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[2009] UKUT 46 (AAC) (09 March 2009)
Main Category: Other current benefits

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEAL CHAMBER

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Liverpool appeal tribunal dated 9 October 2007 involved an error of law, for the reason given below, and I set it aside. The case is remitted to a differently constituted First-tier Tribunal within the Social Entitlement Chamber for reconsideration in accordance with the directions in paragraph 50 below and any further directions that may be given by a district tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

REASONS

As from 3 November 2008, cases which were pending before a Social Security Commissioner are to be dealt with by the Administrative Appeals Tribunal of the new Upper Tribunal.

The issues and relevant legislation

This case raises fundamental questions about the meaning of regulation 5(1) of the Social Security (Invalid Care Allowance) Regulations 1976 (the ICA Regulations), setting out when a claimant for carer's allowance (CA) is to be treated as receiving full-time education for the purposes of section 70(3) of the Social Security Contributions and Benefits Act 1992 and so not entitled to the allowance. It also raises difficult questions about what exactly was decided about the interpretation of those provisions by the Court of Appeal of Northern Ireland (Wright-Turner v Department for Social Development [2002] NICA 2, reported as appendix 1 to R1/02 (ICA)) and the Court of Appeal of England and Wales (Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641, reported as R(G) 2/02). I have concluded that what those cases in fact stand for is not what was put forward on behalf of the Secretary of State or how I would have construed the legislation for myself. However, despite the scope for misunderstanding created by the way the reasoning is expressed in the two decisions, I am bound to follow and apply the legal principles laid down in both decisions. It is highly unsatisfactory that there has been no clarifying amendment to regulation 5 since the strong criticism of the drafting in those decisions. In my view, regulation 5 is entirely unfit for purpose as a means of deciding when study on an undergraduate degree course is fairly compatible with continuing entitlement to CA. I hope that there will be a complete reconsideration as part of the review of carers' benefits that I understand is going on.

Section 70(3) of the Social Security Contributions and Benefits Act 1992 provides that a person is not to be entitled to CA if she is "receiving full-time education". Section 70(8) empowers the making of regulations prescribing "the circumstances in which a person is or is not to be treated for the purposes of this section ... as receiving full-time education". Regulation 5 of the ICA Regulations provides:

"(1) For the purposes of section 70(3) of the Contributions and Benefits Act, a person shall be treated as receiving full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for twenty-one hours or more a week.

(2) In calculating the hours of attendance under paragraph (1) of this regulation--

(a) there shall be included the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course; and

(b) there shall be excluded any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.

(3) In determining the duration of a period of full-time education under paragraph (1) of this regulation, a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it."

An oral hearing of the appeal to the Commissioner, at the request of the claimant's representative, Ms Ruth Knox of Raise Benefits Advice Team, was granted by Mr Commissioner Williams. The hearing took place before me at Manchester Civil Justice Centre on 24 September 2008. The claimant did not attend but was represented by Ms Knox. The Secretary of State was represented by Mrs Cecilia Parker-Aranha of counsel, instructed by the Office of the Solicitor to the Department for Work and Pensions. At the hearing I disclosed my past employment at UK universities, with a continuing honorary appointment (as had Mr Commissioner Williams when dealing with the case at an earlier stage). No objection was raised on behalf of either party. I am grateful to both representatives for their submissions, but I needed to give both parties the opportunity to make further submissions about the calculation of hours of attendance if I adopted a particular principle of law. Those submissions were completed on 11 December 2008, although they devoted a lot of time to arguments that I should not adopt the principle suggested.

The factual background and the appeal to the appeal tribunal

The claimant had been entitled to CA and its predecessor, invalid care allowance (ICA), since 1990, in respect of caring for her daughter. In December 2006 she notified the CA Unit by telephone that she had started what she apparently described as a full-time course at Liverpool Hope University, with 12½ hours per week of supervised study. The CA Unit suspended payment of benefit and sent a questionnaire to the University. An apparently authorised officer within the Registrar & Secretary's Office replied on 5 January 2007, confirming that the claimant had started a BA Combined Honours degree in English Language and English Literature on 25 September 2006. The course was expected to end on 31 July 2009. Question 5 was as follows:

"How many hours a week is [the claimant] expected to spend on work that is included in the curriculum of the course at school, college or university? (By work, we mean supervised study at school, college, university or similar educational establishment and includes time spent on work done at home or elsewhere set by a tutor and is part of the course.)"

The officer wrote in "1,080 hours per annum". The answer to the question whether the institution regarded the claimant as being in full-time education was yes.

The decision was then given on 8 January 2007 superseding the operative decision awarding CA on the ground of relevant change of circumstances. The new decision was that the claimant was not entitled to CA from and including 25 September 2006. She appealed, saying that she was only doing 12 hours in the University, which would reduce in September when she would be going part-time. She set out her timetable of 12 hours and said that four hours on a Wednesday would cease in May. She emphasised that the care that she gave to her daughter had not been affected. The Secretary of State's written submission to the appeal tribunal concentrated on showing that the case-law required that supervised study, to be taken into account in hours of attendance, included set work done by a student in her own time, whether on the institution's premises or not, and that the primary focus should be on the standard amount of time the institution's authorities expect students to devote to contact hours and supervised study to complete the course. Then 1080 hours was averaged over 39 weeks for the academic year to produce a figure of 27.69 hours a week.

Ms Knox became involved and put in a detailed and carefully thought-out written submission on 8 August 2007. She argued in particular that the 1,080 hours stated by the University on the form of 5 January 2007 was not a reliable figure. First, although the question was restricted to supervised study, it was not certain that the University's expectations excluded unsupervised study or wider reading. Second, the expectation would be geared to a conscientious student completing the course to a creditable standard rather than the minimum necessary to scrape through. Then Ms Knox examined the claimant's 12 contact hours in the first term, suggesting that some did not require much preparatory reading and that the claimant had already read some of the books on the literature course. She had five 1500-word assignments to complete during the year. Ms Knox submitted that the contact hours, the preparation as above and the assignments constituted the whole of the claimant's supervised study and came to less than 21 hours a week. The submission continued:

"Given that [the claimant] felt that she had covered a lot of the background reading for the literature she calculated that she would be able to complete her study - not to an ideal standard, but to an adequate one - by an additional eight hours per week, giving a total of 20 hours per week.

In fact, this caused problems with her course. Her caring responsibilities meant that she did not manage all of the reading for the course and would at best have just managed to pass. In the event, a crisis arose in April which added to her caring responsibilities (the death of a close friend of her daughter). [The claimant] was unable to sit her examinations. She has tried to use the summer vacation to catch up on the study she should have done during the term and will resit this month.

In R(G) 2/02 paragraph 22 it is suggested that for a student who attends for less than 21 hours per week `his successful completion of the course may be imperilled'. In fact, this is exactly what has happened as a result of [the claimant's] caring responsibilities."

Following a counter-submission from the Secretary of State and an adjournment, Ms Knox supplied further details of the curriculum and requirements for both the English literature and English language components of the course in a submission dated 9 October 2007.

The appeal tribunal's decision

The claimant attended the hearing on 9 October 2007 with Ms Knox and re-emphasised that she had over-estimated her ability to study full-time while caring for her daughter and had under-estimated the amount of help she would get from the University. The appeal tribunal disallowed her appeal. The statement of reasons spent a good deal of space on what was thought (wrongly, it seems to me) to be a dispute between the Secretary of State and Ms Knox about what counted as supervised study and whether the University's answer of 1080 hours as the expected input included unsupervised study. Having concluded that it did not, the statement continued:

"The course was undoubtedly a fulltime course as accepted by the appellant.

Based upon the information provided by the university this course could not be considered part-time.

Tribunal concluded that the work done whilst actually attending university could not be taken in isolation as clearly with regard to this course, a period home study is required which forms part of the course and although done at home falls into the category of supervised work."

