Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 9 (AAC) (15 January 2009)

 


Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the Fox Court appeal tribunal under reference 242/07/09084, held on 6 February 2008, did not involve the making of an error on a point of law.

Reasons for Decision

A. The issue

1. The issue in this case is whether a student who has to resit his university examinations is entitled to a jobseeker's allowance for a period when he is not required to attend the college. Ultimately, at root this is an issue about budgets. Is a person in the claimant's circumstances entitled to be funded from the social security budget or must any support be provided through the education budget?
2. I need to consider the issue under the jobseeker's allowance legislation and the Human Rights Act 1998.

B. The facts

3. The claimant was born in 1974. In September 2006, he began a course of study for a degree of LLB at Queen Mary, University of London. The course was for three years of full-time study, with an expected date of completion in 2009. He failed to pass his first year examinations and was allowed to resit them in August 2007. He again failed to satisfy his examiners and was allowed to retake the year in 2008. The result was to extend the period of his course by one year, so that it now had an expected date of completion in 2010.
4. He sought employment and claimed a jobseeker's allowance. The date of claim for the purposes of this appeal was 2 July 2007. The decision-maker refused his claim on the ground that he was a full-time student in a period of study.

C. The legislation

5. Jobseeker's allowance was created by the Jobseekers Act 1995. Section 1 provides:

'(1) An allowance, to be known as a jobseeker's allowance, shall be payable in accordance with the provisions of this Act.

(2) Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he-

(a) is available for employment; …'

6. Section 6 deals with availability for employment:

'(4) Regulations may prescribe circumstances in which, for the purposes of this Act, a person is or is not to be treated as available for employment.'

7. The Jobseeker's Allowance Regulation 1996 are made in part under that authority. Regulation 15 provides:

'A person shall not be regarded as available for employment in the following circumstances:

(a) if he is a full-time student during the period of study …'

'Full-time student' is defined by regulation 1(3):

'"full-time student" means a person … who is-

…

(b) aged 19 or over but under pensionable age and-

(i) attending a full-time course of study …'

'Period of study' is defined by regulation 4:

'"period of study" means-

(a) the period during which the student is regarded as attending or undertaking the course of study; …'

And provision is made in respect of 'attending or undertaking a course of study' by regulation 1(3A):

'(3A) For the purposes of the definition of "full-time student" in paragraph (3) but subject to paragraph (3D), a person shall be regarded as attending or, as the case may be, undertaking a course of study …

(b) … throughout the period beginning on the date on which he starts attending or undertaking the course and ending on the last day of the course or on such earlier date (if any) as he finally abandons it or is dismissed from it.'

D. Applying the legislation to the facts

8. Applying that chain of definitions to the facts, produces this result. The claimant was only entitled to a jobseeker's allowance if he was available for work. He began a full-time course and became a full-time student. He did not abandon the course. Nor was he dismissed from it. He was, therefore, in law regarded as still attending the course while he was waiting to resit his examinations. As a result, he was in a period of study. And, as a full-time student in a period of study, he was not regarded as being available for work and could not be entitled to a jobseeker's allowance.

E. Is the legislation open to another interpretation?

9. No, it is not.
10. The claimant has argued that the interpretation of regulation 15(a) that produces the result I have just reached produces an inherent injustice. The issue of interpretation is: what does the legislation mean? I can see only one meaning for the legislation and one way to apply it to the facts of this case. The claimant's appeal to inherent justice is a challenge to the policy underlying the legislation. That policy is to exclude students from entitlement to jobseeker's allowance and to leave their public funding, if there is to be any, to the education budget rather than the social security budget. The domestic principles of interpretation do not allow me to pass judgment on that policy and, having found it wanting (if it is), to substitute a version of the legislation that reflects a better policy.

F. The Human Rights Act 1998

11. The claimant has argued that the legislation discriminates against him as a student who is not required to attend his college. He relies on Article 14 of, and Article 1 of Protocol 1 to, the European Convention on Human Rights:

'ARTICLE 14

PROHIBITION OF DISCRIMINATION

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'

'THE FIRST PROTOCOL

ARTICLE 1

PROTECTION OF PROPERTY

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.'

