Feller, R (on the application of) v Cambridge City Council

This is an appeal against a decision of the Valuation Tribunal for England ("the Tribunal". The Appellant is Dr David Feller, who was a PhD student at the University of Cambridge ("the University") until 2011, when he was awarded the degree. The issue is whether Dr Feller was entitled to be disregarded as a student for Council tax purposes for a period commencing on 1st October 2009, pursuant to Schedule 1 of the Council Tax (Discount Disregards) Order 1992 ("the Order").

Dr Feller appeals against the decision of the Tribunal dated 15th October 2010 that he was not entitled to be disregarded. The Tribunal concluded that Paragraph 4.1(b) of Schedule 1 of the Order means that a student must be required to attend at a particular place in order to qualify for the disregard, and therefore that he did not qualify.

The University's Board of Graduate Studies ("the Board") has published a Code of Practice ("the Code") for graduate research degrees, and the 2008-2009 Code was before the Tribunal.

The Code sets out the University's guidelines for courses examined by scrutiny of an extended research dissertation and oral examination only. It states that the Code is:

Section 3 of the Code is concerned with "Courses." Section 3.2 provides in part;

The chart at 3.4.3 of the Code shows that the earliest date on which a full-time PhD student may submit their thesis is the first date of their 9th term and that they are expected to submit their thesis by the last date of their 12th term (ie just within a maximum of 4 years' full time study).

So far as "residence" is concerned, section 3.4.2 of the Code provides that:

Nothing in that section or in any part of the Code prescribes any places at which the student should physically attend during any part of their study.

Section 9.5 of the Code is headed "Leave to work away" from Cambridge. The last sub-paragraph provides, inter alia, that:

It follows that the Board contemplates the possible grant of leave for "writing up at home" after the 9th term.

The question of overrunning is dealt with in section 10.5.1 of the Code. The opening lines repeat what is said at 3.2, namely that Candidates for the PhD, MSc or MLitt degrees are expected to submit no later than the last day of the 12th term (ie by the end of the fourth year) but then a possible exception is set out;

Where a PhD student does not submit, and no extension is granted, the Code continues at page 41 that:

I pause to say that the expressions "thesis" and "dissertation" are used interchangeably by the University.

Section 10.5.2 of the Code provides for relief from payment of fees for full time PhD students who have not submitted their thesis by the end of the 9th term, and who "are no longer making significant use of University facilities..."

It is only in exceptional cases that the University charges fees to full time PhD students who have not submitted their thesis by the end of the first three years.

The Council has been in discussion with the University for some time, to enable it better to understand the way in which PhD study at the University is intended to work.

Following discussions with the University, the Council has accepted that it would generally regard the statutory requirements in relation to the disregard as satisfied until the end of a PhD student's fourth year, but once the fourth anniversary has passed, it has been the Council's general position that PhD students at the University who have not yet completed their studies and submitted their thesis, but who are required to seek an extension, are not subject to any attendance requirement, and therefore should not be entitled to the benefit of the disregard.

Dr Feller began a (full time) course for the degree of Master of Philosophy at the beginning of October 2005 and successfully completed that course, being awarded the MPhil degree on 14th October 2006.

From the beginning of October 2006 he commenced the (full time) course for the PhD degree. The University regulations permit terms of research spent before commencing the PhD course, including terms of research while studying for the MPhil degree, to be allowed by the Board towards the minimum required number of terms of research for the PhD degree. Such an allowance was granted in Dr Feller's case.

On 20th November 2009 Dr Feller submitted to the Council a Student Status Application Form in order to secure for himself exemption from Council tax for the academic year 2009-2010, by the application of the student disregard under the Order.

On 3rd December 2009 Mr Joseph, the Council Tax Assessment Officer, wrote to Dr Feller refusing his application, and stating:

The letter concluded by stating that Dr Feller could appeal to Mr Mike London, the Council Tax Team Leader.