The appeal to the Commissioner/Upper Tribunal

The claimant was granted leave to appeal by the regional chairman of appeal tribunals. The primary ground put forward by Ms Knox had been that the appeal tribunal had treated the evidence from the University as conclusive, contrary to authoritative case-law. When giving case management directions on the appeal Mr Commissioner Williams suggested that the appeal tribunal had failed to engage with the true dispute between the parties about the proper interpretation of regulation 5(1) of the ICA Regulations, set out a provisional view of the law and invited comments from the parties.

Ms Knox submitted that a subjective view (adopting the terms used by Mr Commissioner Williams) of regulation 5(1) should be taken, in which case the claimant did not actually undertake 21 hours study, but that even on an objective view the standard expectations of an average undergraduate did not amount to 21 hours. I shall come back to her detailed calculations of hours and the further evidence of curriculum and set reading attached. The submission on behalf of the Secretary of State dated 28 April 2008 was that regulation 5(1) provides that where the number of hours of activities listed in regulation 5(2), including supervised study, expected of a claimant by an institution exceeds 21 hours a week the claimant will be considered to be in full-time education. There was reliance on the decision of Mr Commissioner Bano in CG/3189/2004, where it was said that that was the focus of regulation 5(1) and the starting-point in its application. It was submitted that it was therefore irrelevant if the claimant here devoted less than 21 hours a week to her course, so that the appeal tribunal had reached the only conclusion legally open to it. I need not go through the reinforcing submissions made on each side at the oral hearing. From now on I shall refer to the time referable to activities listed in regulation 5(2) as "regulation 5(2) hours".

Discussion: regulation 5(1) of the ICA Regulations

If I were able to approach regulation 5(1) and section 70(3) of the Social Security Contributions and Benefits Act 1992 free of the burden of the authorities that I discuss below, I would take the following very simple view. Section 70(8) allows regulations to prescribe circumstances in which a person is or is not to be treated as receiving full-time education for the purposes of section 70(3). Regulation 5(1) merely prescribes circumstances in which a person is to be treated as receiving full-time education, not the circumstances in which a person is not to be so treated. Therefore, the 21-hour rule provides a convenient means for determining entitlement to CA in some cases, but a person may still be found to be receiving full-time education although not attending a course for 21 hours or more. Finally, and crucially, a person attending a conventional three-year undergraduate degree course that is regarded as a full-time course by the institution concerned is receiving full-time education regardless of how many regulation 5(2) hours are expected to be or actually are devoted to the course. That appears to have been the view taken by the appeal tribunal of 9 October 2007, as it appears also to have been the view of the Chief Commissioner for Northern Ireland, Judge Martin, at an early stage of Wright-Turner (see paragraph 12 of C2/97 (ICA), Appendix 2 to R1/02 (ICA)). In addition, although I am not concerned with whether the rule expressed in section 70(3) is sensible or fair in the context of the basic qualification for CA, that view would have the merit that anyone in receipt of CA who started such a course would be able to know exactly where they stood (see Chadwick LJ in paragraph 38 of Flemming, R(G) 2/02).

That simple view is one that as a matter of law cannot by adopted at the level of the Upper Tribunal or below. It was expressly rejected by Carswell LCJ in the Northern Ireland Court of Appeal in Wright-Turner, Appendix 1 to R1/02 (ICA):

"Notwithstanding the wording of the regulation, which has the appearance of a deeming provision, it appears that this definition was intended to be comprehensive. It was common case that in order to be regarded as being in receipt of full-time education the appellant had to be brought within the definition contained in Regulation 5."

