Secretary of State for Work & Pensions v Deane

You might think that it would not be difficult to determine whether someone was receiving full-time education; but you would be wrong if you had to decide the question with reference to section 70 of the Social Security Contributions and Benefits Act 1992 (“the Act”) and Regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 (“the Regulations”). Your task might not be made much easier if directed to the decisions of the Court of Appeal in Northern Ireland in Wright-Turner v Department for Social Development [2002] NICA 2 and the decision of this Court in Flemming v Secretary of State for Work and Pensions [2002] 1 WLR 2322.

Deciding that question was the problem Judge Mesher, a judge of the Upper Tribunal in the Administrative Appeal Chamber, had to resolve when considering an appeal by Ms Amanda Deane against the decision of the Liverpool Appeal Tribunal which concluded that she was receiving full-time education and was thus no longer eligible for the receipt of a carer’s allowance. With considerable reluctance he allowed that appeal and remitted the matter to a new tribunal for a fresh reconsideration. However he gave the Secretary of State for Work and Pensions permission to appeal to this Court.

Entitlement to a Carer’s Allowance (“CA”) is given by section 70 of the Act, the relevant sub-sections are these:

“70.

– Carer’s allowance

(1)

A person shall be entitled to a carer’s allowance for any day on which he is engaged in caring for a severely disabled person if—

(a)

he is regularly and substantially engaged in caring for that person;

(b)

he is not gainfully employed; and

(c)

the severely disabled person is either such a relative of his as may be prescribed or a person of any such other description as may be prescribed.

….

(2)

In this section, “severely disabled person” means a person in respect of whom there is payable either an attendance allowance or a disability living allowance by virtue of entitlement to the care component at the highest or middle rate or such other payment out of public funds on account of his need for attendance as may be prescribed.

(3)

A person shall not be entitled to an allowance under this section if he is under the age of 16 or receiving full-time education.

…

(8)

Regulations may prescribe the circumstances in which a person is or is not to be treated for the purposes of this section as engaged, or regularly and substantially engaged, in caring for a severely disabled person, as gainfully employed or as receiving full-time education.

(9)

A carer’s allowance shall be payable at the weekly rate specified in Schedule 4, Part III, paragraph 4.”

Part II of the Regulations sets out miscellaneous provisions relating to carer’s allowance and Regulation 5 lies at the heart of this appeal.

“5.

Circumstances in which persons are to be regarded as receiving full-time education

(1)

For the purposes of section 70(3) of the Contribution and Benefits Act, a person shall be treated as receiving full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for 21 hours a week or more.

(2)

In calculating the hours of attendance under paragraph (1) of this Regulation –

(a)

there shall be included the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course; and

(b)

there shall be excluded any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.

(3)

In determining the duration of a period of full-time education under paragraph (1) of this Regulation a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it.”

I need not say much. The respondent, Ms Deane, had been entitled to CA and its predecessor, Invalid Care Allowance (“ICA”), since 1990 as she was not gainfully employed and was regularly and substantially engaged in caring for her daughter who was severely disabled. In a way that compels admiration, she decided to undertake further education and on 25th September 2006 she duly enrolled on and started a BA combined honours degree in English Language and English Literature at the Liverpool Hope University. In December 2006 she notified the CA unit by telephone that she had started what she apparently described as a full-time course at the university, involving her in 12 ½ hours of supervised study per week. The CA unit suspended payment of benefit and sent a questionnaire to the University. The authorised officer within the Registrar & Secretaries Office replied on 5th January 2007, confirming her place on the course which was expected to end on 31st July 2009. Question 5 of the unit’s enquiry was:

“How many hours a week is [the respondent] expected to spend on work that is included on the curriculum of the course at school, college or university? (By work, we mean supervised study at school, college, university or similar educational establishment and includes time spent on work done at home or elsewhere set by a tutor and is part of the course.)”

The reply was 1,080 hours per annum which averages out at 27.69 hours a week over the 39 weeks of the academic year. The answer to the question whether the institution regarded the claimant as being in full-time education was yes.

The decision was then taken on 8th January 2007 superseding the operative decision awarding CA on the ground of a relevant change of circumstances, namely her receiving full-time education. The new decision was that the respondent was not entitled to CA from and including 25th September 2006. She appealed, saying that she was only attending at the university for 12 hours a week and that would reduce in September when she would be attending part-time. She set out her timetable of 12 hours a week and said that 4 hours on a Wednesday would cease in May. She emphasised that the care she gave to her daughter had not been affected. The Secretary of State’s written submission to the Appeal Tribunal concentrated on showing that the case-law required that the supervised study which has to be taken into account in calculating hours of attendance included set work done by a student in her own time, whether on the institution’s premises or not. The Secretary of State submitted that the primary focus should be on the standard amount of time the institution’s authorities expected students to devote to contact hours and supervised hours to complete the study, which in this case was 27.69 hours a week, with the result that she should be treated as receiving full-time education by virtue of Regulation 5.

