Upper Tribunal (Administrative Appeals Chamber)

Secretary of State for Work and Pensions v LB [2009] UKUT 117 (AAC) (24 June 2009)
Students
loans and grant income

IN THE UPPER TRIBUNAL File No: CIS 004/09

Administrative Appeals Chamber

24 June 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

DECISION OF THE UPPER TRIBUNAL

Judge: P L Howell QC


 


IN THE UPPER TRIBUNAL File No: CIS 004/09

Administrative Appeals Chamber

24 June 2009

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

Appellant: Secretary of State for Work and Pensions

Respondent: [the claimant]

Claim for: Income Support

Appeal Tribunal: Sheffield

Tribunal Case Ref: 138/08/01220

Tribunal date: 9 June 2008 (reasons issued 16.08.08)

DECISION OF THE UPPER TRIBUNAL

The Secretary of State's appeal against the tribunal decision of 9 June 2008 is dismissed.

REASONS

Mr P L Howell QC:

1. This appeal by the Secretary of State is dismissed, as in my judgment there was no error of law in the decision of the Sheffield appeal tribunal on 9 June 2008 (Mr N M Lumley, chairman, sitting alone) such as to warrant setting that decision aside. The decision of the tribunal was one it was entitled to reach on the factual evidence and contentions put before it, and I therefore accept the submission by the claimant's representative that the tribunal chairman committed no error of law in reaching it, even if (as I also accept) the more complete evidence now available to me might well have led him to a different result in the case had it been produced at the right time.
2. There is no dispute at all about the basic facts. The claimant is a single parent with a young daughter, and was eligible at all material times to claim income support subject to meeting the means-testing conditions. On 25 September 2006 she started a full-time degree course in social care work at Sheffield Hallam University. For this she received funding assistance by way of a student loan assessed and paid in the normal way and in addition a "social work bursary" of approximately the same amount again. This was a non-means tested grant awarded to her by the General Social Care Council (the GSCC) for the academic year 2006-07, in exercise of its delegated powers under section 67 of the Care Standards Act 2000 to make grants as an incentive to persons to secure their training in approved courses in social care work.
3. The student loan and the bursary grant were both paid to the claimant in three termly instalments at or near the start of each term of her academic year. There is no doubt or dispute that their combined effect was to take her assessable income over the qualifying limit for income support from 25 September 2006 onwards, and until the end of the summer term the following year; or that her previous income support award had been rightly superseded and terminated on that ground from 26 September 2006 (the start of the next benefit week after the beginning of her year) as it appears had been done by a decision on or about 26 October 2006 (pages 10 to 11).
4. The appeal to the tribunal was concerned with the single issue of whether the claimant's three bursary payments had to be counted (unlike those for her student loan) as giving her a continuing weekly income for income support purposes after she completed the first year of her course at the end of the summer term on 25 June 2007, so as to extend over the summer vacation months of July and August as well. On the assumption that they did not, she had reclaimed income support on 27 June 2007 as a single parent without any actual income during those months. Everything depended on the treatment of the bursary payments: it is common ground that those for the student loan fell to be apportioned only over the weeks down to the end of the summer term on 25 June 2007, and the claimant had no other income or resources to be taken into account.
5. On 12 July 2007 the Secretary of State determined this issue in favour of the claimant. He decided her bursary payments were to be apportioned in the same way as her student loan and accordingly awarded her income support from 27 June 2007.
6. That decision was however short-lived as on 21 August 2007 the Secretary of State issued a revised decision revoking the claimant's new award on the ground that it had been made in error of law. He did so on the basis of a fresh determination that the three termly payments for her social work bursary had after all, unlike those for the student loan, to be taken into account as income apportioned over the full 52 weeks of her first university year from September 2006, including July and August 2007. As a matter of arithmetic it is common ground that if the apportionment had to be done in that way the bursary payments were enough, even on their own, to send the claimant's weekly income for July and August over the prescribed level and to prevent her qualifying for income support. It was against that second decision, revising and revoking the award of benefit already made to her from 27 June 2007, that the claimant appealed to the tribunal.
7. The relevant law which the Secretary of State and the tribunal were bound to apply is in regulations 61 and 62 of the Income Support (General) Regulations 1987 SI No. 1967, which prescribe how and over what periods money received by way of a student grant is to be taken into account as income for income support purposes.
8. In this context the evidence before the tribunal proved, and there is no dispute, that at all material times, in terms of the definitions in regulation 61:

(a) the claimant was a full-time student, and she was engaged on a full-time course of advanced education or study; and

(b) her social work bursary was a "grant"; and the money she received from it was "grant income".

9. It was also in my view clearly established by the evidence, and so correctly found by the tribunal, that the claimant's "period of study" for the academic year 2006-07 consisted of the 43 weeks down to the 25th of June in that year. This was expressly confirmed by the faculty administrator on behalf of the university in the document at page 8, and there was no evidence or suggestion to show that either the claimant's grant or her loan had been "assessed at a rate appropriate to her studying throughout the year" so as to take her out of the normal rule in paragraph (b) of the definition in regulation 61 that her "period of study" for that year ended with the summer term.
10. Therefore the only question for the tribunal, as it correctly directed itself, was whether the claimant's three termly payments of her social work bursary for the academic year 2006-07 were required to be apportioned as weekly "grant income" under paragraph (a) or under paragraph (b) of regulation 62(3), which provides so far as material that:

"(3) …a student's grant income…shall be apportioned –

(a) …in a case where it is attributable to the period of study, equally between the weeks in the period beginning with the benefit week, the first day of which coincides with, or immediately follows, the first day of the period of study and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of the period of study;

(b) in any other case, equally between the weeks in the period beginning with the benefit week, the first day of which coincides with, or immediately follows, the first day of the period for which it is payable and ending with the benefit week, the last day of which coincides with, or immediately precedes, the last day of the period for which it is payable."

11. If the answer was (a), the period was the 43 weeks down to the 25th of June 2007 and the claimant had been correctly re-awarded her income support for July and August in the first place; if the answer was (b), the period was the 52 weeks including those months and that award had been correctly taken away by the revised decision under appeal. Which of the two it was, and thus whether there really had been an error of law in the award to justify use of the revising power to take it away, depended on whether the facts proved at the tribunal established the claimant's social work bursary grant payments to have been "payable for" the summer vacation months as well as the period of study ending on 25 June 2007, rather than "attributable to" that period in the same way as the similarly-spaced student loan instalments.
12. Given that according to the Secretary of State's own submission to the tribunal the decision under appeal was one to revise for error of law an existing award of income support on the basis of a "reassessment" undertaken only on 21 August 2007 (that is more than a month after the making of the award), and that the only basis put forward for the revision was the failure of the award to give effect to the Secretary of State's own understanding of the law as set out in his department's guidance notes for decisionmakers about how these social work bursaries fell to be treated, it is I think surprising that the Secretary of State did nothing more to sustain his case before the tribunal than to refer to the terms of this internal guidance of his own creation. His submission asserted simply (at page 4) that under regulation 62 "departmental instruction is that the bursary is to be attributed over 52 weeks" as if that concluded the matter.
13. In particular, his department provided no evidence or information of any kind to show the basis on which social work bursaries of this sort were in fact assessed or attributable, beyond confirming that "this is a non-income assessed grant which is paid as an incentive to train" and that it was payable in three termly instalments. It thus produced nothing to rebut the inference from that method of payment, or to show how the facts brought such a bursary within paragraph (b), and not paragraph (a), of regulation 62(3) so as justify having revised the claimant's award of income support as mistaken in law. It chose not even to attend the tribunal and made no effort to address the evidence and clearly argued written contentions produced on behalf of the claimant, to show that her period of study ended with the summer term, and that the bursary payments were termly like those of the student loan, so that like the loan but unlike for example NHS bursaries which were paid in twelve monthly instalments for the whole year, it could fairly be taken as attributable to the period of study and not the summer vacation months as well. The department's case at the tribunal remained the simple assertion that the award of benefit from 27 June made on 12 July 2007 was inconsistent with the view taken in its own guidance notes.
14. As the written submission on behalf of the claimant by Mr A Bairstow of the Hallam Union Advice Centre (at page 25, supplied in advance of the hearing) put it:

"Social Work students receive most of their funding from the Department of Innovation, Universities and Skills (DUIS) – paid under The Education (Student Support) Regulations 2007 to support them during their period of study. This funding is paid in three termly instalments (September, January and April) and is apportioned equally for Income Support purposes from the first benefit week in September to the last benefit week in June. This is not in dispute.

The Social Work bursary is paid in exactly the same way as DUIS funding and is intended to cover the same period of study. It is our understanding therefore that it should be taken into account for Income Support purposes in the same way – apportioned over 43 weeks and not 52.

