IN THE UPPER TRIBUNAL Case No  CG/61/2009

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant: Mr S Cooper, Solicitor

For the Respondent: Mr D Hough, Walsall Social Care

Decision:  The appeal is allowed.  The decision of the appeal tribunal sitting at Wolverhampton on 8 July 2008 under reference 053/08/01404 involved the making of an error of law and is set aside.  Acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, I re-make the decision in  terms that the DWP’s decision of 11 February 2008 is upheld.  The claimant is not entitled to carer's allowance from 8 October 2007, on the grounds that she was then in full-time education.

.

REASONS FOR DECISION

1. The claimant, aged 20 at the date of the original decision, was at all material times engaged in providing care for her father, and also to some extent for her mother.  Her father's disabilities and the amount of care provided by the claimant were such that she was potentially eligible for carer's allowance.

2. On 17 September 2007 she embarked upon a BA Honours Degree in Early Childhood Studies and Education Studies at the University of Wolverhampton.  The course was expected to finish in Summer 2010.

3. Before starting her degree, the claimant had obtained an Edexcel Level 3 BTEC National Diploma in Early Years.  This was a two year course, under the auspices of Walsall College, which the claimant completed with the triple grade of Distinction-Distinction-Merit.  This course was considered the equivalent to A levels and its successful completion fulfilled the entry requirements for the degree course which the claimant subsequently undertook.

4. The DWP sought information from the university.  A reply completed on 5 February 2007 resulted in, among others, the following questions and answers:

“[Q] 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.)

[A] 22 hours”

“[Q] Does your establishment regard [the claimant] as being in full time education?

[A] Yes”

“[Q] Does [the claimant] receive a student loan, grant or bursary?

[A] Yes. Tuition fee loan, may also have grant/maintenance loan. No details via student loans company available.”

5. The DWP asked the same questions again the following year when preparing for the appeal, receiving a reply that the expected number of hours was 40, confirming the view previously expressed that the university regarded the claimant as being in full time education and indicating that she received a student loan.

6. In connection with the appeal, the claimant provided a letter from her tutor  indicating that “I can confirm that [the claimant] is a full-time first year student who is scheduled for four modules which totals no more than 14 hours of face-to-face lessons each week.”

7. The claimant was represented before the appeal tribunal.  The submission on her behalf was directed to whether she spent less than 21 hours studying, submitting that determining the hours of attendance was a question of fact and that the claimant was able to spend fewer than 21 hours a week, because of the substantial prior knowledge she had as a result of completing her BTEC course.

8. The reference to 21 hours in the above paragraph is to regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976/409, (“the Regulations”).  (“Invalid care allowance” was the former name of the benefit now known as carer’s allowance.)

9. Section 70 of the Social Security Contributions and Benefits Act 1992 provides:

“(1) A person shall be entitled to carer's allowance for any day on which he is engaged in caring for a severely disabled person if—

(a) he is regularly and substantially engaged in caring for that person;

(b) he is not gainfully employed; and

(c) the severely disabled person is either such relative of his as may be prescribed or a person of any such other description as may be prescribed.

[(1A) and (2) omitted]

(3) A person shall not be entitled to an allowance under this section if he is under the age of 16 or receiving full-time education.”

10. Regulation 5 of the 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.

...”

11. The tribunal, in a very carefully reasoned decision, examined the evidence in order to determine how many hours the claimant was spending studying down to the date of decision.  It explained why it placed little weight on the divergent number of hours stated by the university in its two replies.  It relied on the evidence of the claimant's tutor for the number of face-to-face hours.  As regards time spent other than on face to face study, it accepted the claimant’s evidence, that she spent no more than six hours a week on further study. The tribunal reached this conclusion, having examined the claimant’s evidence with a critical, even sceptical eye, as was required of it by the case-law authorities which were then relevant, concluding that the claimant could manage with no more than six further hours of study for three reasons. These were: (a) the claimant had prior knowledge and a good understanding of the course she was undertaking, evidenced by the good grades she had obtained and the overlap in the modules of the degree course with topics she had studied as part of her BTEC course; (b) in the first year there were no exams, so all the claimant had to do was to “get through the year”; and (c) she was, of necessity, having to content herself with grades that were lower than she might otherwise have been able to achieve, had she been able to devote more time to her studies.  It thus concluded that she was spending no more than 20 hours a week on the course and that she was not receiving full-time education.

12. Permission to appeal was refused by the tribunal judge but given by me.

13. While the present case was pending before the Upper Tribunal, Judge Mesher issued his decision in CG/449/2008, which subsequently went to the Court of Appeal as Secretary of State for Work and Pensions v Deane [2010] EWCA  Civ 699. The present case was stayed pending the decision of the Court of Appeal in Deane. Thereafter submissions were made as to the effect of the Court of Appeal’s decision.  I directed an oral hearing and indicated that I would be minded, if further facts needed to be found, to receive evidence before or at that hearing, rather than to risk delaying the matter further by remitting it.  I am grateful to Mr Coper and Mr Hough for their assistance at the hearing.