On the respondent’s behalf it was argued that the figure of 1,080 hours provided by the university was not a reliable figure. First, although the question was restricted to supervised study, it was not certain that the university’s expectations excluded unsupervised study or wider reading. Secondly, the expectation would be geared to a conscientious student completing the course to a creditable standard rather than the minimum necessary to scrape through. It was suggested that the respondent was able to cope with 12 contact hours in the first term given that she had done much of the preparatory reading in advance and already read some of the books on the literature course. She only had five 1,500 word assignments to complete during the year. It was submitted, therefore, that the contact hours with her supervisor, preparation time and the set assignments constituted the whole of the claimant’s supervised study and came to less than 21 hours a week. The written submission on her behalf continued:

“Given that [the respondent] felt that she had covered a lot of the background reading for the literature she calculated that she would be able to complete her study – not to an ideal standard but to an adequate one – by an additional 8 hours a week, giving a total of 20 hours per week. In fact, this caused problems with her course. Her caring responsibilities meant that she did not manage all of the reading for the course and would at best have just managed to pass. In the event, a crisis [the death of a close friend of her daughter] arose in April which added to her caring responsibilities. [The respondent] was unable to sit her examinations. She tried to use the summer vacation to catch up on the study she should have done during the term and will resit this month.

In R(G) 2-02 paragraph 22 it is suggested that for a student who attends for less than 21 hours a week ‘his successful completion of the course may be imperilled’. In fact this is exactly what has happened as a result of [the respondent’s] caring responsibilities.”

Her appeal was heard on 9th October 2007 and it was submitted on her behalf that she had over-estimated her ability to study full-time while caring for her daughter and had underestimated the amount of help she would get from the university. The Appeal Tribunal dismissed her appeal. The statement of reasons concentrated on what was thought (wrongly, it seemed to Judge Mesher) to be a dispute about what counted as supervised study and whether the university’s answer of 1,080 as the expected input included unsupervised study. Having concluded that it did not, the Appeal Tribunal stated:

“The course was undoubtedly a full-time course as accepted by the appellant.

Based upon the information provided by the university this course could not be considered part-time.

The Tribunal concluded that the work done whilst actually attending university could not be taken in isolation as clearly with regard to this course, a period [of] home study is required which forms part of the course and although done at home falls into the category of supervised work.”

Ms Deane was granted leave to appeal primarily on the ground that the Appeal Tribunal had treated the evidence from the university as conclusive, contrary to authoritative case-law.

It was submitted on her behalf that a subjective view of Regulation 5(1) should be taken in which case the claimant had not actually undertaken 21 hours study, but that even on an objective view the standard expectations of an average undergraduate did not amount to 21 hours. The submission on behalf of the Secretary of State was that Regulation 5(1) provides that where the number of hours of activities listed in Regulation 5(2) including the supervised study expected of a claimant by an institution exceeds 21 hours a week, the claimant will be considered to be in full-time education. There was reliance on the decision of Mr Commissioner Bano in CG/3189/1004, where it was said that that was the focus of Regulation 5(1) and the starting point in its application. It was submitted that it was therefore irrelevant that the claimant had here devoted less than 21 hours a week to her course, so the Appeal Tribunal had reached the only conclusion legally open to it.

He allowed Miss Deane’s appeal. He held that the Appeal Tribunal had erred in law because they erroneously focused upon the requirements of the claimant’s course, rather than upon the extent of her actual hours of attendance on the course from time to time. Early in his determination Judge Mesher cogently explained the approach he would himself have taken had he regarded himself free from authority. He said:

“12.

If I were able to approach Regulation 5(1) and section 70(3) of the Social Security Contributions and Benefits Act 1992 free from the burden of the authorities that I discuss below, I would take the following very simple view. Section 70(8) allows regulations to prescribe circumstances in which a person is or is not to be treated as receiving full-time education for the purposes of section 70(3). Regulation 5(1) merely prescribes circumstances in which a person is to be treated as receiving full-time education, not circumstances in which a person is not to be so treated. Therefore, the 21-hour rule provides a convenient means for determining entitlement to CA in some cases, but a person may still be found to be receiving full-time education although not attending a course for 21 hours or more. Finally, and crucially, a person attending a conventional 3-year undergraduate degree course that is regarded as a full-time course by the institution concerned is receiving full-time education regardless of how many regulation 5(2) hours are expected to be or actually are devoted to the course. That appears to have been the view taken by the appeal tribunal of 9th October 2007, as it appears also to have been the view of the Chief Commissioner for Northern Ireland, Judge Martin, at an early stage of Wright-Turner (see paragraph 12 of C2/97(ICA), Appendix 2 to R1/02(ICA)). In addition, although I am not concerned whether the rule expressed in section 70(3) is sensible or fair in the context of the basic qualification for CA, that view would have the merit that anybody in receipt of CA who started on such a course would be able to know exactly where they stood (see Chadwick LJ in paragraph 38 of Flemming, RG, 2/02).

13.

That simple view is one that as a matter of law cannot be adopted at the level of the Upper Tribunal or below. It was expressly rejected by Carswell LCJ in the Northern Ireland Court of Appeal in Wright-Turner Appendix 12 R1/02/ICA):

“Notwithstanding the wording of the regulation which has the appearance of a deeming provision, it appears that this definition was intended to be comprehensive. It was common case that in order to be regarded as being in receipt of full-time education the appellant had to be brought within the definition contained in regulation 5.”

