 1992 Act were subject to the negative resolution procedure - annulment by either House of Parliament; see Section 176(3). Mr. Commissioner Mesher appears to have taken the view that where, as here, the Secretary of State's regulation making power was subject to Parliamentary scrutiny, the courts could only find invalidity by reason of irrationality if the Secretary of State had misled or deceived Parliament or had otherwise acted in bad faith.

It is common ground that that was too narrow a view. Irrationality is a separate ground for challenging subsidiary legislation, and is not characterised by or confined to a minister's deceit of Parliament or having otherwise acted in bad faith. That means irrationality in the Wednesbury sense. Counsel have referred to the difficult notion of "extreme" irrationality sometimes suggested as necessary before a court can strike down subsidiary legislation subject to Parliamentary scrutiny, citing Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment [1986] AC 240, HL. He spoke, at 247G, of "the consequences ... [being] so absurd that ... [the Secretary of State] must have taken leave of his senses", a form of words with which the other members of the Appellate Committee agreed. They also referred to Lord Bridge's reference in R v. Secretary of State for the Environment, ex p. Hammersmith LBC [1991] AC 521, at 597F-G, to "manifest absurdity".

It is wrong to deduce from those dicta a notion of "extreme" irrationality. Good old Wednesbury irrationality is about as an extreme form of irrationality as there is. Perhaps the thinking prompting the notion is that in cases where the minister has acted after reference to Parliament, usually by way of the affirmative or negative resolution procedure, there is a heavy evidential onus on a claimant for judicial review to establish the irrationality of a decision which may owe much to political, social and economic considerations in the underlying enabling legislation. Often the claimant will not be in a position to put before the Court all the relevant material bearing on legislative and executive policy behind an instrument which would enable it with confidence to stigmatise the policy as irrational. Often too, the Court, however well informed in a factual way, may be reluctant to form a view on the rationality of a policy based on political, social and/or economic considerations outside its normal competence. That seems to have been the approach of Mustill LJ, giving the judgment of the Divisional Court before the Nottinghamshire and Hammersmith authorities in a case involving the affirmative resolution procedure, R v. Secretary of State for the Environment, ex p. The GLC and ILEA 3 April 1985 (unreported), see transcript, p. 31.

Sir Thomas Bingham MR has made the same point in the recent case of R v. Ministry of Defence, ex p. Smith [1996] QB 517, CA, in which the Court declined to quash decisions of discharge of homosexuals from the armed forces and the Ministry's policy on which they were based. Sir Thomas, with whom Henry and Thorpe LJJ agreed, rejected, at 556A-C, the notion of a more exacting test than Wednesbury irrationality, but added:

"The greater the policy content of a decision and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations."

However, the Court appears to have softened this approach in matters involving consideration of human rights. Sir Thomas Bingham and Thorpe LJ expressly approved, at 554E-F and 564H-565A, the following formulation in argument of Mr. David Pannick, QC:

" The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

Mr. Drabble described Mr. O'Connor's case as one of involuntary unemployment and submitted that it was irrational to exclude from income support a non-attender of a course of full-time study, notwithstanding his availability for work and lack of any other state finance, simply because he had not abandoned the course. He submitted that the 1995 amendment introduced an irrational distinction between a person who, having failed his examinations, did not intend to take them again and was involuntarily unemployed and a person who, having failed his examinations, did intend to take them again and was similarly involuntarily unemployed. Only the former qualified for income support. The effect, he submitted, was to force the latter to abandon his or her education in order to qualify for it. He said that there was further irrationality in the distinction between a full-time student who temporarily had to give up his full-time studies and was involuntarily unemployed and a part-time student in the same position, yet only the latter qualified for income support.

Mr. Drabble sought support from the following observation of Hoffmann LJ in Clarke and Faul, at 264D-F, quoted in part and with approval by Evans LJ in Webber, at 285b-c:

"One would ... expect that a student's exclusion from social security benefits would be mirrored by his entitlement to an education award and a student loan. Otherwise there would be an anomalous class of people who for no obvious reason were left to destitution without State support of any kind. It is of course possible that for some reason which escapes us, such an anomaly was intended by the draftsman. But the courts should, I think, try to construe the regulations to reflect a coherent policy unless the language clearly makes this impossible."

Mr. Drabble maintained that the amendment was not a legitimate exercise of the regulation making power under the 1992 Act.

The nearest Mr. McManus came to advancing a policy reason for the distinctions of which Mr. Drabble complained was to draw the Court's attention to a memorandum from the Secretary of State to the Social Security Advisory Committee of 6 March 1998, explaining his proposal to clarify the policy intention behind the amendment of regulation 61. In summary, his explanation was that student loans and grants should be the primary source of finance for full-time students in higher education, that they should be encouraged to make progress with their studies and that, towards that end, in the event of an interruption in them, they should in general be expected to fend for themselves save for limited social security support in the event of illness.

The material parts of the memorandum are as follows:

"1. The Government proposes to amend social security legislation so as to clarify the policy intention on paying benefit to students. This is in response to the Court of Appeal who, in recent cases, have cast doubt on whether the present regulations meet the policy intention. ...

... The Government's intention was that the jobseeker's allowance (previously income support) should support jobseekers who are available for and actively seeking a full-time job. Full-time students who do not abandon their course or are not dismissed from it should continue to be regarded as full-time students for social security benefit purposes as their primary purpose is to complete their course and obtain their qualification.

The judgments of the Court of Appeal in Webber and Clarke and Faul were given on the basis of a number of different and, in some cases, conflicting, grounds. The Government therefore considers that the law is unclear and its intent is not being achieved. It aims to address this by way of the proposed amendments to all the social security legislation that applies to students.

...

The Government believes that the primary source of financial support for full-time higher education students should be the student loan/grant system and not the social security system (except [involuntary absence from a course because of illness]. It therefore proposes to amend social security legislation to make clear that full-time students are regarded as such for the purposes of social security benefits unless or until they complete or are finally dismissed from or finally abandon their course. ...

In providing the right to higher education student support via the loan/grant mechanism, the Government considers that students have a responsibility to make proper progress on their course and to study so that they pass the necessary examinations. Educational institutions do recognise that some students might find difficulty in adjusting to higher education and so provide the opportunity for failed examinations to be retaken at the end of an academic year. ... The Government believes that students should take responsibility for their own actions and will not provide State support in these types of cases. Where, through their actions, students take a year off or change to part-time attendance with the institution's permission, they are expected to support themselves, usually by obtaining temporary work."

Mr. Drabble submitted that the policy intention there disclosed does not explain the discrimination against the active jobseeker because he has started a full-time course which he is not able for the time being to continue. Nor, he added, does it explain why, even in the case of a full-time student whose course is interrupted by illness, he must wait 28 weeks before becoming entitled to security benefit.

Mr. Drabble sought to support his argument on irrationality, and also on construction, by reference to the declaration of the right to education in Article 2 of the First Protocol of the ECHR. The article provides:

" No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

It is plain from my conclusions on the matter of construction that, despite the differing approaches of Evans and Hobhouse LJJ in Webber, I do not consider there is an ambiguity in the regulation; nor, for reasons that I shall give in the context of irrationality, do I consider that the article would throw light on the matter if there were.

As to irrationality, Mr. Drabble argued that Parliament cannot have intended, in enabling the Secretary of State to make regulations, to empower him to require a full-time student to abandon his course of education or face destitution. Public policy, he said, requires the positive encouragement of education, not the reverse.