NHS Students, who study in both the academic year AND the summer vacation, receive a NHS Bursary in 12 monthly instalments to cover this extended period of study. We believe the DMG has confused these two distinct groups of students as both receive funding from the NHS.

NHS degree students receive their monthly bursary from the NHS Grants Unit.

Social Work degree students receive their Social Work Bursary from the NHS Business Services Authority.

The DWP has failed to explain why they could not accept our argument that the period of study for the Social Work Bursary should be 43 weeks instead of 52 weeks – other than that the DMG instructs them to."

(The "DMG" is the departmental guidance document – the Decision Makers' Guide - and as already noted the social work bursaries for 2006-07 were in fact paid by the GSCC though funded by the Department of Health, but that makes no difference to the point.)

15. Those arguments were in substance accepted by the tribunal which found that the claimant's period of study, and for practical purposes her academic year, for 2006-07 had come to an end on 25 June 2007. The chairman held that the social work bursary, being paid in exactly the same way as the maintenance loan in three termly instalments, was to be taken into account for that period only and that as he summarised it:

"20. Although the DWP guidance states that the Social Work Bursary covers 52 weeks, its method of payment clearly indicates that it covers the academic year only (43 weeks) thus the period of study should be assessed as 43 weeks rather than 52.

21. Grant income should only be taken into account as income over 52 weeks of the year if it is payable over this period, such as the NHS Bursary which (unlike the Social Work Bursary) is paid in 12 monthly instalments to cover the whole year.

22. The tribunal agrees and the appeal succeeds."

Accordingly the claimant's entitlement to income support was to be recalculated from 27 June 2007 without any part of the social work bursary being apportioned as her income from that date: see the decision and reasons at pages 32 and 37 to 40.

16. The Secretary of State appeals, with the leave of a different tribunal chairman, against that decision on the ground that the conclusion was not supported by the evidence, and the bursary ought to have been apportioned over a full 52-week period under regulation 62(3)(b). The only real argument put forward in support of this in the original notices of appeal at pages 44 and 63 was that the tribunal's decision was arguably inconsistent, not with the evidence that had actually been before it, but with further material the Secretary of State obtained and submitted for the first time only after the decision had been given, in the form of a page downloaded from a Department of Health website: see pages 33 to 36. That page appeared to give a general summary description of the social work bursary scheme as in force and administered by the Department of Health for the academic year 2008-09: not, be it noted, that of the GSCC for 2006-07 which was the relevant one for the claimant's appeal. It did indeed include a reference to the basic grant for full-time students being "for a 52 week period" (page 35) but was rightly ignored by the tribunal chairman in giving his statement of reasons since whatever value it might have had as evidence, it was not put before him at the hearing or before he gave his decision on 9 June 2008.
17. The Secretary of State's reliance on this material as supporting his grounds of appeal was completely misplaced and I would not myself have granted leave to appeal on such a point. The assertion in the notice of appeal at page 63 that "The evidence before [the tribunal] clearly showed that the period covered by the bursary was 52 weeks" was a simple and obvious misrepresentation of the actual facts. No evidence of any kind to that effect had been produced to the tribunal at the proper time before the decision was made.
18. The grounds relied on have however been refined in the course of this appeal, and as restated in the submission of Mr M Ford on the Secretary of State's behalf dated 17 March 2009 at pages 84 to 86 they are now that insufficient findings of fact were made by the tribunal on which to base its decision to attribute the claimant's bursary payments for the 2006-07 academic year to her 43-week period of study only, and in particular the fact that they were paid in three instalments in the same way as her maintenance loan was an insufficient ground to base the conclusion that they should be apportioned in the same way.
19. To assist me in deciding what decision to give if that of the tribunal did have to be set aside, Mr Ford at my direction helpfully obtained and annexed to his submission a copy of the "application pack" issued by the GSCC to students who had been considering applying for social work bursaries for the academic year 2006-07. The guidance notes incorporated in that document (pages 87 to 98) provide what appears to be the only contemporaneous evidence now available of the terms of the scheme for that year. The first page explains that:

"The social work bursary, administered by the General Social Care Council (GSCC), was introduced by the Department of Health (who fund and set policy for the bursary) as an incentive to train in social work. The bursary package is non-income assessed.