14. There were, to summarise, two points at issue in Deane before the Court of Appeal: (a) is regulation 5 exhaustive of the circumstances in which a person is to be regarded as being in full-time education” for the purposes of entitlement to carer's allowance? (b) the correct approach to regulation 5.

15. As to (a), the question was answered in the negative by Ward LJ at [41] of his judgment.  In the present case, the appeal tribunal directed its mind only to the interpretation of regulation 5. It did not consider the alternative possibility that a person might fall within section 70(3), irrespective of whether they fell within regulation 5.  Thereby it was in error of law and it is appropriate to set aside its decision.

16. In seeking to re-make the decision, I need to consider what Deane means for applying each of the two tests.  In considering whether regulation 5 is exhaustive, Ward LJ  observed as follows:

.

“36.  I start with section 70(3) itself:

“A person shall not be entitled to an allowance under this   section if he is … receiving full-time education.”

It is written in plain English and the ordinary meaning of the words are clear. As I began this judgment one might think one is easily able to recognise that an undergraduate is receiving full- time education if the course on which he is enrolled is a typical degree course offered by the University as, and treated by the general body of students as, a full-time course. An individual on the course should not ordinarily be treated differently from his fellow undergraduates. Lord Carswell was thus surely correct to observe:

“It might be reasonably straightforward in most cases to   determine whether a university student is to be regarded as in receipt of full-time education …”

Judge Mesher certainly thought:

“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.”

We can all recognise an elephant when we see it. The question then is whether the regulations force us to deny what we are seeing.”

17.  After referring to relevant principles of statutory interpretation and referring to the detailed text of regulation 5, Ward LJ concludes:

“40 The contrast both in the side notes and text between regulations 4 and 8 on the one hand and Regulation 5 on the other is stark. It compels the conclusion that the circumstances described in Regulation 5 prescribe only when a person is receiving full-time education and Regulation 5 does not dictate that a person will not be deemed to be in receipt of full-time unless those conditions are met. If, therefore, a person may, on other criteria, be in full-time education even if the criteria in Regulation 5 are not satisfied, then Regulation 5 cannot be exhaustive. If it is clear on the ordinary meaning to be given to section 70(3) that a person is in fact receiving full-time education, then one need not resort to Regulation 5 to see whether he is to be so treated”(emboldening added).

18. However, because of the way in which the analysis of how regulation 5 is to be understood is expressed in Deane, it is in my view also helpful to look at that, even when one is in the first instance considering section 70(3). Ward LJ observes:

“50 As I read Regulation 5 , there is a tension between paragraph (1) and paragraph (2) . Regulation 5(1) looks to the period during which the person attends a course of education at the university. By enrolling on the course the student implicitly recognises and accepts the university's estimate of the time it is expected to take to cover the course. This paragraph has an objective ring to it. On the other hand, when Regulation 5(2) refers to “time spent”, the language is of time actually being spent on the defined activities, a subjective flavour. It should, however, be noted that such time as is actually spent on these activities is but a matter to be included in calculating the hours of attendance as Regulation 5(2) prescribes only that “in calculating the hours of attendance … (a) there shall be included the time spent …”. If time spent is one factor to be included in the calculation, there must be other factors. Actual time is not the end of the matter. Hence the need to have regard to the demands of the course and the nature and extent of what is being provided – the list of considerations in Lord Carswell's fourth proposition. I appreciate this is not a helpful test. It does not assist those who have to make the decision to say to them that they must look at everything to decide when a person is in full-time education when there is no clear guidance as to what constitutes full-time education. Regulation 5 may describe what full-time education is, but it does not help resolve why what looks like full-time education should not be treated as just that.

51 In my judgment therefore, concentration on the hours actually spent is the wrong approach. To construe Regulation 5 consistently with section 70(3) of the Act, the fundamental question is whether the applicant for CA “is receiving full-time education”. A student will “receive” that which is provided. If in ordinary circumstances the course upon which the student is enrolled is one offered as a full-time university course, as opposed to a part-time university course, then there must be, as Pill L.J. put it, “some presumption” that the recipient is in full- time education. There are always exceptions to the rule, for example, the student granted exemptions from part of the course but the task of the fact-finding tribunal is, having balanced what is offered and what is expected of the student against the student's actual performance of the demands made by the course, to look at the matter in the round and ask by way of testing the conclusion, is this applicant receiving full-time education?

19.   As is pointed out, regulation 5 has to be construed consistently with section 70(3).  Although the point being considered here relates to regulation 5, the point that “a student will “receive” that which is provided” is equally applicable to both provisions.  That there is some presumption that if the course on which a student is enrolled is one offered as a full-time university course, as opposed to a part-time university course, the recipient is in full-time education is a consequence of this and is conceptually applicable to both provisions also.  So also is the point that “There are always exceptions to the rule, for example, the student granted exemptions from part of the course” (and, as that is but an example, there must be others.)

20. I have reached the conclusion that at this point in paragraph 51 of Deane the reasoning directed at the interpretation of regulation 5 ceases to be equally applicable to section 70(3). Section 70(3) has, we now know, a life apart from regulation 5. It does not by its terms require one to consider the hours a student puts in, but rather the education that is received. Hours put in by the student are relevant under regulation 5(2), because the regulation says so. A student in respect of whom the answer to the regulation 5 question is a figure in excess of 21 hours is liable to being disentitled from benefit, even if his or her course would not on the ordinary words of section 70(3) be regarded as full-time.  Therein lies  why the two statutory provisions are not identical in their effect.  I deduce therefore that in the concluding part of paragraph 51, having previously reasoned in terms which are capable of being applied equally to the exercise under section 70(3), once Ward LJ concludes with the words

“but the task of the fact-finding tribunal is, having balanced what is offered and what is expected of the student against the student's actual performance of the demands made by the course, to look at the matter in the round and ask by way of testing the conclusion, is this applicant receiving full-time education? “

he is addressing, and addressing only, the test required by regulation 5.  The language of “balanc[ing]” what is offered and what is expected”  reflects the tension between paragraph (1) and (2) of regulation 5 noted at [50] of Deane.

21. The application of the regulation 5 test as articulated in Deane is, as Ward LJ himself acknowledged, not without its difficulties.  Whether I need to explore them or not depends on whether the claimant is in any event caught by section 70(3), to which I accordingly turn.

22. Mr Hough sought to rely on observations by Mr Commissioner Powell (as he then was) in CG/4395/2004 and CG/3308/2007.  The former mentions substantial prior knowledge as a potentially relevant factor and the latter the fact that exams had been passed with distinction.  Both, however, were made in the context of discussing the 21 hour provision found in regulation 5.  Further, the observations were made in the light of previous decisions of the courts which must now be read subject to what is said in Deane.  As a result, I do not derive significant assistance from the observations in applying the section 70(3) test post-Deane.

23. I accept the appeal tribunal's findings of fact so far as they go. I also find as facts that the claimant had not been exempted from any modules (this was implicit in the tribunal's statement of reasons and explicitly mentioned by the tribunal judge when refusing leave) and (based on evidence before me) that the university did operate a structured system for “Accreditation of Prior Learning” for giving such exemptions, of which the claimant did not avail herself. The claimant received a student loan from the student loan company.

24. This was a three-year course, consistently regarded by the provider as full-time.  The claimant had conventional financial assistance applicable to a full-time course. She was not exempted from any module at the relevant time.  Her case for saying that she was not receiving the full-time education which it at first sight appears to be turns entirely on the asserted relevance of her prior knowledge.

25. In written submissions, the Secretary of State had asserted that:

“Where a carer is undertaking a course of education which is stated to be a full-time course from the outset then, even if they state that they are studying part-time, Section 70(3) of the Act applies.”

26. If this is intended as a proposition of law, then it is too widely stated: see the exceptions contemplated by the Court of Appeal referred to at [18] above. It is possible in principle for there to be exceptions otherwise than by virtue of being exempt from part of the course.  In the present case, however, I am unpersuaded that the claimant was receiving anything other than full-time education.  Any student who studies the same subject at the equivalent of A level as s/he does for a degree may derive some benefit from work done previously – the literature student who has read some works by the same author, or the history student who has studied a period which now comes up as part of a degree. But A level (or equivalent) study, even with good grades, is not the same as a degree (whether in a vocational field or otherwise) and even where the same topic is involved, one would expect it to be covered in greater depth in a degree. There will be almost infinite variation in the benefit of previous study to the learning of degree students, as in other factors affecting their learning. What we are concerned with is whether there is sufficient to rebut the presumption that the claimant, being on a course regarded as full-time, was not receiving full-time education.  I accept that there was an overlap between the headline topics covered, and that the claimant had done very well in the BTEC National Diploma, but if the value of her prior study was so great as to affect the full-time nature of the education which she required to receive in order to obtain her degree, one would have expected to have seen it reflected in a formal exemption, given that the university had a structure for conferring them.

27. Nor do I consider that the fact that there were no exams in the first year makes any difference.  The course was categorised as full-time despite this.  The absence of exams may have made it possible for the claimant to cut corners by reducing the hours she put in, but did not affect what was the education she received.  The same is true of her willingness to accept lower grades than she might have achieved if she had put more time in.

28. In consequence, while one can only have considerable respect for the claimant and others like her who manage to study for a degree while also carrying out substantial caring responsibilities I conclude that section 70(3) applies to her and thus that she was disentitled from carer's allowance on the law as it has now been declared by the Court of Appeal to be.


29. In view of this conclusion, it is not necessary for me to dwell further on whether the tribunal further erred in law in its approach to regulation 5 or otherwise.

CG Ward

Judge of the Upper Tribunal

4 January 2011