He acknowledged that the material part of article 2, the first sentence, is couched negatively and thus does not impose on the State an obligation to provide education or to subsidise a student's access to it. However, he maintained that where the State does, as here, provide education, the Article gives individuals a right to avail themselves of it. Denial of a right to return to full-time education as an alternative to destitution is, he submitted, a short step towards a breach of article 2 and, were it part of our law, would be an interference with the right. He also suggested that the Government's policy is an irrational discrimination against full-time students whose studies are interrupted and, as such, offends article 14 of the Convention. He relied on the ruling of the ECHR in the Belgian Linguistic Case (No. 2) [1968] 1 EHRR 252. He prayed in aid the Court's seeming relaxation in ex p. Smith of the rigour of the Wednesbury test, requiring some justification of a policy which is capable of contravening human rights.

Mr. McManus submitted that this is not an ex p. Smith type case because article 2 is not in play for two main reasons. First, there are rulings of inadmissibility by the Commission suggesting that the article is concerned primarily with school, not higher, education; see eg Yamsik v. Turkey (1993) 74 DR 14 and Sulak v. Turkey (1996) 84A DR 98. Second, the article does not require the State to subsidise a student in his exercise of his right to avail himself of education which it provides. As to article 14, he said that it would only be relevant if there were a right to which it could apply and there is none here.

In my view, the amendment to regulation 61 is not irrational in the Wednesbury sense. It is important to keep in mind the general effect of the provision and of the policy behind it, namely to finance full-time higher education studies out of student loans or grants rather than social security payments and to encourage full-time students to make progress with their studies rather than spinning them out with the aid of social security. There is not the same imperative for part-time students who, in the main, are in employment and need to tailor their pattern and periods of studying to their work.

The fact that the general policy may produce hardship in individual cases does not make it or the subsidiary legislation implementing it irrational. More specifically, simply because there may be a powerful or sympathetic case for inclusion in the system of social security benefits for full-time students whose courses are interrupted for one reason or another short of illness, and for full inclusion in the case of illness, does not make it irrational to exclude them. See eg R v. Social Fund Inspector, ex p. Healey & Ors. (1991) 4 Admin LR 713, CA, a challenge to the vires of general directions of the Secretary of State as to what needs may be provided for under the Social Fund, including a challenge to an anomalous exclusion from benefit in a particular circumstance. Farquharson LJ, with whom Parker and Scott LJJ agreed, said, at 720B and at 721F:

"As with any regulation or direction there will be cases ... that are excluded from the help which as a matter of humanity they ought to have but I do not agree that the policy can be said to be irrational. ...

The argument is really reduced to saying that because one category of need is included there is no logical conclusion for excluding another. ... in my judgment this argument must fail."

Although the Court was there considering the rationality of what needs the Secretary of State, as a matter of his discretion, had directed should be included, and here the Court is concerned with the rationality of a statutory exclusion from what would otherwise have been a statutory entitlement, I consider that the reasoning is equally applicable.

As Mr. McManus submitted, it was for the Secretary of State, under the scrutiny of Parliament, to decide who should qualify for income support and who should not. Simply because his policy may have operated harshly in individual circumstances did not make it irrational. One distinction between full-time students who are unemployed during an interruption of their courses and other unemployed persons, including part-time students, is that in general the period of unemployment of the former is and should be for a short and finite period. The primary concern of full-time students should be the progress of their studies not employment or recourse to social security benefits when not studying full-time and without work. The Secretary of State's concern, expressed in paragraph 5 of his memorandum to the Social Security Advisory Committee, that they should attend to their studies and pass their examinations, is a matter that he is entitled to take into account, and clearly did in making the amendment. Indeed, since student funding has begun to move away from grants to loans, it could support an argument that it is irrational that students who have failed their examinations should be entitled to social security benefits whereas those who have passed them have to pay their own way with borrowed money.

As to Mr. Drabble's reliance on the Convention, I do not consider, for the reasons advanced by Mr. McManus, that there is a potential breach of the right to education or, in consequence, discriminatory conduct. As the ECHR in the Belgian Linguistic Case (No. 2) made plain, in para. 3, at pp. 289-1, Article 2 does not require a member States "to establish at their own expense or to subsidise education of any particular type or at any particular level", simply "the right [of persons], in principle, to avail themselves of the means of instruction existing at a given time" . There is, therefore, no basis for a "modified" human rights application of the Wednesbury principle indicated by the Court in ex p. Smith. Even if there were, for the reasons I have given in the immediately preceding paragraphs, I am of the view that the Court could not regard the amendment or the policy on which it is based as irrational.