Although that particular passage rather than the eight propositions mentioned below, was not expressly approved by the Court of Appeal in Flemming, the whole approach in the latter case was implicitly based on an acceptance of its correctness. There would have been no point to most of the discussion in the judgments there if my simple view had been regarded as correct. That view would have provided a complete answer against Ms Flemming’s case without all the doubts about how to take account of the lazy or brilliant student who put in low hours of work. For the same reasons, the grammatically unlikely view that in regulation 5(1) “for 21 hours or more a week” refers to the course and not to the student’s attendance of the course cannot be accepted. Social Security Commissioners, and therefore now the Administrative Appeals Chamber of the Upper Tribunal, are bound to follow the approach of the Northern Ireland Court of Appeal as well as that of the English Court of Appeal on questions of legal principle that were necessary to the decision in question (Tribunal of Commissioners Decisions R(SP)1/90 paragraph 15 and R/IB 4/04 paragraphs 29 and 30).”

Having concluded that he could not adopt the approach he thought to be right, he set out to “examine with great care what legal principles were actually adopted in Wright-Turner and Flemming” and recited the 8 propositions I set out at [18] below.

He also had to consider the decision of Mr Commissioner Bano in CG/3189/2004 where he held, and Judge Mesher agreed with this, that the normal starting point in determining the hours of attendance at a course of university education will be evidence from the university authorities with regard to the amount of time which the authorities expect the student to devote to contact hours and supervised study and that it will only be in a very unusual case that the Tribunal will prefer the evidence of a student to the evidence of the college authorities on the question of how much study a student on the course is expected to carry out. Mr Commissioner Bano considered, but Judge Mesher did not accept, that the focus of Regulation 5(1) is on the requirements of the course rather than the way in which the student in fact conducts his studies. Mr Commissioner Bano considered, and again Judge Mesher disagreed, that a claimant cannot establish that he or she is not a full-time student simply by showing that he or she does less work than the course requires. In Mr Commissioner Bano’s view, if a student is enrolled on a course requiring contact and supervised study time in excess of 21 hours and the student falls within the normal range of abilities and entry qualifications of students for whom the course is intended, in the absence of any special circumstances, the student should generally be regarded as being in receipt of full-time education.

In the result, Judge Mesher arrived at this conclusion:

“The test in regulation 5(1)

32.

In my view the most natural reading of the words in regulation 5(1) of the ICA Regulations is that they are directed to attending a course for 21 hours or more, in the sense of time actually spent in the activities specified in paragraph (2). That is the reading in fact supported by the judgments in Wright-Turner and Flemming. Evidence as to the time that the authorities of the educational establishment in question expect or require a student to spend in the specified activities is important and relevant and may, depending on all the circumstances, lead to doubt about the reliability of a particular student’s evidence that significantly less time is actually spent, but the fundamental test in law remains the time actually spent by the student. In ICA and CA cases, claimants will often have a ready explanation for having spent significantly less time on study than authorities expect, in the burden imposed by their substantial caring responsibility. That distinguishes such cases from that of a student who simply relies on laziness or an ability to get through work quickly. However, the very readiness of the explanation means that it may need to be tested carefully …”

The Secretary of State sought and was granted permission to appeal by Judge Mesher on two grounds:

The first is Wright-Turner v Department for Social Development (2002) NICA 2, the decision of the Northern Ireland Court of Appeal. As Carswell LCJ said, the appellant’s claim had a complex history and it is probably necessary to spend a moment to examine precisely how the matter came to the Court of Appeal and what the issues before the Court were. This appellant was looking after her mother. She was studying for an arts degree at Queen’s University, Belfast, claiming that her course required only nine hours of study whereas the Dean of the Faculty expected her to undertake approximately thirty-six hours of work per week comprising of a mixture of lectures, tutorials and independent study. An adjudication officer disallowed her appeal on the grounds she was receiving full-time education. On appeal the Appeal Tribunal held that lectures and tutorials took up only 13 hours a week and the only supervised study time consisted of a few hours each semester researching and writing up an essay. The time she spent studying on her own was to be regarded as unsupervised. That led to an appeal to the Social Security Commissioners who held that the Tribunal had failed to apply the correct test for deciding whether independent study time should be classified as supervised or unsupervised and he held, in line with decisions of the Social Security Commissioners in England that study can be regarded as supervised at University level if work is set by a supervisor and done privately in the student’s own time. So the matter went back to a differently constituted Appeal Tribunal. It held that in the appellant’s Faculty one hundred and twenty hours per module was considered necessary by the University, equating to twenty-four hours a week. This included nine hours spent in direct contact either at lectures or at tutorials, the balance being spent in supervised study, which did not mean that a supervisor was physically present, but consisted of study by the appellant at the time and place of her choosing and for periods of her choosing, of work set by her supervisor. Over the academic year her average weekly study including direct contact exceeded twenty-one hours. The Appeal Tribunal found as a fact that to meet the basic requirements of the course she had to spend in or about twenty-four hours a week in instruction and supervised study and that it was likely that her study time exceeded that, although it could not be quantified more precisely. The Appeal Tribunal directed itself that:

“By supervised study it is not meant that a supervisor is physically present but consists of study by the claimant at a time and place of her choosing and for periods of her choosing of work set by her supervisor.”

Mrs Commissioner Brown dismissed an appeal against that decision.

The Commissioner nonetheless sought the opinion of the Court of Appeal on two questions of law:

“(1)

Was I correct in holding that no error arose in relation to the tribunal’s interpretation of ‘supervised’ and ‘unsupervised study’ in regulation 5(2) of the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 1976; and (2) did I err in law in not upsetting the said tribunal’s finding of fact that the appellant spent an average of over 21 hours per week in study over the academic year?”

