Secretary of State for Work and Pensions v BC

For carer’s allowance, the statutory reference to being under 16 must be understood by reference to the compulsory school-leaving age. A person who has reached 16 but remains of compulsory school age is therefore excluded from entitlement, even if they are not in fact receiving full-time education. Home education may satisfy the education requirement only if it is efficient, suitable and full-time. The regulations identifying when a person is treated as receiving full-time education are not exhaustive, but they do not create an entitlement during compulsory schooling. A later change to the school-leaving framework may be reflected through purposive interpretation where that gives effect to the statutory purpose and does not contradict the statutory language.

Ms BC became 16 on 22 January 2020 and had been caring for her brother since November 2019. She was home-schooled and accepted that she was not receiving full-time education. The Secretary of State decided that carer’s allowance could not be claimed until 29 June 2020, following the end of the relevant school year.

The First-tier Tribunal held that entitlement arose when Ms BC turned 16, despite her remaining of compulsory school age. The Secretary of State appealed. The central issue was whether section 70(3) of the Social Security Contributions and Benefits Act 1992 excluded entitlement until the end of compulsory schooling.

1. The appeal was allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal remade the decision on the agreed facts.
2. Section 70(3) of the Social Security Contributions and Benefits Act 1992 provides that a person is not entitled to carer’s allowance if under 16 or receiving full-time education. When enacted, a person who had attained 16 was no longer of compulsory school age. The subsequent extension of compulsory schooling created a small gap between the statutory wording and the legislative purpose.
3. The reference to age 16 must therefore be read as referring to the end of compulsory school age. The statutory purpose was that carer’s allowance should not encourage a child to provide full-time care instead of receiving compulsory education. That purpose applies equally to children educated at home.
4. Home education need not replicate school hours or structure, but it must remain efficient, suitable and full-time under section 7 of the Education Act 1996. The absence of enforcement proceedings did not establish that Ms BC was receiving such education.
5. Regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 addresses attendance at an educational establishment for 21 hours or more and is not exhaustive, as explained in Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699. It did not, however, determine the separate question of compulsory school age.
6. Applying the purposive approach to statutory interpretation discussed in R(Quintavalle) v Secretary of State for Health [2003] 2 AC 687, the reference to age 16 was extended consistently with the statutory purpose. Ms BC could claim carer’s allowance from 29 June 2020, and not before.

• Upper Tribunal (Administrative Appeals Chamber): The appeal from the First-tier Tribunal was allowed. The decision dated 22 February 2021 was set aside for error of law and remade.
• First-tier Tribunal (Social Entitlement Chamber): Held that carer’s allowance could be claimed from Ms BC’s 16th birthday.