IN THE UPPER TRIBUNAL Case No  CG/1154/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Mr Hugh James, Solicitor

 

For the Respondent: Ms Judith Hodson, Rochdale MBC Advice Service

 

Decision:  The appeal is allowed, but this does not change the practical outcome. The decision of the First-tier Tribunal sitting at Rochdale on 11 February 2010 under reference 947/09/02673 involved the making of an error of law and is set aside.  However, I re-make the decision in terms that the claimant continued to be entitled to carer’s allowance from and including 19 January 2009 as the course of education on which she was engaged was a part-time course.  In consequence there is no overpayment of carer’s allowance in respect of the period covered by the decision which is recoverable.

 

REASONS FOR DECISION

 

1. The claimant had been in receipt of carer’s allowance from and including 29 September 2008 for caring for her mother.  On 19 January 2009, having just turned 17, she started a course, “e2e”, standing for “entry to employment”, with a training provider, Rathbone Training (“Rathbone”).  The purpose of the course was to equip (mainly) young people to embark upon employment by bringing their core educational skills in English, numeracy and computer literacy up to a level which would enable them to function in general employment.

 

2. On 5 February 2009 the fact that the claimant was attending the course came to the attention of the Department for Work and Pensions.  Carer’s allowance continued in payment until 22 February 2009 and was then stopped.  A decision dated 28 April 2009, taken on supersession of the decision originally awarding the allowance, removed entitlement.  A recoverability decision dated 20 May 2009, as subsequently revised, adjudged that carer’s allowance for the period 19 January 2009 to 8 February 2009, amounting to £151.65, had been overpaid and was recoverable.  The claimant appealed, arguing that it was at all material times a part-time course (i.e. challenging the removal of entitlement) and in the alternative asserting that she was not in breach of her duty to report a change of circumstances (i.e. challenging recoverability).

 

3. An oral hearing was held, which the claimant attended with her representative, but at which the DWP was not represented.  The evidence before the tribunal consisted of replies given by the claimant on 11 February 2009, declared by her to be correct and complete so far as she knew and believed, that she spent 18 ½ hours a week on the course; replies dated 2 March 2009 from Rathbone to a questionnaire sent them by the DWP; and the claimant’s oral evidence.  The questions and answers in the questionnaire completed by Rathbone included the following:

 

“[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] 18 hours

 

[Q] Do the number of hours vary? (For example, for a sandwich course?)

[A] [No answer was given]

 

Q. Is there a placement during the course?

[A] Yes.

 

Q. When will the placement start?  When will the placement end?

[A] [Neither question was answered]

 

[Q] How many hours a week is [the claimant] expected to attend the placement?

[A] 30 hours.

 

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

[A] Yes.”

 

There was no space for the person signing the questionnaire to indicate his or her job title and the accompanying office stamp is illegible.

 

4. The tribunal heard oral evidence from the claimant which it clearly accepted.  This dealt with the weekly hours of the course, which were Monday-Thursday 9-1 and Friday 9-11, i.e.  18 hours in all (there is an odd half-hour discrepancy with her earlier answer, but no point has been taken about this and there is no dispute as to these hours.) It then continued (as set out in the statement of reasons):

 

“11. The appellant in her evidence told the tribunal that when she first attended the course in January 2009 she had no knowledge of any requirement to attend a placement outside of the training establishment.  It was some 6 weeks into the course before it became apparent to her that some students were being placed with employers, mainly (but presumably not exclusively) in retail establishments where they would work alongside other employees.  The selection of students to attend these placements was, the appellant said, quite random and   without any clear basis other than (she surmised) that of reasonable behaviour.  The appellant said that it appeared to her that if you behaved well then you would be considered for a placement.  Many students were not placed at all.  Some attended for a short time then   opted out.  This was it seemed quite usual.  The course was not a “pass or fail” course but rather one intended to give students a better chance of gaining employment by giving them the essential skills they would need and, in relation to the placement component, exposing them to the disciplines of the workplace.

 

12. In the case of the appellant she was offered and took up 2  placements…There was a placement for a period of 5 weeks at a store called InStore which occupied a total of 26 hours per week in addition to which the appellant attended formal study at Rathbone for a further 2 hours each week, a total of 28 hours a week in all.  A further placement at a children’s clothing store, Ethel Austin, was for one week only and occupied 30 hours with a further 2 hours at Rathbone, a total of 32 hours.”

