Secretary of State for Work & Pensions -v- Deane

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Deane v Secretary of State for Work and Pensions

[2010] EWCA Civ 699; [2010] WLR (D) 162

CA:

Ward, Hallett, Hughes LJJ: 23 June 2010

In determining whether a claimant seeking Carer’s Allowance was “receiving full-time education”, so as to be excluded, it was erroneous to ask how many hours were actually spent on the activities which were defined within the applicable Regulations.
The Court of Appeal so stated when allowing the appeal of the defendant, the Secretary of State for Work and Pensions, from a decision of Upper Tribunal Judge Mesher, sitting in the Upper Tribunal Administrative Appeal Chamber on 9 March 2009 [2009] UKUT 46 (AAC), allowing the appeal of the claimant, Amanda Deane, from a decision of the Liverpool Appeal Tribunal which on 9 October 2007 had held that she was receiving full-time education and was thus no longer eligible for the receipt of a Carer’s Allowance. The claimant had been entitled to the allowance but had commenced a university course while continuing to care for her daughter, but her benefit had been suspended in light of a relevant change of circumstances. The judge had held that the appeal tribunal had erred in law because it had wrongly focused upon the requirements of the claimant’s course rather than the extent of her actual hours of attendance on the course from time to time.
S 70 of the Social Security Contributions and Benefits Act 1992 provides, inter alia: “(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... (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”.
Reg 5 of the Social Security (Invalid Care Allowance) Regulations 1976 (as substituted and amended) provides, inter alia: “(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.”
WARD LJ said that the judge was in difficulties in having ignored authorities in the Court of Appeal, although close attention to such authorities demonstrated that the court was not in fact constrained to follow the dicta in either Wright-Turner v Department for Social Development [2002] NICA 2 or Flemming v Secretary of State for Work and Pensions [2002] 1 WLR 2322. The judge had concluded that the words of reg 5(1) were directed to attending a course for 21 hours or more in the sense of time actually spent in the activities specified in para (2) of that Regulation, with the consequence that entitlement to Carer’s Allowance was dependent on whether the student was hard-working or lazy, brilliant or less able, ambitious or complacent, over-confident or over-cautious; and there seemed to be no reason of policy or fairness for drawing such distinctions. The fact was that reg 5 was not exhaustive of the circumstances in which a person would be treated as “receiving full-time education”, and the phrase fell to be construed afresh. Concentration on the hours actually spent was the wrong approach. To construe reg 5 consistently with s 70(3) of the 1992 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 upon which the student was enrolled was one offered as a full-time university course, as opposed to a part-time university course, then there had to be “some presumption” (per Pill LJ, in Flemming’s case, at para 14) that the recipient was in full-time education. There were always exceptions to the rule, for example the student 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 by way of testing the conclusion “is this applicant receiving full-time education?”. The judge had erred in setting the test for the calculation of 21 hours to be time actually spent in the activities specified in reg 5(2); and accordingly the appeal was to be allowed and the decision of the appeal tribunal that the claimant was not eligible for Carer’s Allowance would be reinstated.
HALLETT and HUGHES LJJ agreed.

Appearances: Tim Buley (instructed by Solicitor, DWP Litigation Service) for the defendant; Paul Draycott (instructed by Lorna O’Reilly, