Secretary of State for Work & Pensions v Deane

A person may be receiving full-time education for the purposes of section 70(3) of the Social Security Contributions and Benefits Act 1992 even if the conditions in regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 are not satisfied. Regulation 5 is not exhaustive.

Under regulation 5, the assessment is not confined to the hours which the individual actually spends studying. The tribunal must consider the course in the round, balancing what the institution provides and expects against the student’s performance of those demands. Enrolment on a course offered as full-time creates a presumption that the student receives full-time education, subject to exceptions such as exemption from part of the course.

The respondent received carer’s allowance because she cared for her severely disabled daughter. After enrolling on a combined honours degree which the university classified as full-time, her award was superseded on the ground that she was receiving full-time education. She maintained that her contact and study hours were fewer than 21 each week.

The Liverpool Appeal Tribunal dismissed her appeal. The Upper Tribunal allowed a further appeal and remitted the matter, holding that regulation 5 turned fundamentally on the time actually spent by the particular student in the prescribed activities. The Secretary of State appealed.

The Court of Appeal considered whether regulation 5 was exhaustive of the circumstances constituting full-time education and whether its 21-hour calculation depended on hours actually spent.

1. Appeal allowed. Regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 is not exhaustive of the circumstances in which a person receives full-time education for section 70(3) of the Social Security Contributions and Benefits Act 1992. Section 70(3) uses ordinary language and directly excludes a person receiving full-time education. Regulation 5 prescribes circumstances in which a person is to be treated as receiving such education, but does not prescribe when a person is not to be so treated. Its wording contrasts with regulations 4 and 8, which expressly address both inclusion and exclusion. The delegated legislation remains subordinate to the enabling Act.

2. The observation in Wright-Turner v Department for Social Development [2002] NICA 2 that regulation 5 was comprehensive reflected a concession and was obiter. The Court of Appeal was not bound by a Northern Ireland decision, although decisions on identically worded legislation should ordinarily receive the greatest respect and be followed to avoid inconsistent application. Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641 did not decide whether regulation 5 was exhaustive.

3. The Upper Tribunal erred in treating the hours actually spent by the student as the fundamental test under regulation 5. The ascertainment of attendance is a composite factual question. Relevant matters include the institution’s formal attendance requirements, its estimate of the supervised study needed to complete the course, the student’s evidence and any other material evidence. Actual study time is relevant but is not conclusive.

4. The tribunal must consider what the course offers and expects and balance those matters against the student’s actual performance of its demands. It must then determine in the round whether the applicant receives full-time education. Where a person enrols on a course offered as a full-time university course, there is a presumption that the person receives full-time education. The presumption permits exceptions, including a student exempted from part of the course.

5. The respondent was enrolled on a conventional course which the university offered and regarded as full-time. The decision of the Appeal Tribunal that she was ineligible for carer’s allowance was reinstated. Hallett and Hughes LJJ agreed with Ward LJ.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and reinstated the Appeal Tribunal’s decision that the respondent was not eligible for carer’s allowance: [2010] EWCA Civ 699.
2. Upper Tribunal (Administrative Appeal Chamber): Allowed the respondent’s appeal in CG/449/2008 and remitted the matter to a newly constituted tribunal. It held that the Appeal Tribunal had wrongly concentrated on the course requirements instead of the student’s actual hours.
3. Liverpool Appeal Tribunal: Dismissed the respondent’s appeal against the supersession of her carer’s allowance award. It found that her full-time university course required sufficient supervised study to bring her within regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976.