Giving the judgment of the Court Carswell LCJ said:

“It might be reasonably straightforward in most cases to determine whether a university student is to be regarded as in receipt of full-time education, but that determination is made more difficult by the fact that in pursuance of a power contained in section 70(8) of the 1992 Act the Department of Health and Social Security made regulations prescribing in what circumstances a person is or is not to be treated as receiving full-time education. These were no doubt designed to facilitate the task of adjudication officers in achieving consistency of decision among applicants for invalid care allowance, but they are so framed as to cover persons receiving education in a wide range of schools, colleges of further education and universities. They are not specifically designed for university students or apt for their circumstances, and their effect is to increase rather than reduce the difficulty of determining whether any student comes within the definition. [He then set out Regulation 5.] …

Notwithstanding the wording of the regulation, which has the appearance of a deeming provision, it appears that this definition was intended to be comprehensive. It was common case that in order to be regarded as being in receipt of full-time education the appellant had to be brought within the definition contained in Regulation 5.”

The Court said of the construction of regulation 5 that:

“It is undeniable that there are difficulties whichever construction one adopts [for the appellant that supervised study must be carried out on the University premises; and for the respondent that supervised study was that undertaken by a student under the direction of a tutor or supervisor.]

…

It is not easy to discern the policy reasons behind the framing of the exclusions from benefit and it is tempting to suppose that they have simply been copied from other areas of social security law without giving sufficient consideration to the reasons for enacting them in respect of invalid care allowance. … In view, however, of the clear conclusions which we have reached on the construction of Regulation 5 we do not find it necessary to express a definite opinion on the policy behind the exclusions, which does not determine our decision.

We shall express our conclusions in a series of propositions, in as succinct a form as possible, which we hope will provide guidance for tribunals and Commissioners. We shall refrain from giving examples, which, as Mr Commissioner Jacobs observed at paragraph 36 of his decision in CG/5519/1999, are more likely to cause problems in later cases than to assist in understanding how to apply the legislation to the facts of a particular case. These conclusions are as follows:

1.

Section 70(3) of the 1992 Act disentitles from receipt of an allowance a person who is receiving full-time education. If Regulation 5 is interpreted in a way which excludes from its ambit the large majority of university students, who on any ordinary classification are regarded as full-time students, then it is unlikely that that interpretation is correct.

2.

The words “attends” and “supervised” are ordinary English words, which take their meaning from their context.

3.

That context varies, depending on the educational level of the establishment at which the claimant is receiving education.

4.

Attending a course of education at a university means engaging in the academic activities required of those who are enrolled in the course.

5.

One component of a course of education at a university is study of the subject matter of the course, which may be carried on by the students at times and places of their own choosing.

6.

Where that study is in discharge of the requirements of the course, as prescribed by those who conduct it, it constitutes supervised study within the meaning of Regulation 5. It does not have to be carried out on university premises or in the physical presence of a supervisor.

7.

Ascertainment of the hours of attendance at a course of education is a question of fact, to be determined by the adjudicating officer or tribunal. In doing so they will have regard to the university’s requirements of attendance at the formal contacts specified in Regulation 5(2)(a), any estimate furnished by the university authorities of the supervised study time required to complete the course, the claimant’s own testimony and any other source of material evidence.

8.

The tribunal of fact should ordinarily focus primarily on the standard amount of time which the university authorities expect students to devote to contact hours and supervised study in order to complete the course. Some students, blessed with the ability to work more quickly than average, will get through the prescribed reading in less than the notionally allotted time, while some, less fortunate or perhaps more thorough and conscientious, will take longer. It is notorious that others will do a minimum of work during the academic year and seek to pass their examinations with a last-minute burst of effort, leaving the average hours worked over the year materially below the level expected by the university authorities.

We also conclude that Mrs Commissioner Brown applied the law correctly … We therefore answer the first question “Yes”.

…

We therefore are of the opinion that the Commissioner did not err in law in declining to upset the tribunal’s finding of fact, and we answer the second question “No”.”

The second case which requires careful analysis is Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641, [2002] 1 W.L.R. 2322. There the claimant for invalid care allowance looked after her severely disabled mother and as a result of her commencing a degree course at the University of Glamorgan, an adjudication officer held she was no longer entitled to that benefit. Her appeal to the Appeal Tribunal was dismissed. On further appeal to Mr Commissioner Jacobs, he set aside the Tribunal’s decision on the basis it had given insufficient reasons and had failed to deal adequately with the arguments presented to it. He remitted the case to a new Tribunal for redetermination, rejecting the claimant’s contentions that the use of the word “attends” in Regulation 5(1) of the Regulations meant that only time spent actually on the premises be counted towards the 21-hour minimum period and that “supervised study” in Regulation 5(2) meant only study time spent in the direct presence of a supervisor and excluded other periods of study. One should note that in coming to his conclusions Mr Commissioner Jacobs considered the differing views held by commissioners and one of the decisions with which he agreed was the decision of Mr Commissioner Martin in Northern Ireland. Mr Commissioner Jacob decided the case before him prior to the Northern Ireland Court of Appeal having to adjudicate upon the issue. In the judgment of Pill L.J.:

“[5] The only issue the claimant seeks to argue is whether she was "receiving full-time education". On her behalf, the basic submission is that the word "attends" in regulation 5(1) requires physical presence at the premises of the University. Hours spent studying at home should not be taken into account. It is also submitted that private study at home is not "supervised study" within the meaning of regulation 5(2). Supervised study does not include time spent in private study unless that study is under the supervision (direct or indirect) of a tutor at the University.

