Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CG/1059/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I remit the case for rehearing by a new tribunal in accordance with the directions given below.

REASONS FOR DECISION

1.     This appeal is brought with the permission of a Judge of the Upper Tribunal.

2.     The claimant had been in receipt of carer’s allowance since 2004.  The award was superseded by a decision dated 3 May 2011 when the original decision awarding carer’s allowance was superseded  and it was determined that the claimant was not entitled to carer’s allowance from 9 October 2006 because she had been engaged on a course of full time education.  The claimant had commenced a Master’s degree on that date, which appears to have been completed in 2008 and since 1 January 2008 she had been engaged on a PhD thesis which was originally to take three years but for which she has received a total of a 12 months’ extension.

3.     By a further decision of the same date a decision maker determined that there had been an overpayment of carer’s allowance from 9 October 2010 to 9 January 2011 (both dates included) amounting to £11,295.50 which had been paid as a result of the claimant’s failure to disclose that she was in full time education and would not have been paid but for the failure to disclose.  Accordingly it was determined that that sum was recoverable from the claimant.

4.     The claimant appealed.  She stated in her notice of appeal that when she was about to commence her degree course, she telephoned the carer’s allowance section to discuss her situation and was informed that her claim for carer’s allowance would continue.  She could not be held responsible if the information given to her by a DWP worker was incorrect.  The DWP has been able to find no record of this conversation, and no record of any enquiries being made of the university at which she was studying regarding the course.  It was contended by the decision maker in the submissions to the tribunal that as all staff at the carer’s allowance unit in Preston (which is said to be the only office responsible for administering the benefit) were trained in the qualifying conditions for the benefit, it was unlikely that the claimant could have been given any such advice without the appropriate enquiries having been made.  It was also contended that in any event no disclosure was made of the commencement of the second course, which she was still obliged to report.

5.     When the claimant made her application for carer’s allowance in July 2004, she stated that she had not been on a course of full-time education since the date of claim.  She signed a declaration that provided that, amongst other matters, that she would promptly tell the office that pays her benefit of anything that may affect her entitlement to, or the amount of, that benefit.  She was also issued with a document that provided that if any of the listed changes occurred she must tell the carer’s allowance unit straight away.  One of these was “You start a course of education or instruction”.

6.     The claimant’s case before the tribunal was that she had reported the commencement of her course in the telephone call which she made when she was about to commence her course. 

7.     The tribunal dismissed her appeal.  The decision notice states that she failed to disclose that she was starting a full-time Master’s course which was expected to progress to a PhD.  It continues “The Tribunal believes that she may have made a general enquiry which emphasised the small amount of actual attendance and that the time available for caring was undiminished.  This was not disclosure.”

8.     The Statement of Reasons states at paragraph 9 that the claimant “said that in June 2006 [the university] had contacted her to advise her of the availability of ERSC funding for a 1+3 studentship which involves a full-time taught master’s degree followed by a full-time doctorate.  She obtained the necessary details and applied.  She was interviewed and she learnt that she was successful sometime before the commencement of the course in October 2006.  She said that she telephoned the Carer’s Allowance Unit to ask them about whether she would still receive Carer’s Allowance and undertake the proposed course of study.  She said that she spoke to a woman.  She was asked whether she had to attend.  She said that she had told them that she would have to attend for 6 hours a week initially but this would reduce later as the latter part of the course was self-directed study.  She was asked whether she was going away from home.  She was asked whether and how she would be able to fit in her caring responsibilities.  Later in the hearing she said that she was sure that she had described the course as being a full-time course.  She was not asked to confirm the substance of this call in writing or to provide any documentary information.  She was left with the impression that her record had been noted with the details of her proposed course of study.”  The account of her evidence does not deal with any statement by her, if made, that she was told that her carer’s allowance would continue, as stated by her in her notice of appeal.

9.     The tribunal rightly rejected the contention of the Secretary of State, who was not represented at the hearing, that an additional notification was needed in any event in relation to the PhD course.  It went on to note that at the relevant time in 2006 the what amounted to full-time education was understood differently from the way in which it is now understood following the decision of the Court of Appeal in Secretary of State v Deane, [2010] EWCA Civ 699.  The statement of reasons continues at paragraph 14 “At that time, the understanding was that the question of whether a course was full-time or part-time was a factual question as to the actual amount of contact hours and independent study in each case.  The expectations of the course provider provided only strong evidence that a student was studying for that number of hours.  That understanding of the legal position is of significance when considering the question of how likely it was that the conversation followed the course described by the Appellant.”

10. The tribunal went on to point out that there was a difference between notifying a change of circumstances and making an enquiry about the legal position if a particular change of circumstances were to occur.  It concluded that in this case the claimant’s evidence was primarily of an enquiry.  She wanted to know the position if she took this course. “The Appellant went on to say that she thought her record had been noted accordingly.  However, that raises the question of what her record could ever have been noted with.  At that point all that could have been recorded was that the Appellant was considering studying for a particular series of courses.”

11. The tribunal went on to say that it accepted the evidence of the Secretary of State that his staff in this special unit were trained to be alive to questions of the eligibility of students.  Here, in my judgment, the tribunal erred in law.  There was no such evidence.  There was a submission by the decision maker, who may or may not have been in a position to give evidence about this.  Further, the submission does not even condescend to give any details of the training or for example produce a manual of the training given.  Nor does the decision maker say, as quoted by the tribunal that the staff were trained to be alive to questions of the eligibility of students, only that they were trained (to some unspecified degree of detail) in the qualifying conditions for carer’s allowance.