Although that particular passage, rather than the eight propositions mentioned below, was not expressly approved by the Court of Appeal in Flemming, the whole approach in the latter case was implicitly based on an acceptance of its correctness. There would have been no point to most of the discussion in the judgments there if my simple view had been regarded as correct. That view would have provided a complete answer against Ms Flemming's case, without all the doubts about how to take account of the lazy or brilliant student who put in low hours of work. For the same reasons, the grammatically unlikely view that in regulation 5(1) "for 21 hours or more a week" refers to the course and not to the student's attendance of the course cannot be accepted. Social Security Commissioners, and therefore now the Administrative Appeals Chamber of the Upper Tribunal, are bound to follow the approach of the Northern Ireland Court of Appeal as well as that of the English Court of Appeal on questions of legal principle that were necessary to the decision in question (Tribunal of Commissioners' decisions R(SB) 1/90, paragraph 15, and R(IB) 4/04, paragraphs 29 and 30).

The simple view in paragraph 12 above not being available, it is necessary to examine with great care what legal principles were actually adopted in Wright-Turner and Flemming. The existence of those authorities means that I do not need to go back to the earlier Commissioners' decisions discussed in those cases.

Wright-Turner

In Wright-Turner, Carswell LCJ expressed the court's conclusions in a series of succinct propositions, which he hoped would provide guidance to appeal tribunals and Commissioners:

"1. Section 70(3) disentitles from receipt of an allowance a person who is receiving full-time education. If Regulation 5 is interpreted in a way which excludes from its ambit the large majority of university students, who on any ordinary classification are regarded as full-time students, then it is unlikely that the interpretation is correct.

2. The words `attends' and `supervised' are ordinary English words, which take their meaning from the context.

3. That context varies, depending on the educational level of the establishment at which the claimant is receiving education.

4. Attending a course of education at a university means engaging in the academic activities required of those who are enrolled in the course.

5. One component of a course of education at a university is study of the subject matter of the course, which may be carried on by the students at times and places of their own choosing.

6. Where that study is in discharge of the requirements of the course, as prescribed by those who conduct it, it constitutes supervised study within the meaning of Regulation 5. It does not have to be carried out on university premises or in the physical presence of a supervisor.

7. Ascertainment of the hours of attendance at a course of education is a question of fact, to be determined by the adjudicating officer or tribunal. In doing so they will have regard to the university's requirements of attendance at the formal contacts specified in Regulation 5(2)(a), any estimate furnished by the university authorities of the supervised study time required to complete the course, the claimant's own testimony and any other source of material evidence.

8. The tribunal of fact should ordinarily focus primarily on the standard amount of time which the university authorities expect students to devote to contact hours and supervised study in order to complete the course. Some students, blessed with the ability to work more quickly than average, will get through the prescribed reading in less than the notionally allotted time, while some, less fortunate or perhaps more thorough and conscientious, will take longer. It is notorious that others will do a minimum of work during the academic year and seek to pass their examinations with a last-minute burst of effort, leaving the average hours worked over the year materially below the level expected by the university authorities."

I have no difficulty with propositions 1 to 7. They resolve what differences of opinion had previously existed about where to draw the line between supervised and unsupervised study in the context of a degree-level course. It was to that issue that in my view proposition 1 was primarily directed. If the propositions had stopped at 7 it would in my view have been clear that the fundamental test was the number of hours actually devoted by the claimant to contact hours, supervised study and any other activities covered by regulation 5(2). If the University's estimate of the supervised study time required in addition to the prescribed contact hours to complete the course was to be conclusive, then the other sources of evidence mentioned in proposition 7 could not have been relevant. I do have difficulty with proposition 8. With the greatest of respect to the distinguished members of the Northern Ireland Court of Appeal, it is not really a proposition at all beyond the first sentence, merely a raising of questions and difficulties. Even the first sentence is highly qualified ("ordinarily" and "primarily"), and then only uses the terms of the focus of attention. It does not seek as a matter of law to replace the test in proposition 7 with a different test. The furthest that the first sentence of proposition 8 could be said to go is to give some sort of informal presumptive effect to the University's estimate, in relation to the factual issue of the claimant's actual hours of attendance.

There is further support for that position in Carswell LCJ's statement that the decision of the Chief Commissioner in C2/97 (ICA), applied by Mrs Commissioner Brown in the decision under appeal to the Northern Ireland Court of Appeal, was in accordance with the principles set out. To understand that statement, the tortuous course of the proceedings in Wright-Turner must be examined.