[6] Both parties seek guidance as to the meaning of the words "attends" and "supervised study" and the test which should be applied when considering whether someone is "receiving full-time education".”

Chadwick L.J. framed the issue in this way:

“[26] … The narrow issue raised by this appeal is whether the Commissioner was right to direct the tribunal to approach the task which they had been set on the basis that work set as preparation for discussion in class or for written work would probably count as supervised study without drawing a distinction between preparatory work done on the premises of the educational establishment and work done off those premises. The claimant contends that hours spent in doing work off the premises (with some limited exceptions) cannot be taken into account.”

It seems to me, therefore, that the specific issues with which the Court of Appeal were concerned here were essentially the same as those the Northern Ireland court had to decide. Pill L.J. held:

“[14] I do not consider that it is possible to detect an overall statutory purpose which throws significant light on the construction of the words in issue. Each of the criteria to be satisfied to establish an entitlement to invalid care allowance is defined in a specific and detailed way. The statutory purpose is that those who meet the criteria are entitled to the allowance and those who do not meet them are not entitled. I would however approach the expression "full-time education" with some presumption that a conventional three-year undergraduate degree course of education offered by a university comes within that expression.

[15] Regulation 5(1), including as it does the word "treated", is a deeming provision and covers only those who come within the requirement specified. What is required is attendance for 21 hours or more a week and regulation 5(2) provides what hours shall be included for that purpose. …

[17] I would construe the expression "attends a course of education at a university" in the sense of being enrolled upon such a course at the university. …

[18] If, as I would hold, study away from the premises is capable of constituting "hours of attendance" under the regulation, the second question is what constitutes "supervised study" within the meaning of regulation 5(2). …

[19] Study may, however, be supervised without the supervisor necessarily being present at the time of study. The test of what is "supervised study" does not depend on the period of time for which the supervisor is present with the student. The work must be study directed to the course of education and the curriculum of the course involved. … Work done to meet the reasonable requirements of the course can usually be regarded as supervised study. …

[21] It follows from the comments I have ventured to make that I agree with the propositions stated by the Court of Appeal in Northern Ireland in Wright-Turner’s case … I also agree that ascertainment of the hours of attendance is a question of fact to be determined by the adjudicating officer or tribunal. Evidence from the university authorities as to the amount of time they expect students to undertake to complete the course is likely to be important evidence. …

[22] Evidence from the student himself as to the time he spends to meet the requirements of the course is not excluded. In the latter part of proposition 8, the Court attempted to deal with the question arising from the varying abilities and conscientiousness of students of all generations. Some students on a course of education will spend more time studying than others do. A fact-finding tribunal should, however, scrutinise with care evidence from a student who claims that he attends the course for significantly fewer hours than the university authorities expect of him. Moreover, on many courses of education it may be a foolhardy student, unless a very brilliant one, who genuinely claims that he attends, within the definition, for fewer than 21 hours a week. His successful completion of the course may be imperilled. The more structured the course, with, for example, modules, detailed course work and regular assessment, the easier it is likely to be to make the determination of fact. …

[24] This Court is unaccustomed to giving general guidance when not making a decision on specific facts. As requested, I have endeavoured to do so and the task has been made easier by the fact that I respectfully agree with the approach of Carswell LCJ in Wright-Turner’s case …”

Chadwick L.J. held:

“[27] … regulation [5] was made for the purpose of prescribing the circumstances in which a person is or is not to be treated … as receiving full-time education and must be construed in that context. …

[31] … there is no basis for construing the phrase "attends a course of education at" as imposing a requirement of physical attendance at the premises of the educational establishment. …

[33] … Whatever the true extent of the phrase "supervised study" – and whether that phrase be given a liberal or a restricted meaning – it is plain that supervised study is private study which is subject to some form of supervision. No satisfactory reason has been advanced to explain why it should be a relevant consideration, in determining whether a person is to be treated as receiving full-time education, whether private study which would otherwise qualify as supervised study is undertaken on or off the premises of the educational establishment. …

[36] … I would reject the submission that hours spent in supervised study off the premises cannot be taken into account. …

[37] … I agree with Lord Justice Pill that the test of what is "supervised study" does not depend on the period of time for which the supervisor is present with the student …

[38] That is sufficient to answer the narrow question raised by this appeal. But I agree that it would be unsatisfactory to dispose of this appeal without an indication, at least in general terms, whether the approach of the Court of Appeal in Northern Ireland in Wright-Turner v Department for Social Department 11 January 2002 should be followed by appeal tribunals in England and Wales. In my view, that approach is broadly correct and should be adopted. I would draw particular attention to three factors identified in the judgment of Carswell LCJ. First, that study which is in discharge of the requirements of the course, as prescribed by those who conduct it, constitutes supervised study for the purposes of regulation 5. I would add that, in my view, time spent in the private study which is a necessary adjunct to physical attendance at lectures and laboratory work falls within that description. Secondly, ascertainment of the hours for which a person attends a course of education is a question of fact, to be determined by the Secretary of State or a tribunal. Thirdly, the tribunal of fact should have particular regard to the amount of time which those who conduct a course expect a student to devote to contact hours and supervised study in order satisfactorily to complete the course. I recognise that the "average" student is an elusive concept, that the less able but diligent student will take longer than the time expected, and that the more able (or less diligent) student will take (or devote) less than the time expected. But it is plainly desirable that a person with care responsibilities who is contemplating a course of education should know in advance whether, by attending the course, he or she will be treated as receiving full-time education. A tribunal of fact should, I think, be very slow to accept that a person expects or intends to devote – or does, in fact, devote - significantly less time to the course than those who have conduct of the course expect of him; and very slow to hold that a person who is attending a course considered by the educational establishment to be a part-time course is to be treated as receiving full-time education because he devotes significantly more time that that which is expected of him.”