By letter dated 14th December 2009, Dr Feller appealed to Mr London. In that letter Dr Feller referred to the relevant provisions of the Order, and stated that:

By letter of 29th January 2010 to Dr Feller, Mr London referred to the Order and stated that after discussions and debate with the University, the Council:

Mr London concluded his letter by stating that Dr Feller must demonstrate:

On 24th April 2010 Dr Feller replied, suggesting that the MPhil year did not count as part of the four years' PhD research. I should say that he does not now argue this point.

By letter dated 18th May 2010 Mr London dismissed Dr Feller's appeal, stating that the MPhil year did count as part of the four years' PhD research, and stating that:

By notice dated 5th July 2010, Dr Feller appealed to the Tribunal.

In its decision dated 15th October 2010, the Tribunal dealt with three appeals; that of Dr Feller, and those of Ms C Marx and Dr C Acreves.

Paragraph 13 of the decision states:

I should point out that it is accepted on both sides that although Dr Reid accepted that the appellants were not required to attend specified premises he mentioned the residence requirement to which I have already referred.

In its conclusions the Tribunal stated:

Section 11 (1) of the Local Government Finance Act ("the 1992 Act") provides:

Section 11 (5) provides that schedule 1 to the 1992 Act is to have effect to determine who is to be disregarded for the purposes of council tax discount.

Paragraphs 4 and 5 of schedule 1 to the 1992 Act provide in part as follows:

The conditions have been duly prescribed, and the meanings assigned, by the Council Tax (Discount Disregards) Order 1992 [SI 1992 no. 548] ("the Order "). Regulation 4 provides in part as follows:

Regulation 5 deals with the certificates to be given in accordance with paragraph 5 (2) of schedule 1 to the 1992 Act.

Part 1 of schedule 1 is concerned with the definition of "students" and other allied matters.

Paragraphs 3 and 4 provide in part as follows:

Paragraph 1.a to Schedule 2 to the Order provides that:

On behalf of Dr Feller, Mr Drabble submitted that the Tribunal erred in law in applying the requirements of paragraph 4 of Schedule 1 to the Order personally to Dr Feller, instead of to the PhD course itself on which Dr Feller was enrolled. Mr Drabble submitted that it is paragraph 3 of Schedule 1 that Dr Feller had personally to satisfy. Paragraph 4 defines a full time course of education, and if the PhD course satisfied that definition, Dr Feller qualified for the disregard, because he was enrolled on that course. The PhD course did satisfy the definition in paragraph 4, argued Mr Drabble. In particular, paragraph 4 (1) (b) did not require attendance at any particular place.

Mr Bhose for the Council sought to uphold the Tribunal's decision. He submitted that:

For a course to be a full time course of education it must satisfy all three of the requirements in paragraph 4 (1) of Part 1 of Schedule 1 to the Order; see Wirral BC v Farthing [2008] EWHC 1919 (Admin) at paragraph 21.

Although the focus of the normal requirements is to look at what is required of students as a class, this does not prevent one from considering what is actually required of, or undertaken by, an individual student. This is particularly so in the case of post- graduate qualifications, where students are required to undertake an individual and substantial body of original work. Indeed, in such cases the University's " normal requirements" may in fact be specific to them.

Mr Bhose further relied on R (Fayad) v London South East Valuation Tribunal [2008] EWHC 2531 (Admin), a decision of Mr Neil Garnham QC sitting as a Deputy High Court Judge. That case concerned a PhD student at Imperial College London. At the relevant time Mr Fayed was engaged in writing up his thesis. The judge found that he did not qualify for the disregard, because the requirements of paragraph 4 of Schedule 1 to the Order were not met.

It is appropriate to set out paragraphs 21 onwards in which the judge draws his conclusions;

Mr Bhose drew from the decision in Fayad. the proposition, crucial to his case, that "attendance" in the context of paragraph 4 (1) (b) means attendance at a particular place.

Was the Tribunal correct in deciding that Dr Feller was not entitled to the disregard provided by the 1992 Act? By paragraph 4 of Schedule 1 to the 1992 Act, he was to be disregarded for any particular day if on that day he was a student. "Student" is defined by Regulation 4 of the Order as being a person who is to be regarded as a person undertaking a full time course of education. Paragraph 3 of Schedule 1 to the Order deals with the circumstances in which a person is to be regarded as undertaking a full time course of education, and paragraph 4 defines the term "full time course of education".

It is not disputed by the Council that if his PhD course was a full time course of education as defined by paragraph 4, Dr Feller complied with paragraph 3, because on the relevant day he was enrolled for the purpose of attending that course with the University, which is a prescribed establishment, and that day fell within the period beginning with the day on which he began the course and ending with the day on which he ceased to undertake it.

The real issue in this case centres on paragraph 4. That paragraph defines a full time course of education. His Honour Judge Hodge QC, as he then was, rightly held in Wirral Borough Council v Michael Farthing [2008] EWHC 1919 (Ch) that all the requirements of paragraph 4 have to be complied with for a course to be a full time course of education. If, therefore, any of subparagraphs (a) to (c ) is not complied with, then the course cannot fall within the definition. In the Wirral case, paragraph 4 (1) (a) was not complied with. That is not the case here. The dispute is in relation to paragraphs 4 (1) (b) and (c).

The requirements of paragraph 4 are to be applied to the course which the person is following. In summary, 4 (1) (b) requires that the course be one which persons undertaking it are normally required to attend (whether at the premises of the educational establishment or otherwise) for periods of at least 24 weeks in each academic or calendar year. Paragraph 4 (1) (c) requires that the nature of the course be such that a person undertaking it would normally require to undertake periods of study etc which together amount in each academic or calendar year to an average of 21 hours per week during the periods of attendance mentioned in 4 (1) (b).

These are requirements which are applied to the course itself, and not to any particular person, although I accept that the position of a particular person might be evidence of the requirements of a course on which he is enrolled.

The meaning of paragraphs 4 (1) (b) and (c) is in my view clear. Those paragraphs define the course on which the person applying for the disregard is enrolled. If the course complies with those requirements, it does not matter whether that person was required to attend for 24 weeks per year, or undertake study or tuition averaging 21 hours per week.

It is therefore necessary to ask whether the course Dr Feller was attending was one which fell within 4(1) (b) and 4 (1) (c).

The question can be reduced to the following. Is the PhD course followed by Dr Feller one which persons undertaking it are normally required by the University to attend (whether at premises of the establishment or otherwise) for at least 24 weeks in each academic year, as well as undertaking periods of study or tuition averaging (over the 24 weeks or more per year) at least 21 hours per week?

The requirements of attendance for at least 24 weeks, and periods of study, tuition or work experience averaging at least 21 hours per week, must be satisfied in "each academic year" during which the course subsists.

Mr Bhose for the Council conceded that an average of at least 21 hours of study would be expected from any PhD student throughout the duration of the PhD course.

However, he disputed that the requirement of attendance (whether at premises of the academic establishment or otherwise) for periods of at least 24 weeks in each academic year was met.

The basis of Mr Bhose's argument was that, as Mr Garnham QC held in Fayad, attendance in the context of paragraph 4 (1) (b) means attendance at a particular place, either at the University's premises or at some other place.

Although the Council's position has hitherto been that it would allow the disregard up to the end of the fourth year, Mr Bhose accepted during the hearing that if he was right about the meaning of paragraph 4 (1) (b), and what is required by "attendance", then the PhD course could not qualify under paragraph 4 at all, in any year.

The conclusion that if the Council's interpretation of 4 (1) (b) is correct then students on the PhD course do not qualify for the disregard at any stage of their course, is reached by two routes.

To begin with, there is no evidence before me that at any stage during the course there is any requirement to attend at any particular place. It is true that until the first day of the ninth term, students are required to live within 10 miles of the centre of Cambridge. But both counsel accepted that this provision does not comprise a requirement to "attend" at any particular place.