Accordingly, I would dismiss the appeal.

LORD JUSTICE THORPE:

The Government's rules regulating student eligibility for income support have been considered critically by this court twice in recent times. In Chief Adjudication Officer v. Clarke and Faul [1995] ELR 259, Hoffman LJ began his judgment by helpfully explaining the meaning of the word intercalation and also its origins. He then demonstrated that the regulations as then drawn should not be construed to exclude from income support students who were intercalating. He clearly considered that the boundary between financial support for students and financial support for those who were not students and who were available for work yet unemployed should be coterminous so that an individual passing from one territory to the other might do so without having to traverse an intervening desert. He said at 264:

"One would therefore expect that a student's exclusion from social security benefits would be mirrored by his entitlement to an education award and a student loan. Otherwise there would be an anomalous class of people who for no obvious reason were left to destitution without state support of any kind. It is of course possible that for some reason which escapes us, such an anomaly was intended by the draughtsman. But the courts should, I think, try to construe the regulations to reflect a coherent policy unless the language clearly makes this impossible."

However the Government then amended the regulations, apparently with the intention of creating such a desert for the intercalating student. This court in Chief Adjudication Officer v. Webber [1997] 4 All ER 274 concluded that the Government had failed to achieve that objective in relation to a university course which was at its outset modular or mixed mode. However there was some divergence of opinion as to the reasons for that failure. Hobhouse LJ accepted the Government's submission that the character of the course was fixed immutably at its outset but he held that since Mr. Webber had signed up for a modular and not a full-time course he was not caught by the amendment. Evans LJ however accepted Mr. Drabble's submission that the amendment caught only a full-time student at those times when although a full-time student he was not in fact attending a course. It did not catch a student who, although originally a full-time student, had ceased to be such because he had moved into a period of intercalation.

In the present case Mr. Drabble has had little difficulty in satisfying me that:

(a) Mr. O'Connor, although at the outset commencing a three year full-time BA course, in the academic year 1995/6 was registered on a non-attendant external course that permitted re-examination but prohibited attendance or the use of any university facilities. That was, of course, for the reason that he had intercalated.

(b) In that year he had intended to work and to study part-time. He had initially found a job and, after its termination, he was at all times actively seeking and available for work.

(c) There is no rational reason to distinguish between an intercalating part-time student actively seeking and available for work (who the Government contends is not eligible for income support) and any other part-time student actively seeking and available for work (who the Government accept is eligible for income support). Thus the Government's intention appears to be to discriminate against those students who for any reason choose to intercalate.

(d) The Government has had ample opportunity to justify or explain its policy in order to displace the appearance of irrationality or discrimination. Its only attempt is the press release of 6 March 1998. It can be said, perhaps charitably, that the writer seems not to have understood the concerns expressed in the earlier cases.

Against that background I conclude that it is permissible to accept Mr. Drabble's principal submission on the construction of regulation 61, effectively the argument that was accepted by Evans LJ. Mr. Drabble submits that the key to construction is to embrace into a single passage the definition of 'student' and the definition of 'last day of the course', both in Regulation 61 of the 1987 regulations. That produces this result, omitting words irrelevant to this appeal:

"Student means a person who is attending a full time course of study at an educational establishment and for the purposes of this definition -

(a) A person who has started on such a course shall be treated as attending it until the last day of the final academic term falls in respect of the course in which the student is enrolled."