Unlike funding from Student Finance Direct, which is intended to assist with the cost of living, the bursary grant can be used towards study-related expenses and/or for any legal purpose you deem appropriate.

The bursary is administered under the Care Standards Act, which is the legislation authorising the GSCC to distribute public funds within the context of the bursary. The bursary scheme also adopts certain elements of the Education (Student Support) Regulations 2006. However, the scheme is not legally bound by these Regulations.

An application must be submitted each year."

20. Later pages explained that as part of the application process students were required to apply to their local authority for assessment of their eligibility for funding, even if they were not intending to take out a student loan. The bursary grant would be paid in three equal instalments, the first normally within eight weeks of course enrolment in the Autumn of 2006, the second at the start of January 2007 and the third normally in April. For a student such as the claimant subject to variable tuition fees and studying full-time at a university outside London, page 94 specified the grant rate offered as "Up to £4,575 for a 52-week period." Should the student receive an overpayment, for example as a result of having to withdraw from the course or some other change of circumstances, the guidance notes and application form made clear that a proportion of the grant might have to be paid back. On page 97 the way this was to be calculated was stated as follows:

"An overpayment of the bursary is calculated by dividing the bursary awarded by 365 days. This figure is then multiplied by the number of days you were in attendance. This figure is then subtracted from any bursary payments received. The difference is the overpayment due."

21. There can be no doubt that if this material had been obtained and put in evidence before the tribunal at or before the hearing of the claimant's appeal on 9 June 2008, it could have provided the basis for an entirely proper finding of fact that the claimant's social work bursary for the year 2006-07 was "attributable to" and "payable for" the entire 52-week (or 365-day) period identified by the terms of the scheme itself in the passages just quoted, rebutting any inference from the payment arrangements. If such a finding had been made, then it would of course have taken the apportionment out of paragraph (a), and into paragraph (b), of regulation 62(3). But all that is hypothetical here: the question I have to answer on this appeal is not what might have been the decision if better evidence had been before the tribunal, still less what decision I might now give if the matter were now before me afresh. It is, as Mr J Muir of the Hallam Union Advice Centre submits in his observations on behalf of the claimant dated 22 April 2009 at page 114, whether there was anything wrong in the tribunal's decision being based as it was on the actual evidence made available to it at the time.
22. Again, the question is not whether there might have been some other course open to the tribunal than the one it took: perhaps insisting on further inquiries of the kind I myself directed, or adjourning to insist on proper representation and attendance from the Secretary of State so that the whole matter could be gone into more thoroughly. No doubt it might have been better if something of that sort had happened, though it hardly lies in the mouth of the Secretary of State to say so when his department failed to take its proper part in the proceedings at the time. But all I have to decide is the stricter question of whether there was any error of law in the chairman having proceeded as he did.
23. I have not been persuaded this was the case, and I agree with the submission on behalf of the claimant that it was neither perverse nor irrational for the chairman to have accepted such evidence as was put before him and to have decided the case on that basis. In the absence of any representation or countervailing factual evidence from the Secretary of State, he was entitled to proceed on the basis that the department had submitted all relevant evidence it considered should be taken into account. In my judgment he was further entitled to accept the evidence and contentions on behalf of the claimant as sufficient to draw the inference that the two forms of financial support she received, being paid similarly, were attributable to the same period. (There is no suggestion these contentions were made otherwise than in good faith, or that anything was knowingly withheld by the claimant, any more than by the Secretary of State.) The chairman's reasons for finding that the method and intervals of payment of the social work bursary showed it to be paid and attributable in the same way and over the same period as the student loan, in contradistinction to the kind of grant specified in regulation 62(3A) which had to be apportioned over a full benefit year, (expressly noted in the course of the hearing: pages 27, 31) are clearly and adequately explained in the statement issued. In my judgment there was no error of law involved in the decision he made.
24. This appeal is therefore dismissed and the claimant's entitlement to her income support for July and August 2007 under the tribunal's decision of 9 June 2008 confirmed accordingly. As will be apparent however, that result depends on the somewhat inadequate way the facts of this particular case were put in front of this tribunal on behalf of the Secretary of State, and his failure to demonstrate that they brought the case within the power to revise his own previous award for error of law. It is no real indication of the decision that would or should be reached in relation to similar social work bursaries in the case of other students, or for that matter this particular student on any later claim in another year, on the basis of more complete evidence in other claims or appeals.

P L Howell

Judge of the Upper Tribunal

24 June 2009

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