The claimant won her first appeal to an appeal tribunal against the disallowance of her claim for what was then still ICA while she was engaged on a degree course at Queen's University, Belfast. The appeal tribunal found that she spent nine hours per week in lectures and tutorials and four hours in reading specifically for tutorials, while the remainder of her study was unsupervised, and so concluded that she was attending for less than 21 hours. The Chief Commissioner in C2/97 (ICA), Appendix 2 to R1/02 (ICA), allowed the adjudication officer's appeal against that decision, holding that the appeal tribunal had applied an incorrect test as to when private study at university level was supervised or unsupervised. He referred the case back to a new appeal tribunal for rehearing and continued, in paragraph 19:

"Not only will that Tribunal be required to decide whether particular work is `supervised' or `unsupervised' but it should go through each item in regulation 5(2), both (a) and (b), to decide what the actual hours of attendance at the education course are, bearing in mind the burden of proof imposed on the claimant to establish her case. That is not an easy task, as the amount of time spent by individual students in actual study will vary, one to another, even when students are studying the same course."

On the rehearing, the second appeal tribunal disallowed the claimant's appeal. It found that the claimant spent about 24 hours a week in instruction and supervised study as defined by the Chief Commissioner. Mrs Commissioner Brown then disallowed the claimant's appeal from the second appeal tribunal, concluding that it had properly followed and applied the Chief Commissioner's directions and, contrary to the submission for the claimant, had taken into account her personal circumstances and the demands of the course as indicated by the University. It was her decision that was before the Northern Ireland Court of Appeal. At that stage, the argument for the claimant was that study was only supervised when carried out on the premises of the institution concerned.

Thus, the case before the Court of Appeal turned on the meaning of supervised and unsupervised study. If the second appeal tribunal had not erred in law on that issue, its findings of fact that the claimant actually attended for about 24 hours could not be undermined. So the result would have been the same if the crucial rule was based on hours of actual attendance or on the institution's expectations. But that was not the state of the case when it was before the Chief Commissioner. His statement of the issues for the second appeal tribunal could not have been clearer in making the test the actual hours of attendance, although with a recognition that the existence of other evidence might sometimes make it difficult for a claimant to show that those hours were as restricted as asserted.

Flemming

The claimant here was in receipt of ICA in respect of caring for her mother when she started a degree course at the University of Glamorgan. A decision was given removing entitlement because she was receiving full-time education. The Court of Appeal gave no more details of the course or of how many hours the claimant said she actually devoted to it. That was because it was concerned with the decision of Mr Commissioner Jacobs in CG/5519/1999 allowing the claimant's appeal against the decision of an appeal tribunal confirming the disentitlement decision and referring the case for rehearing by a new appeal tribunal. The claimant's challenge before the Court of Appeal was to the content of the Commissioner's directions of law to the new appeal tribunal, and mainly on the question of what counted as supervised study. Thus the guidance given by the Court of Appeal was not coupled to any findings of fact, an unusual situation, as its members recognised.

I need not go through the discussion on the main issue, on which the court confirmed that supervised study is not confined to study on the institution's premises. Pill LJ gave the first judgment. He said that he approached the expression "full-time education" with some presumption that a conventional university three-year undergraduate degree course comes within that expression and drew attention to regulation 5(1)'s operation as a deeming provision, saying that what was required was attendance for 21 hours or more a week. In paragraph 21 he agreed with the eight propositions in Wright-Turner, continuing:

"I also agree that ascertainment of the hours of attendance is a question of fact to be determined by the adjudicating officer or tribunal. Evidence from the university authorities as to the amount of time they expect students to undertake to complete the course is likely to be important evidence. I agree that the `tribunal of fact should ordinarily focus primarily on it', as stated in the opening words of proposition 8 ....