G. Analysis

12. The Secretary of State has made three arguments on the human rights issue. For convenience, I will follow the order of those arguments in setting out my reasons.

Within the scope of Article 1, Protocol 1

13. First, the Secretary of State has conceded that this case is within the scope of Article 1, Protocol 1, following the decision of the House of Lords in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63. I accept that concession. It is obviously correct.

Personal characteristic and status

14. Second, the Secretary of State has argued that being a student is not a personal characteristic and, therefore, not an 'other status' for the purpose of Article 14. This argument relies on Lord Neuberger's remark in RJM that the test 'generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him' (paragraph 45). But if it is a personal characteristic, it is not one of those suspect grounds, identified by Lord Hoffmann in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 at paragraphs 15-17, which require particularly intense scrutiny.
15. In view of my decision on the Secretary of State's third argument, I do not need to decide this. However, my view is that being a student is a status. Despite what Lord Neuberger said, the House of Lords held that homelessness was a personal characteristic and that is surely something that happens to a person rather than what the person is. I do, though, accept that being a student is not within the suspect grounds listed by Lord Hoffmann, so that intense scrutiny is not required.
16. The claimant has argued that Lord Neuberger's analysis fails to take account of a status imposed by law, such as the claimant's status as a student even while he is not required to attend his college. That is an interesting argument, but I do not need to deal with it.

Justification

17. Third, the Secretary of State has argued the legislation pursues a legitimate aim and is proportionate:

'9. … The Government takes the view 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. In the case of [this claimant], the letter from Student Finance Direct dated 27 November 2007 (at page 59 of the papers) provides "your application for financial help has been progressed to the equivalent of a student on out of college on a 'Placement'. The rate of loans will reflect this". [The claimant] is therefore being support by the student loan/grant system.'

18. I accept that argument. The claimant has said that his financial award was made on a discretionary basis only. However, the fact remains that he did receive financial support. Over the years, students have gradually been excluded from the benefit system and left to such financial provision as is available to them under the education system. That has involved a decision on the way that public funds are best spent and the particular budget from which they are allocated. Those are properly matters for the executive to decide. The claimant has not presented any argument that is sufficient to show that the decision to deploy public funds in a way that excludes him from receiving jobseeker's allowance was so far outside what was accepted that it amounted to a breach of his Convention right. His argument, which he has developed at length, is that the system is unfair and produces hardship for students who have to resit a year. In support, he has cited remarks made by the judges of the Court of Appeal in Secretary of State for Work and Pensions v Walter, reported as R(JSA) 3/02. The judges did make those remarks. However, Walter was decided under EC law, not the Convention, and the court nonetheless decided that there had been no discrimination.
19. The Secretary of State has further argued (in paragraph 10 at page 165) that jobseeker's allowance is for those who are unemployed and available for and seeking full-time work, not for those who wish to be full-time students. I do not entirely follow that argument. The issue under jobseeker's allowance is whether the claimant is available for work at that time, not for a particular period in the future. It may well be that students resitting a year should be devoting time to study rather than work, but the reality often is that they work in order to support themselves and that their study is largely confined to revising when the examinations are approaching. This is not surprising; an external resit shows that the college believed that a fresh year of supervised study was not required.
20. Finally, the Secretary of State has argued that students are not in an analogous position to jobseekers. I accept that as a general point. However, the issue in this case is whether a student resitting a year who is not required to attend college should be treated differently from a student is required to be in attendance. This is the point made by the claimant. It has not been overlooked by the Government, as the wording of the jobseeker's allowance legislation shows. The Government has taken the policy decision that the person remains a student and that studying for the resitting of examinations should be supported, if at all, from the education budget. That was a legitimate choice in human rights law.

H. Disposal

21. I dismiss the appeal.

Signed on original on 15 January 2009

Edward Jacobs Upper Tribunal Judge