Longmore L.J. agreed with both judgments and did not wish to add anything of his own.

This issue raises these questions:

The relevant passage is set out at paragraph [17] above. The material words in the concluding paragraph of the quotation are, “… it appears that this definition was intended to be comprehensive. It was common case that in order to be regarded as being in receipt of full-time education the appellant had to be brought within the definition contained in Regulation 5.”

I am satisfied that we are not obliged to follow decisions of the Northern Ireland Court of Appeal, but we must accord them the greatest respect. Where the decision relates to a statutory requirement which applies or which is the same as that which applies in England and Wales, then we ought to follow that Court in order to prevent the wholly undesirable situation arising of identically worded legislation on the other side of the Irish Sea (or the other side of the Tweed) being applied in inconsistent ways. The same approach as we adopt for cases of the Court of Session in Scotland should be followed in the case of Northern Ireland. In Abbott v Philbin (Inspector of Taxes) [1959] 1 Ch. 27 Lord Evershed M.R. said at p. 49:

“I ask myself, therefore, having expressed such doubts as I have with all respect to the learned judges in Scotland, ought this court now to answer those two questions in a precisely opposite sense? We in this court are not bound to follow the decisions of the Court of Session, but the Income Tax Act and the relevant Finance Act applying differently both north and south of the border, and, if we were to decide those questions in a sense diametrically opposite to the sense which appeal to the Scottish judges, we should lay down a law for England in respect of this not unimportant matter which was completely opposite to the law which was being applied on exactly the same statutory provisions north of the border. I cannot think that that is right. In a case of a revenue statute of this kind, I think it is the duty of this court, unless there are compelling reasons to the contrary, and while expressing such doubts as we feel we ought to, to say that we follow the Scottish decision.”

In the House of Lords, as reported at [1961] A.C. 352, Lord Reid observed at 373:

“In the present case the Court of Appeal, though not bound to do so, very properly followed the decision of the Court of Session … I say very properly because it is undesirable that there should be conflicting decisions on Revenue matters in Scotland and England.”

In R (SB) 1/90 the Commissioners held that identically worded provisions operating in both Northern Ireland and Great Britain should be interpreted uniformly. I agree.

It seems to me that the point was conceded. Carswell LCJ records that it was “common case” that the appellant had to be brought within the definition contained in Regulation 5. To say “it appears” that the definition was intended to be comprehensive is not the most vigorous assertion of a finding being made to that effect. It reads more like an acceptance of the concession which is then recorded. Despite the attractive submission of Mr Paul Draycott, for the respondent, I do not see that the two paragraphs in the judgment which I have cited record conflicting arguments advanced by counsel and a resolution of the disputed point. True it is that the Lord Chief Justice accepted that it might be reasonably straightforward in most cases to determine whether a university student was to be regarded as in receipt of full-time education and his reservation that that determination was made more difficult by the fact that regulations had been prescribed does not cause me to alter my view that the court merely assumed that the regulation was comprehensive. I have to confess that when I read the Act and the regulations for the very first time, my initial impression was that one did have to resort to the regulations to find the answer, so I am not surprised the matter appears to have been accepted without argument. After much anxious thought I have changed my mind for the reasons I give below. That is not to say for a moment that I consider that the judgment was given per incuriam. We cannot duck away from it for that reason.

If, however, the point was conceded, then we are not obliged to follow it. In In re: Hetheringdon (deceased) [1990] 1 Ch. 1, Sir Nicholas Browne-Wilkinson V.-C held at p. 10:

“In my judgment the authorities clearly established that even where a decision of a point in a particular sense was essential to an earlier decision of a superior court, that that superior court merely assumed the correctness of the law on a particular issue, a judge in a later case is not bound to hold that the law is decided in that sense.”

In R (Kadhim) v Brent Housing Board [2001] Q.B. 955, Buxton L.J. held:

“33.

We therefore conclude, not without some hesitation, that there is a principle stated in general terms that a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before or consideration by that court.

…

38.

Like all exceptions to, and modifications of, the strict rule of precedent, this rule must only be applied in the most obvious of cases, and limited with great care. The basis of it is that the proposition in question must have been assumed, and not have been the subject of decision. … And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision.”

Despite the words of warning from Buxton L.J., I am satisfied that this was a concession and that we are free to depart from it. As his Lordship pointed out, we start from the position that the court would be concerned to address the matters essential to its decision and that gives rise to the next question: was this part of the ratio of the judgment or was it an obiter dictum?

It is trite that a case is only authority for the decision of law it contains, its ratio decidendi. In Kadhim the court accepted as “the clearest and most persuasive guidance” the view of Professor Cross in Cross and Harris, Precedent in English Law, 4th ed. (1991), p. 72: “The ratio decidendi is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him.”