22. Evidence from the student himself as to the time he spends to meet the requirements of the course is not excluded. In the latter part of proposition 8, the Court attempted to deal with the question arising from the varying abilities and conscientiousness of students of all generations. Some students on a course of education will spend more time studying than others do. A fact finding tribunal should however scrutinise with care evidence from a student who claims that he attends the course for significantly fewer hours than the university authorities expect of him. Moreover, on many courses of education it may be a foolhardy student, unless a very brilliant one, who genuinely claims that he attends, within the definition, for fewer than 21 hours a week. His successful completion of the course may be imperilled. The more structured the course, with, for example, modules, detailed course work and regular assessment, the easier it is likely to be to make the determination of fact."

Chadwick LJ gave the other substantive judgment (Longmore LJ agreed with both). He considered the approach in Wright-Turner "broadly correct" and in paragraph 38 drew particular attention to three factors identified by Carswell LJ:

"First, that study which is in discharge of the requirements of the course, as prescribed by those who conduct it, constitutes supervised study for the purposes of regulation 5. I would add that, in my view, time spent in private study which is a necessary adjunct to physical attendance at lectures and laboratory work falls within that description. Second, ascertainment of the hours for which a person attends a course of education is a question of fact, to be determined by the Secretary of State or a tribunal. Third, the tribunal of fact should have particular regard to the amount of time which those who conduct a course expect a student to devote to contact hours and supervised study in order satisfactorily to complete the course. I recognise that the `average' student is an elusive concept, that the less able but diligent student will take longer than the time expected, and that the more able (or less diligent) student will take (or devote) less than the time expected. But it is plainly desirable that a person with care responsibilities who is contemplating a course of education should know in advance whether, by attending the course, he or she will be treated as receiving full-time education. A tribunal of fact should, I think, be very slow to accept that a person expects or intends to devote - or does, in fact, devote - significantly less time to the course than those who have conduct of the course expect of him; and very slow to hold that a person who is attending a course considered by the educational establishment to be a part time course is to be treated as receiving full-time education because he devotes significantly more time than that which is expected of him."

Thus both Lords Justices put what I have above called the "informal presumptive effect" of the educational institution's evidence of the hours it expects to be devoted to a course in somewhat stronger terms than in Wright-Turner. They also attempted to put some content into that effect ("scrutinise with care" (Pill LJ) or "be very slow to accept" (Chadwick LJ) evidence from a student who claims to attend for significantly fewer hours than the institution expects). But the very way in which that was put shows that the judges were not purporting to convert the test under regulation 5(1) from one of hours of actual attendance to one of the institution's expectations. The institution's evidence is to be regarded as very strong evidence, but it is still merely evidence relevant to a different test of fact, not the test itself. If the opposite had been intended, the claimant's own evidence of time actually spent on contact hours and study could not have been regarded as relevant, as it plainly was regarded. That is not changed by Chadwick LJ's statement that it is desirable that a CA claimant contemplating a course of education should know in advance whether attendance would be treated as receipt of full-time education. That was merely a statement of desirability, and indisputable as such, not a statement of how regulation 5 was to work in all circumstances.

For those reasons, the proposition in paragraph 5 of the Secretary of State's submission of 28 April 2008, relying on Chadwick LJ's judgment in Flemming, that regulation 5(1) of the ICA Regulations provides that, where the number of regulation 5(2) hours expected of the claimant by the university exceeds 21 hours a week, the person will be considered to be in full-time education cannot be accepted. The support for that proposition by Mrs Parker-Aranha at the oral hearing and in the further written submission dated 22 October 2008 makes no difference to my view. That support can only be based on a misunderstanding of what principles of law were actually adopted in Flemming. Nor can the proposition in paragraph 8 of the submission of 28 April 2008 that "the fact that the claimant devotes less than 21 hours a week to her course is of no consequence in this case" be accepted.