Mr. Drabble of course submits that the ultimate emphasis is on the last day of the academic term of the course on which the student is enrolled. In Mr. O'Connor's case the use of the present tense points to the 1995/96 external course and not to the outset full-time course. I conclude that it is permissible to adopt this construction, influenced as I am by the passage from the judgment of Hoffman LJ which I have cited. It is a construction that leads to a fair result and a sensible conclusion. Mr. McManus in his submissions relied heavily on the alternative reasoning of Hobhouse LJ. But the passage in which he accepted the submission that the character of the course is fixed at outset is brief and not fully reasoned. He only said:

"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."

I accept that the approach of Hobhouse LJ would result in Mr. O'Connor's exclusion from benefit whilst intercalating but to avoid that outcome I prefer to follow the approach of Evans LJ.

I was less impressed by Mr. Drabble's alternative submission that the deeming provision in regulation 61 is ultra vires. Mr. Drabble accepted that he must demonstrate that in formulating the policy the Secretary of State has apparently taken leave of his senses. Despite the criticism of the policy and the absence of explanation, in my opinion Mr. Drabble failed to demonstrate that extreme. The explanation of the policy may be unpersuasive but it is far from senseless.

I express no view on Mr. Drabble's article 2 submission. It has not contributed to my conclusions on the construction of regulation 61. I would have allowed this appeal.

LORD JUSTICE SWINTON THOMAS:

I have read the judgment of Auld, LJ and I agree with it. It is clear that the interpretation of regulation 61 of the Income Support (General) Regulations, 1987, as amended, as found by Mr. Mesher, the Social Security Commissioner, the subject matter of this appeal, operates harshly on a man in Mr. O'Connor's position, and it may well be that it is unfair that he should be unable to claim income support when his circumstances are compared with those of other claimants who can make such a claim. However, we are called upon in this appeal to construe the true meaning of regulation 61, and not to adjudicate on the question of whether or not it operates fairly.

Regulation 61 as amended defines "student" for the purposes of the regulation as "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 until the last day of the course, or such earlier date, as he abandons it or is dismissed from it."

It is common ground that Mr. O'Connor had started on a full time course of study at the University of Sheffield. He had not abandoned it or been dismissed from it. He had been allowed by the University to take a year's leave of absence. In these circumstances, in my judgment, as a plain matter of construction he falls squarely within the definition of regulation 61 as a person who "shall be treated as attending" his course at the University and so not entitled to income support.

In Chief Adjudication Officer v. Webber [1997] 4 All ER 274, a case in which the facts were different to the present case, Evans, LJ said at page 284:

" 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 on the deeming provision to create a status as student which does not exist in fact. In Clarke's v. Faul's case 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 in 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 a parity of reasoning, I would hold that the deeming provision in regulation 61(a) cannot be relied on to create a status of a 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."

The amendment to regulation 61 was, of course, made to deal with the problem that was raised in the case of Clarke v Faul.

In Webber's case Hobhouse, LJ, as he then was, said at page 276:

" 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..........

The feature of the 1987 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........ No doubt for reasons relating particularly to the position of students during vacations, the regulations are drafted by a reference to the status of the relevant person at any given time and on the basis that the status of student once acquired should continue until terminated in one of the ways provided for in the regulations."

Hobhouse, LJ continued on page 281:

" The present case raises a difficulty which is 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........

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. ........ 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."

Accordingly Hobhouse, LJ rejected the submission put forward by Mr. Drabble in this case. Insofar as Mr. Drabble sought to derive support for his submission on the construction of regulation 61 from the judgment of Evans, LJ I do not accept that submission, and on this aspect of the appeal I prefer the reasoning of Hobhouse, LJ because, as I have said, however unfair the result may be, the construction of the regulation is, in my judgment, plain, and a person in Mr. O'Connor's position is deemed to be a full time student until he abandons or is dismissed from his course.

Mr. Drabble submitted that the regulation as amended is ultra vires as being irrational. It may be shown to be unfair but, in my view, it cannot possibly be stigmatised as being irrational.

Accordingly, and for the reasons given much more fully in the judgment of Auld, LJ I also would dismiss this appeal.

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