12. The tribunal then continued: “The number of previous cases on this subject covering all manner of different courses had demonstrated that this was a running sore and a complex issue which might in some cases turn on how lazy or brilliant a student was.  It was implausible that any officer would have attempted to give a concluded view simply on the Appellant’s say so.”  Whatever the experience of this tribunal, there is no evidence as to how much of a running sore or complex issue this was seen to be in the carer’s allowance unit.  Thus, in volume 1 of Social Security Legislation 2006 (Non-Means Tested Benefits), there is only one paragraph on the subject at p.560.  I have also been unable to find any reported decisions involving postgraduate research degrees.  Without evidence of the actual instructions and training given to officers at the unit as to the approach they should take, and possibly also evidence that in practice the instructions were invariably carried out, it appears to me that there is no basis for the conclusion that it is implausible that any officer would have attempted to give a concluded view, or at least a view which a person in the position of the claimant might have understood to have been a concluded one.  Even if officers were so instructed and trained, it is hard to overlook that, in all walks of life, on some occasions instructions and training are not properly followed and the tribunal would also need to take that possibility into account.

13. The tribunal concluded that the factors to which it referred tended to show that any enquiry was of the most general nature, which the officer did not treat as a notification and that the conversation did not give any triggers that this may be a case of difficulty.  It considered it unlikely that any conversation included any reference to the course being full time.  The staff at the unit would have known that the eligibility of students was a problem area.  If this was the case, however, on the basis of the tribunal’s reasoning, would not the officer in question have been expected to warn the claimant of this?

14. The tribunal went on to conclude that it did not accept that the claimant disclosed that she was starting a master’s course leading to a PhD.  She may have made a general enquiry and, if she did, that enquiry did not fairly disclose that this was a full time master’s course but rather played down the number of hours engaged on the course.  There was no disclosure of a change of circumstances rather than an enquiry about the possibility of such a change.

15. Although the tribunal recorded the claimant’s contentions in paragraph 9 of the statement of reasons, it makes no clear findings as to whether she did make contact with the unit by telephone.  Nor does it find, if she did make such contact, whether this was before or after she was accepted on the course.  In either event, it makes no finding as to the purpose of the call, which, if made, would appear to indicate that the claimant was aware that her starting the course might lead to problems with her carer’s allowance.  If the purpose was to obtain clarity as to this, and possibly to enable her to decide whether to start the course, it is also difficult to see what benefit she could have obtained by obfuscation.  These are matters which the new tribunal to which I am remitting this case may wish to consider in reaching a conclusion on the facts.

16. If there was an enquiry, but it was before the receipt of the offer from the university, then I agree with the tribunal that it could not have been disclosure by the claimant that she was starting the course.  There was no change of circumstances at that time to disclose.  On the other hand, if the claimant contacted the unit after receipt of the offer, and, for example, made it clear to the person to whom she spoke that she had accepted or proposed to accept the offer and was starting in October, or would do so unless told that she would lose her allowance as a result, then that would be a sufficient disclosure.

17. The tribunal erred in law, as I have indicated, in accepting submissions by a decision maker as if they were evidence and in then making unjustified assumptions as to what the officers at the carer’s allowance unit in 2004 must have known and been trained to do.  If the Secretary of State wishes to give evidence as to the way in which the officers at the unit were trained, and what they knew, in 2006, and as to the way in which such instructions were implemented in practice on the telephone, and the extent to which errors occurred, then such evidence should be given by somebody with first hand knowledge if possible, and any relevant training manual or instructions should be produced. 

18. Although entitlement was not in issue before the tribunal, where it was accepted that the claimant was receiving full-time education for the purposes of section 70(3) of the Social Security Contributions and Benefits Act 1992, in giving permission to appeal, Judge Levenson questioned in what sense researching for a PhD was a “course” and he did not accept that entitlement was not an issue.

19. I am unclear from the file whether the Master’s degree, as well as the PhD, was purely research based, and it is possible that the new tribunal may wish to consider the extent to which the nature of the two degrees was explained to the officer on the telephone, if it accepts that there was such a conversation, and whether there is a possibility that the officer may have adopted the view that a research degree was not a course of education at a university for the purposes of regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976.  It is possible that this may have influenced an officer at the time before the decision in Secretary of State v Deane.

20. However, the key question is whether the claimant, when doing such a course, was receiving full-time education for the purposes of section 70(3) of the 1992 Act.  A research student is carrying out the research and writing her thesis as a student member of the university with a view to obtaining a degree from that university, and is doing so under the supervision of teaching staff at the university.  The work is part of her education and is done for that degree.  When invalid care allowance was first introduced in 1975, in presenting the Social Security Bill to the House of Commons, the then Secretary of State for Social Security, Barbara Castle, stated that it and another new benefit introduced in the same Bill “would provide new non-means-tested help for those of working age who are deprived of the opportunity to earn their living and who have no rights under existing contributory insurance schemes.” (Parliamentary Debates, House of Commons, 1974/5, Vol.881, col.1555).

21. It is clear that the reason for excluding those in full-time education, in addition to those gainfully employed and those under 16 years of age, was that they were not being deprived of the opportunity to earn a living because they were full time students.  Full-time students at the present time may frequently also be gainfully employed and, where they are carers may be deprived of the opportunity of earning a living, or at least part of a living, at the same time.  However, I can see no reason to interpret section 70(3), re-enacting as it does section 37 of the Social Security Act 1975, to draw a distinction between full-time undergraduates and full-time postgraduate students, or between full-time postgraduate students doing a degree course and those doing a research degree.  All are receiving full-time education for the purposes of section 70(3) on the basis of which all are to be treated as not being deprived because of their caring responsibilities of the opportunity to earn a living.

22. It follows that I consider that the parties and the tribunal were correct to proceed on the basis that entitlement was not an issue.

(signed)

Michael Mark

Judge of the Upper Tribunal

21 November 2012