 

5. The tribunal addressed to the categorisation of the course by Rathbone before proceeding to determine the matter on alternative bases, as follows:

 

“14. In approaching this matter the tribunal has taken note of the statement by Rathbone that it considers its course to be a full time one in which the student is expected to attend external work placements of 30 hours a week.  The tribunal finds as a fact that as the appellant has   testified the management of these placements was haphazard to the extent that it could not truly be said that there was any real requirement in this respect. The fact that the appellant knew nothing of the placements until 6 weeks into the course and the fact that these placements could be ended at will (as was the case in relation to both of the appellant’s placements) signifies to the tribunal that there was no structured element to the placements.  They were in effect an option which some students took advantage of whilst others did not.  30 hours a week might constitute an aspiration by Rathbone but there is no evidence that this was required of the students.  Whilst on placement there was no supervision by Rathbone nor was there any evidence   produced to the tribunal that the placements were included in the curriculum of the course.

 

15. In the view of the tribunal the placements attended by the appellant did not constitute part of the study provided by Rathbone Training.  In so finding, it is not suggested that a placement could not be integrated into a course of study so as to clearly form part of it but in that case it would need to be made clear from the course prospectus or other materials that the placement element was truly an essential part of the course.  The appellant’s account of the placements and the way in which they were allocated does not suggest that they were other than optional.  Alternatively, should the above understanding of the tribunal as to the status of placements by Rathbone be incorrect, the tribunal adopts the approach suggested by the appellant’s representative in that the actual attendance on placements could properly be taken account of in the context of the whole of the course leading to the conclusion that the weekly period of study including the placements was less than 21 hours.  This “whole course” approach is one which finds some support from Judge Mesher at paras 37 and 38 of his decision referred to above.” [This was [2009] UKUT46 (AAC), which subsequently went on appeal to the Court of Appeal as Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 669.]

 

6. Permission to appeal was given by the District Tribunal Judge.  The case was stayed pending the Court of Appeal’s decision in Deane. I held an oral hearing and am grateful to Mr James and Ms Hodson for their submissions.

 

7. As developed before me, the Secretary of State’s points were in essence the following:

 

(1) Deane now makes clear that it is necessary to consider whether a course is full-time both (a) by reference to the wording of section 70(3) of the Social Security Contributions and Benefits Act 1992 (“the 1992   Act”) and (b) by reference to regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976/409 (“the 1976 Regulations”). The latter does not provide an exhaustive definition of the former, thus it is sufficient to satisfy one or the other.  The tribunal, it is said, failed to apply Deane in this respect.

(2) Both under section 70(3) and regulation 5, the correct starting– point is the provider’s categorisation, but the tribunal failed to deal with this adequately or at all.

(3) Under both provisions there is a presumption in favour of the provider’s categorisation, which can only be departed from for a good   reason and the tribunal must explain why, which it did not.

(4) If the tribunal was considering departing from the provider’s categorisation, it should have adjourned for fresh evidence to be obtained.

 

8.  The Secretary of State does not pursue before me the position previously put forward in written submissions that Deane is authority for the proposition 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 Social Security Contributions and Benefits Act 1992 applies.”

 

While this statement, which I have seen put forward in another case also, may often be the result in practice, as a proposition of law, I view it as an over-simplification of Deane and too broadly stated.

 

9. Section 70 of the 1992 Act states:

 

“(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 1976 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, under-taking 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.

 

11. As to ground (1), I accept that Deane is authority for the proposition stated. It is necessary to consider both tests of whether a person can be said to be receiving full-time education: that under section 70(3) and that under regulation 5.  I accept that the tribunal’s reasons were directed only at whether regulation 5 was met and that it did not separately consider section 70(3).  On that ground it was in error of law.

 

12. As to grounds (2), (3) and (4), I deal first with ground (4) - whether the tribunal was entitled to reach a view based on the evidence which it had.  The claimant gave oral evidence. There is no reason evident to me why the tribunal was not entitled to accept the claimant's evidence about matters within her knowledge if it saw fit. That enabled it to reach the conclusion that the work experience was not part of the course and that conclusion cannot successfully be challenged in a jurisdiction limited to error of law.

