SM v Secretary of State for Work and Pensions

A student’s interruption of attendance on a full-time course is not necessarily temporary merely because the student expects to resume study. Under regulation 5(3), the relevant distinction is between interruptions which leave the student fairly regarded as actively pursuing full-time study and those which do not.

A formal year-long deferral agreed with the university, during which the student does not actively pursue the course, falls outside the deeming rule in Social Security (Carer’s Allowance) Regulations 1976. The student is therefore not treated as receiving full-time education on that basis.

Mrs M deferred her occupational-therapy degree course for a year in order to care for her disabled son. She claimed carer’s allowance during the deferral. The Secretary of State refused the claim on the ground that she remained in full-time education.

The First-tier Tribunal dismissed her appeal. It held that any interruption before the course ended, was abandoned, or resulted in dismissal was a temporary interruption within regulation 5(3) of the Social Security (Carer’s Allowance) Regulations 1976.

On appeal, the Secretary of State accepted that this construction was wrong. The central issue was whether Mrs M’s formal year-long deferral was a temporary interruption of attendance for the purposes of regulation 5(3).

1. Appeal allowed. The First-tier Tribunal erred in law by treating every interruption of attendance before the end, abandonment or dismissal from the course as temporary. Its decision was set aside and remade.

2. Section 70(3) of the Social Security Contributions and Benefits Act 1992 disqualifies a person receiving full-time education from carer’s allowance. Regulation 5 of the Social Security (Carer’s Allowance) Regulations 1976 is the starting point for deciding whether a student is to be treated as receiving such education. Regulation 5(3) supports regulation 5(1) by deeming attendance during vacations and temporary interruptions.

3. The word temporary must do substantive work. It distinguishes between non-permanent interruptions. The correct inquiry is whether the nature of the interruption means that the student can no longer fairly be considered actively to be pursuing a full-time course of study. If so, it is not a temporary interruption within regulation 5(3).

4. The Tribunal did not approve or authorise the Secretary of State’s proposed criteria for future cases. It confined its decision to the legal error and Mrs M’s circumstances.

5. Mrs M had arranged a year-long deferral with the university. At the relevant dates she could not fairly be regarded as actively pursuing her course. She was not receiving full-time education, and the Secretary of State was directed to re-decide her carer’s allowance claim on that basis. It was unnecessary to determine the Article 14 issue.

• Upper Tribunal (Administrative Appeals Chamber): allowed Mrs M’s appeal, set aside the First-tier Tribunal decision for an error of law, and remade it in her favour.
• First-tier Tribunal: on 2 December 2014, Middlesbrough, file reference SC 227/14/00641, dismissed Mrs M’s appeal against the refusal of carer’s allowance.