To follow the line of reasoning, one must start with the issue the court had to decide. In Wright-Turner the issue was quite clear from the first of the two questions of law the court was required to decide, namely, the proper interpretation of “supervised” and “unsupervised study” in Regulation 5(2) of the Northern Ireland regulations. That was a narrow inquiry. It may have been part of a process of reasoning which led to the Appeal Tribunal’s conclusions on the broad question of whether or not the claimant was receiving full-time education but the broad question, as such, was not being addressed. It follows that the court’s views as to whether it might or might not be reasonably straightforward in most cases to determine whether a person is to be regarded as being in receipt of full-time education as well as the view that to be regarded as being in receipt of full-time education she had to be brought within the definition contained in Regulation 5 were both obiter. For that reason we are free to differ if we think it right to do so.

It is noteworthy Pill L.J. did not cite the passages in the judgment with which we are now concerned. He confined himself to those I set out at [18] above. In paragraphs 21 and 24 Pill L.J. agreed “with the proposition stated by the Court of Appeal in Northern Ireland”, but no more. That does form part of the ratio of his decision. When he said, in paragraph 15 that Regulation 5(1), including as it does the word “treated”, is a deeming provision and covers only those who come within the requirement specified, he did not deal with the point at issue here, namely whether or not the regulation is all-embracing. Nor did Chadwick L.J. touch upon it in paragraph 27 of his judgment (see [20] above). They did not need to do so: the issues before the court were the narrow issues relating to whether “attends” in Regulation 5(1) requires physical presence at the university and whether hours spent in doing work at home (i.e. off the university premises) should or should not be taken into account. The case therefore turned on the meanings to be given to the words “attends” and “supervised study” in the regulations. Nothing in the judgment in Flemming compels me to hold that I am bound by anything in the decision in Northern Ireland that the regulation is exhaustive.

It can be so read. As I have said, on my first reading that was the preliminary view I formed. I am now persuaded otherwise for these reasons.

I start with section 70(3) itself:

“A person shall not be entitled to an allowance under this section if he is … receiving full-time education.”

It is written in plain English and the ordinary meaning of the words are clear. As I began this judgment one might think one is easily able to recognise that an undergraduate is receiving full-time education if the course on which he is enrolled is a typical degree course offered by the University as, and treated by the general body of students as, a full-time course. An individual on the course should not ordinarily be treated differently from his fellow undergraduates. Lord Carswell was thus surely correct to observe:

“It might be reasonably straightforward in most cases to determine whether a university student is to be regarded as in receipt of full-time education …”

Judge Mesher certainly thought:

“Finally, and crucially, a person attending a conventional three-year undergraduate degree course that is regarded as a full-time course by the institution concerned is receiving full-time education regardless of how many regulation 5(2) hours are expected to be or actually are devoted to the course.”

We can all recognise an elephant when we see it. The question then is whether the regulations force us to deny what we are seeing.

When considering the regulations it is useful to recall certain fundamental factors described in section 59 of Bennion on Statutory Interpretation (5th edition) as follows:

“Underlying the concept of delegated legislation is the basic principle that the legislature delegates because it cannot directly exert its will in every detail. All it can in practice do is lay down the outline. This means that the intention of the legislature, as indicated in the outline (that is the enabling Act), must be the prime guide to the meaning of delegated legislation and the extent of the power to make it. …

The delegate is not intended to travel wider than the object of the legislature. The delegate’s function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention.”

In other words, the regulations are subservient to the enabling Act.

In this case the enabling section demands careful consideration. Under section 70(8) the regulations may prescribe the circumstances not only in which a person is to be treated as receiving full-time education, but also the circumstances when he is not to be so treated, repeating the emphasis rightly made by Judge Mesher. The same power is given to prescribe whether the claimant is caring for a disabled person and whether he is gainfully employed.

Turning to the regulations themselves, they provide as follows, with emphasis added by me:

“4.

Circumstances in which persons are or are not to be treated as engaged or regularly and substantially engaged in caring for severely disabled persons

(1)

… A person shall be treated as engaged … in caring … if, and shall not be treated as engaged … in caring … unless, …

5.

Circumstances in which persons are to be regarded as receiving full-time education

(1)

… A person shall be treated as receiving full-time education …

…

8.

Circumstances in which a person is or is not to be treated gainfully employed

(1)

… A person shall not be treated as gainfully employed unless … and … shall be treated as gainfully employed … if …”

The contrast both in the side notes and text between regulations 4 and 8 on the one hand and Regulation 5 on the other is stark. It compels the conclusion that the circumstances described in Regulation 5 prescribe only when a person is receiving full-time education and Regulation 5 does not dictate that a person will not be deemed to be in receipt of full-time unless those conditions are met. If, therefore, a person may, on other criteria, be in full-time education even if the criteria in Regulation 5 are not satisfied, then Regulation 5 cannot be exhaustive. If it is clear on the ordinary meaning to be given to section 70(3) that a person is in fact receiving full-time education, then one need not resort to Regulation 5 to see whether he is to be so treated.

Whilst Judge Mesher was in obvious difficulty in ignoring the authorities in the Court of Appeal, I am satisfied for the reasons set out that this Court is not constrained to follow the dicta either in Wright-Turner or in Flemming. In my judgment Regulation 5 is not exhaustive of the circumstances in which a person will be treated as being in full-time education.

Under Regulation 5(1) a person is treated as receiving full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for twenty-one hours a week or more a week. Under Regulation 5(2) in calculating the hours of attendance there shall be included the time spent receiving instructional tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course.