Both Pill LJ and Chadwick LJ said that they considered that the substitution of a new form of regulation 5 in 1992 was not intended to effect a change in meaning. In my judgment, those statements could only have been intended to apply to the central issue of dispute raised in Flemming, of whether only physical attendance on the institution's premises counted in applying the test. As Chadwick LJ clearly showed in his extensive discussion of the original 1976 form of regulation 5, the test then was whether the Secretary of State had certified that the person was receiving full-time education by attendance at a recognised educational establishment. In 1992 there was a change from certification by the Secretary of State (not appealable to appeal tribunals) to determination as a question of fact in an appealable decision on entitlement and also, as Chadwick LJ noted in paragraph 31, a more prescriptive test in terms of attendance for 21 hours or more. There was a clear change from a test that did no more than repeat the terms of the primary legislation and add the need to attend a recognised establishment. Thus all that could possibly have been acknowledged as not changing was the approach to what counted as supervised study.

Commissioner's decision CG/3189/2004

In the light of the strong reliance on CG/3189/2004 as an authoritative exposition of the effect of Flemming in the Secretary of State's submission of 28 April 2008, I must consider that decision carefully.

The claimant there was in receipt of CA when he informed the benefit authorities that he was starting a full-time university course in October 2003, with 10 - 15 hours a week of supervised study. A course leader stated that 12 hours per week were spent in lectures and seminars and that she would expect the claimant to work at least three further hours a day at home or elsewhere. On appeal from the decision removing entitlement the claimant said that three hours a day for personal study was only a recommendation and not obligatory and that he had allocated one hour a day. He also mentioned that he had been exempted from two subjects because he already had a Master's degree, so reducing contact hours by five hours (or possibly three) per week. The appeal tribunal accepted that the claimant attended for only 16½ hours per week and allowed his appeal.

Mr Commissioner Bano allowed the Secretary of State's appeal and remitted the case to a new appeal tribunal for rehearing. He said this:

"13. It is clear from the decision of the Court of Appeal in Northern Ireland in Wright-Turner and of the Court of Appeal in Flemming that the normal starting point in determining the hours of attendance at a course of university education will be evidence from the university authorities with regard to the amount of time which the authorities expect the student to devote to contact hours and supervised study. The evidence of the claimant will be relevant if there is a dispute about those issues, but it is probably only in a very unusual case that a tribunal will prefer the evidence of a student to the evidence of the college authorities on the question of how much study a student on the course is expected to carry out. As Mrs Commissioner Heggs observed in R(SB) 41/83, evidence from the university authorities concerning the description of a course is not conclusive, but any evidence produced in rebuttal should be `weighty in content' (para 12).

14. The Court of Appeal in Flemming rejected the submission that the word `attends' in regulation 5(1) requires physical attendance at the premises of the university, holding that the expression `attends a course of education at a university' is to be construed in the sense of being enrolled on such a course (para 17). The focus of the regulation is therefore on the requirements of the course, rather than the way in which the student in fact conducts his studies. As Chadwick LJ pointed out (para 28), the phrase in regulation 5(1) is `receiving full-time education by attendance', and not `receiving education by full-time attendance', and I do not consider that a claimant can establish that he or she is a full-time student simply by showing that he or she does less work than the course requires. If a student is very able, it is also legitimate to expect the student to study for the same length of time as a less able student in order to achieve a better degree. If a student is enrolled on a course requiring contact and supervised study time in excess of 21 hours and the student falls within the normal range of abilities and entry qualifications of students for whom the course is intended, in the absence of any special circumstances, the student should in my view generally be regarded as being in receipt of full-time education.

15. There will however be cases, such as the present, in which a student claims to be exempted from certain requirements of the course, for example, because the student has an overlapping qualification or has previously completed a relevant course of study. There is no doubt that regulation 5 in its present form allows such circumstances to be taken into account, and in such cases the starting point of the inquiry will be to establish the number of hours of contact time and supervised study expected of the particular student. In most cases there will be some form of documentary evidence from the university of an exemption or other relevant dispensation, and decision makers should be cautious in accepting uncorroborated evidence from a student that he or she is not expected to satisfy the normal requirements of the course."