Education – Carer's allowance – Courses – Full-time students

Secretary of State for Work and Pensions v Amanda Deane: CA (Civ Div) (Lords Justices Ward, Hughes, Lady Justice Hallett): 23 June 2010

The appellant secretary of state appealed against a decision of the Upper Tribunal that the respondent (D) was eligible for carer’s allowance.

D had been awarded carer’s allowance for looking after her disabled daughter. D later started an undergraduate course, and the university informed the carer’s allowance unit that D was expected to spend 1,080 hours per annum, which was over 27 hours per week, on the course. D’s benefit was stopped, pursuant to section 70(3) of the Social Security Contributions and Benefits Act 1992, on the basis that she was receiving full-time education as defined by regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976. The appeal tribunal found against D. The Upper Tribunal held that the appeal tribunal had erred in law as it erroneously focused on the requirements of D’s course, rather than upon the extent of her actual hours of attendance on the course, and that the most natural reading of the words of regulation 5(1) was that they were directed to attending a course for 21 hours or more a week, in the sense of time actually spent in the activities specified in regulation 5(2). The issues were whether (i) regulation 5 was exhaustive of the circumstances in which a person would be treated as being in full-time education; (ii) the hours during which a ­person attended a course of ­education at a university were to be calculated by reference to the actual hours spent in the activities specified in regulation 5(2).

Held: (1) Regulation 5 was not exhaustive of the circumstances in which a person would be treated as being in full-time education. The contrast in the side notes and text between regulations 4 and 8 on the one hand and regulation 5 on the other was stark. It compelled the conclusion that the circumstances described in regulation 5 prescribed only when a person was receiving full-time education and regulation 5 did not dictate that a person would not be deemed to be in receipt of full-time education unless those conditions were met. If, therefore, a person may, on other criteria, be in full-time education even if the criteria in regulation 5 were not satisfied, then regulation 5 could not be exhaustive. If it was clear on the ordinary meaning to be given to section 70(3) that a person was in fact receiving full-time education, then one need not resort to regulation 5 to see whether he was to be so treated. There was nothing in the judgment of Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641, [2002] 1 WLR 2322 to hold that the instant court was bound by the decision in Wright-Turner v Department for Social Development, unreported 11 January, [2002] CA (NI) [2002] that the regulation was exhaustive, Flemming and Wright-Turner considered. The court’s views in Wright-Turner as to whether a person could be regarded as being in receipt of full-time education were obiter.

(2) The concentration on the hours actually spent was the wrong approach. To construe regulation 5 consistently with section 70(3) of the act, the fundamental question was whether the applicant for carer’s allowance was receiving full-time education. A student would receive that which was provided. If in ordinary circumstances the course on which the student was enrolled was one offered as a full-time university course, as opposed to part-time, then there had to be some presumption that the recipient was in full-time education, Flemming applied. There were exceptions to the rule, for example, if the student was granted exemptions from part of the course, but the task of the fact-finding tribunal was, having balanced what was offered and what was expected of the student against the student’s actual performance of the demands made by the course, to look at the matter in the round and ask whether that person was receiving full-time education. Accordingly, the Upper Tribunal had erred in setting the test for the calculation of 21 hours as time actually spent in the activities specified in regulation 5(2). In the circumstances, D was not eligible for the carer’s allowance.

Appeal allowed.

Tim Buley (instructed by in-house solicitor) for the appellant; Paul Draycott (instructed by Merseyside Welfare Rights Advice Centre) for the respondent.