Judge Mesher concluded in paragraph 32 of his decision that the most natural reading of the words of Regulation 5(1) is that they are directed to attending a course for twenty-one hours or more, in the sense of time actually spent in the activities specified in paragraph (2).

The consequence of Judge Mesher’s approach is that entitlement to CA is dependent upon whether the student is hard working or lazy, brilliant or less able, ambitious or complacent, over-confident or over-cautious and there seems to be no reason of policy or fairness for drawing such distinctions. That is the case advanced by Mr Tim Buley for the Secretary of State. For the respondent, Mr Paul Draycott offers the equally compelling submission that it would be unjust to deny entitlement to the student who manages to fulfil her caring responsibility of more than 35 hours a week by reducing the amount of study time to less than 21 hours a week even if enrolled on a so-called full-time university course.

In my judgment one should test Judge Mesher’s conclusion against the propositions in Wright-Turner and Flemming . These points emerge from an application of Carswell LCJ’s eight principles:

I must also test Judge Mesher’s interpretation against the views of this Court in Flemming. In paragraph [21] of his judgment, Pill L.J. agreed with Lord Carswell, in particular in that in deciding this question of fact the evidence from the university authorities as to time expected to be undertaken by the student is likely to be so important that the Tribunal should focus on it.

Looking at paragraph [22] of his judgment, I venture to think that Pill L.J. was not of the view that actual hours were the answer. If that was to be the test, it is not likely that he would have said, as he did, “Evidence from the student himself as to the time he spends to meet the requirements of the course is not excluded.” Far from it not being excluded, it would be essential if the calculation depended on actual hours.

Chadwick L.J. rightly pointed out in paragraph [28] that the phrase in Regulation 5 is “receiving full-time education by attendance” not “receiving education by full-time attendance”. In other words, the student may be receiving full-time education without full-time attendance, that is to say, without spending the hours the university authorities consider necessary to complete the course.

Chadwick L.J. also agreed in paragraph [38] of his judgment – and I bear in mind that these observations may well be obiter - that “the tribunal of fact should have particular regard to the amount of time which those who conduct a course expect a student to devote to contact hours of supervised study in order satisfactorily to complete the course.” He went on to warn, and I totally agree with him:

“… it is plainly desirable that a person with care responsibilities who is contemplating a course of education should know in advance whether, by attending the course, he or she will be treated as receiving full-time education. A tribunal of fact should, I think, be very slow to accept that a person expects or intends to devote - or does, in fact, devote - significantly less time to the course than those who have conduct of the course expect of him; and very slow to hold that a person who is attending a course considered by the educational establishment to be a part-time course is to be treated as receiving full-time education because he devotes significantly more time that that which is expected of him.”

As I read Regulation 5, there is a tension between paragraph (1) and paragraph (2). Regulation 5(1) looks to the period during which the person attends a course of education at the university. By enrolling on the course the student implicitly recognises and accepts the university’s estimate of the time it is expected to take to cover the course. This paragraph has an objective ring to it. On the other hand, when Regulation 5(2) refers to “time spent”, the language is of time actually being spent on the defined activities, a subjective flavour. It should, however, be noted that such time as is actually spent on these activities is but a matter to be included in calculating the hours of attendance as Regulation 5(2) prescribes only that “in calculating the hours of attendance … (a) there shall be included the time spent …”. If time spent is one factor to be included in the calculation, there must be other factors. Actual time is not the end of the matter. Hence the need to have regard to the demands of the course and the nature and extent of what is being provided – the list of considerations in Lord Carswell’s fourth proposition. I appreciate this is not a helpful test. It does not assist those who have to make the decision to say to them that they must look at everything to decide when a person is in full-time education when there is no clear guidance as to what constitutes full-time education. Regulation 5 may describe what full-time education is, but it does not help resolve why what looks like full-time education should not be treated as just that.

In my judgment therefore, concentration on the hours actually spent is the wrong approach. To construe Regulation 5 consistently with section 70(3) of the Act, the fundamental question is whether the applicant for CA “is receiving full-time education”. A student will “receive” that which is provided. If in ordinary circumstances the course upon which the student is enrolled is one offered as a full-time university course, as opposed to a part-time university course, then there must be, as Pill L.J. put it, “some presumption” that the recipient is in full-time education. There are always exceptions to the rule, for example, the student granted exemptions from part of the course but the task of the fact-finding tribunal is, having balanced what is offered and what is 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 by way of testing the conclusion, is this applicant receiving full-time education?

That may not be a difficult question to answer in the case of university students. It will be more difficult, perhaps, when the student is attending a school or other educational establishment on courses other than well-recognised degree courses. Regulation 5 has undoubtedly raised difficult questions of construction and application. Whether the criticisms of it call for some review by the rule-making body is a matter for that body. If the rationale ever was that the carers embarking on full-time education would receive financial support from the education authorities to compensate for the loss of CA, those days are long gone. University students now leave university with overdrafts. How Ms Deane was expected to be able to care for her child while she was in full-time education I do not know. Sadly for her, and notwithstanding my sympathy for her, I have to conclude that Judge Mesher erred in setting the test for the calculation of twenty-one hours to be time actually spent in the activities specified in paragraph 2 of Regulation 5. On the other hand his instincts for the right decision as set out at [10] were absolutely correct and he would have given effect to them had he not been constrained by authority from which I feel able to depart. I would therefore allow the appeal and reinstate the decision of the Appeal Tribunal that Ms Deane was not eligible for CA.

I agree.

I also agree.