Flemming v Secretary of State for Work and Pensions

A university student may be treated as receiving full-time education although much of the required study takes place away from university premises. Under regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976, attendance means pursuing the course. It does not require physical presence.

Private study is supervised where it is directed to the course and undertaken to meet its reasonable requirements. Physical oversight and an immediate sanction for non-compliance are unnecessary. The total hours are a question of fact. The tribunal should focus primarily on the time which the institution expects students to devote to contact hours and supervised study.

The claimant received invalid care allowance while caring for her disabled mother. After she began an undergraduate degree, an adjudication officer decided that her entitlement ceased because she was receiving full-time education. The Social Security Appeal Tribunal dismissed her appeal.

Mr Commissioner Jacobs set aside the tribunal’s decision and directed a rehearing. His directions indicated that work set in preparation for classes or written assignments could count as supervised study even when undertaken away from university premises. The claimant appealed against that construction, but not against the remission.

The central questions were whether “attends” in regulation 5(1) of the Social Security (Invalid Care Allowance) Regulations 1976 required physical presence and what constituted “supervised study” under regulation 5(2).

1. Appeal dismissed unanimously. Pill and Chadwick LJJ each held that regulation 5 did not confine attendance or supervised study to activities undertaken on university premises. Longmore LJ agreed with both judgments.

2. Per Pill LJ, “attends a course of education at a university” means being enrolled upon and pursuing the course. In ordinary usage it has no necessary locational connotation. Regulation 5(3), which treats a student as attending during vacations and temporary interruptions, supported that construction. Chadwick LJ likewise held that the object of attendance is the course of education, rather than the institution’s premises.

3. Supervised study may occur without the supervisor being physically present. The study must be directed to the course and its curriculum, and must involve a degree of direction by and answerability to a supervisor. Work undertaken to meet the course’s reasonable requirements will ordinarily qualify. Work set for class discussion or written assessment will generally fall within that description. Neither the absence of an immediate sanction nor performance away from the institution prevents the work from being supervised study.

4. Study beyond the course’s reasonable requirements may constitute unsupervised study and is excluded by regulation 5(2)(b). The reference in that provision to unsupervised study undertaken on or off the premises does not imply that supervised study must take place on the premises. Its probable purpose is to confirm that otherwise unsupervised study does not become supervised merely because it occurs there.

5. The court agreed with and adopted the broad approach in Bronwyn Wright-Turner v Department for Social Development. Determining the hours of attendance is a question of fact. The tribunal should focus primarily on the standard time which the institution expects students to devote to contact hours and supervised study. Evidence from the student remains admissible, but a claim to spend significantly less time than the institution expects requires careful scrutiny.

6. The claimant’s appeal from the adjudicator’s decision was remitted for rehearing by a differently constituted Appeal Tribunal in accordance with the Court of Appeal’s judgments.

1. Court of Appeal: The appeal was dismissed unanimously. The remission ordered by the Commissioner remained in place, with the rehearing to apply the Court of Appeal’s construction of the relevant provisions.
2. Social Security Commissioner: Mr Commissioner Jacobs set aside the Appeal Tribunal’s decision and directed a complete rehearing by a differently constituted tribunal. The claimant appealed only against his construction of section 70(3) of the Social Security Contributions and Benefits Act 1992 and regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976.
3. Social Security Appeal Tribunal: The tribunal dismissed the claimant’s appeal from the adjudication officer’s decision that her entitlement ceased when she commenced her degree course.