 

13. It is said, though, on behalf of the Secretary of State, that the tribunal ought to have explored further why the provider considered the course to be full-time.  I do not accept this. The DWP had made the initial enquiry, without making it clear what was meant by “full-time” when asking Rathbone whether the course was indeed full-time.  Institutions may have their own definitions or others which they need to apply, which may or may not correspond to what is relevant for benefit purposes.  There was no indication of the ability of the person replying to the questionnaire to speak authoritatively as to the matter.  The answers given were incomplete. In short, it was not compelling evidence.  Nor was this a case, such as perhaps - in the light of Deane - that of a conventional university course, where judicial notice might conceivably be taken of the test which the provider might be applying. If the tribunal was sufficiently persuaded by the claimant’s evidence, as it evidently was, then in my judgment the tribunal was not required to seek further evidence.  While I accept that the inquisitorial function of the tribunal may on occasion require it to get further evidence for itself, that does not absolve the parties from their duty to put suitable evidence before the tribunal.  Here the DWP had submitted what it thought fit to support its decisions (including the entitlement decision taken on supersession, where the burden lay on it) and the claimant's representative had assembled what evidence she thought fit, in the form of the claimant's questionnaire and oral testimony.  The argument put forward by the Secretary of State would risk tribunals grinding to a halt if even when they had evidence provided by the DWP, tribunals were in error of law for failing to adjourn because there might be some more evidence out there which might benefit the Department.

 

14. Nor is there any indication that, had the tribunal done so in this case, such a process would actually have yielded any useful further evidence from Rathbone. The Secretary of State has not sought to demonstrate in the present proceedings the materiality of the alleged failure.  Ms Hudson, for the claimant, has not merely sat back and sought to rely on the burden of proof but has herself has made several further enquiries of Rathbone, all of them unsuccessful.

 

15. I also consider that neither ground (2) nor ground (3) is made out.  The tribunal had noted Rathbone’s position that it considered the course to be a full-time one earlier in its decision, returning to it in paragraph 14 of its decision, set out verbatim above.  The tribunal tackled Rathbone’s statement head-on, giving it a weight which in my judgment was consistent with Deane, for reasons to which I return below.  It explained in some detail why it was not adopting Rathbone’s categorisation of the course, based on the evidence before it on which, as I have held, it was entitled to rely.

 

16. The position that “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” was one which Judge Mesher would have liked to have adopted in Deane, if he had not felt constrained by authority (Deane at [10]) and which receives support from Ward LJ (Deane, at [52]) may ultimately be dependent on what can be proved (or be a matter of which judicial notice can be taken) regarding the structure of undergraduate study in this country.  The present course was very different and there was no reason why, if the observations in Deane directed to conventional university courses are to be read as indicating that the presumption in favour of the educational institution’s categorisation is a rather more weighty one, that principle should have any relevance to the present course. However, a presumption of some sort there nonetheless is, but the tribunal respected that in paragraph 14 of its decision in the weight it gave to Rathbone’s categorisation. It was in that paragraph that the tribunal also provided clear and cogent reasons why it considered that the presumption was rebutted.

 

17. It follows that the only ground of appeal which I consider is made out is ground (1).  It seems to me that the tribunal’s findings of fact are unshakeable. On that basis, although the tribunal ought to have asked itself the question under section 70(3), I am in a position to do so.  I adopt the tribunal’s approach to the categorisation of the course by Rathbone.  I conclude that on the facts of this case a course for four mornings and one two hour period per week, involving no other work, and of which any placements did not form part of the course, was a part-time and not a full-time course for the purposes of section 70(3) and re-make the decision accordingly.

 

18. For the sake of completeness, the Secretary of State’s grounds of appeal did not take issue with the tribunal’s approach to regulation 5.  That is not to say that the tribunal applied it correctly (in the light of the Court of Appeal’s decision in Deane, it did not) but Mr James accepts that if one carried out the calculation required by regulation 5(2), one would reach an answer of 20.91 hours, even with the placements included.  His argument is not with the calculation of hours, but with the treatment of the categorisation by Rathbone, as set out above.  If he had succeeded on it, that might also have affected the outcome of the regulation 5 test, which in the light of the observations of Ward LJ in Deane at [51] is not solely dependent on the calculation of the number of hours, but he did not.

 

19. As I am holding that there was no overpayment on the basis that the claimant was not receiving full-time education, I do not need to express a view on the claimant’s secondary point of whether she was obliged (either at the outset of the course or when she later found out about the existence of the placement) to report it as being “full-time education” even though it may have seemed distinctly part-time to her.

 

 

 

CG Ward

Judge of the Upper Tribunal

4 January 2011