Further, whatever might be the position in the first three years, Mr Bhose accepted that during the fourth year, which it is expected students are likely to need in order to complete their thesis, there is no requirement to attend at any particular place. As he pointed out, fees are not generally levied on PhD students after their third years, because of the expectation that they will be making less use of University facilities.

Given that the requirements of paragraph 4 (1) (b) must be satisfied in "each" academic year, the fact that the attendance requirement would not be met during the fourth year, which is a normally expected part of the PhD course, would of itself mean that the course as a whole would not satisfy the requirements of paragraph 4.

The word attendance in paragraphs 3 and 4 is used in the context of attending a course; see paragraphs 3 (a) and 4 (1) (b). Does attending a course necessarily connote being at a particular place? It is, as I have said, suggested by the Council that it does.

In his judgement in Fayad, Mr Garnham dealt with the words "(whether at premises of the establishment or otherwise") which follow "concerned to attend" in paragraph 4 (1) (b). He accepted that the use of the words "or otherwise" " just about" made possible the construction of attendance as meaning "give attention to", but said that the only natural meaning of the words in parenthesis indicated a provision that students are normally required to attend at some identified place.

He went on to say that if attendance in sub-paragraph (b) meant "give their attention to" it would be surprising in the extreme if there were a separate discrete condition as to the activities to be carried out during the period of "attendance"-ie in paragraph 4 (1) (c).

I do not myself think that "attend" in this context would naturally mean "give their attention to", because to have that meaning "attend" would usually be used in its intransitive form, as in "attend to...". I think of the various meanings of "attend" that are given in the Shorter Oxford Dictionary, the one most applicable to the present case is "Be present or go to (a meeting, function etc or its location); go regularly to (a) school, (a) church etc."

However, I do not agree that the only natural meaning of the words indicates a provision that students are normally required to attend at some identified place.

It seems to me that in the ordinary use of language a person can attend a course or attend a university without being physically present at a particular place for any particular length of time. I agree with Mr Drabble that in an academic context it is a natural use of language to speak of a person attending a course if he is subject to a degree of supervision, in some appropriate contact with the academic authorities, but doing the substantial part of his work in a library, or at home.

I think the words ("whether at premises of the establishment or otherwise") are significant, in that the words "or otherwise" are used, as opposed to "or elsewhere". The words "or otherwise" in my view reflect the wide range of situations in which the test falls to be applied.

Further, I do not think this is a surprising result, having regard to the fact that there is a separate discrete condition (in paragraph 4 (1) (c)) as to the activities to be carried out during that period of "attendance." It is not surprising that Parliament wished to provide that people attending a course should be required to carry out a minimum of weekly study or work. Otherwise it might be possible for a person to attend a course for many years, and thus claim exemption from council tax, while exhibiting very little commitment to the course.

In seeking to support his argument that the attendance requirement is a requirement to attend at a particular place, Mr Bhose referred to paragraph 4(2) of Schedule 1 to the Order. This provides in part:

Mr Bhose suggested that the fact that paragraph 4(2) provides for work experience to qualify if it is done by a person who is at a particular place, whether it be a place of employment of his or a place where a relevant trade business profession etc is carried on, supports the view that the requirement for attendance in paragraph 4(1) (b) is a requirement to attend at a particular place. I do not agree. To begin with, it is hardly surprising that work experience is envisaged as being done at one of the places described in paragraph 4(2). It is different in that regard from, say, study at home when one is writing up a thesis. Secondly, and in any event, paragraph 4(2) relates to one of the activities referred to in paragraph 4 (1) (c). I do not think it helps define the concept central to 4 (1) (b), which is attendance.

Plainly, in taking the view I do of the meaning of attendance in paragraph 4 (1) (b), I have the misfortune to differ from Mr Garnham. I do so, of course, with reluctance and respect, and only because I feel compelled to a different conclusion. However, I am fortified in my view by cases on other legislation which were drawn to my attention by Mr Drabble, but which do not appear to have been cited to Mr Garnham, namely Wright-Turner v Department for Social Development (2002) NICA 2, a decision of the Northern Ireland Court of Appeal, and Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641 [2002] 1 WLR 2322, a decision of the English Court of Appeal.

Both cases concerned Invalid Care Allowance, and, specifically, the provisions of section 70 of the Social Security Contributions and Benefits Act 1992 ("the Contributions and Benefits Act") and Regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 ("the 1976 Regulations").

Section 70 (3) of the Contributions and Benefits Act provides that a person shall not be entitled to carer's allowance if he is receiving full time education. Regulation 5 of the 1976 Regulations defines the circumstances in which persons are to be regarded as receiving full time education, and provides in part as follows;

In both cases, as Lord Justice Ward said in Secretary of State for Work and Pensions v Amanda Deane [2010] EWCA Civ 699 at paragraph 34, the court had to deal with the issue whether attendance in Regulation 5(1) requires physical presence at the university, and whether hours spent in doing work at home (ie off the university premises) should or should not be taken into account. In both cases the court took the view that physical presence at the university was not required by "attendance", and that home study should, indeed, count.

77. In Flemming, Lord Justice Pill held:

78. Lord Justice Chadwick held:

Although of course the legislative context is different, I find the approach of the courts in Wright-Turner and Flemming of assistance in forming the view that I have.

As Mr Bhose conceded, if it is right that a course can be a full time course complying with paragraph 4 even if it does not require attendance at a particular place, the PhD course for which Dr Feller was enrolled was a full time course as defined.

Given that such is my reading of paragraph 4, it follows that the Tribunal erred in law.

To conclude, Dr Feller was able to place himself within the words of paragraph 4 of Part 1 of Schedule 1 to the Order, and the disregard should have been allowed. In those circumstances, this appeal must be allowed.

MR DRABBLE: My Lord, first of all, in terms of the order, following yesterday's discussion I anticipate it need simply say "appeal allowed".

THE DEPUTY JUDGE: Right. Thank you.

MR DRABBLE: Dr Feller pointed out, in relation to paragraph 1 of your Lordship's judgment, the actual date of the award of the degree was 21 March 2011, as I understand it the thesis was submitted --

THE DEPUTY JUDGE: Right. So was he a PHD student until 2010 or 2011?

MR DRABBLE: 2011.

THE DEPUTY JUDGE: You are a student until you actually get the degree, I suppose.

MR DRABBLE: The period that was in dispute before the tribunal was the period identified by then and would be the period until 2010.

THE DEPUTY JUDGE: Well, I am sure Mr Bhose would not object to my amending my judgment just to get this fact right. "The appellant is Dr Davis Feller who was a PHD student at the University of Cambridge until 2011 when he was awarded the degree." Why do we not just make it simple like that?

MR DRABBLE: My Lord, yes.

THE DEPUTY JUDGE: Right. Thank you very much for that factual clarification.

MR DRABBLE: My Lord, we have an application for costs. A schedule of costs has been served and is agreed.

THE DEPUTY JUDGE: Right.

MR DRABBLE: And, I am afraid to say, consist entirely of my fees and the court fees. The total net is £8,450 and the VAT is £1,650, being a total of £10,090.

THE DEPUTY JUDGE: Thank you very much.

MR DRABBLE: As I say, there is agreement about that.

THE DEPUTY JUDGE: Well, thank you both for conferring on that. Mr Bhose, do you have anything to say about that?

MR BHOSE: My Lord, I do not. Thank you very much.

THE DEPUTY JUDGE: Thank you very much. Well, there will be an order that the appeal be allowed and costs will be awarded in the amount of --

MR DRABBLE: Including VAT, £10,090.

THE DEPUTY JUDGE: £10,090. I think it is to include VAT, is it not?

MR BHOSE: It should do, unless the university can claim the VAT back. I do not know if Dr Reid knows about that? If they cannot recover the VAT they are entitled to it.

THE DEPUTY JUDGE: Very well. There will be an order.

Anything else? Thank you very much.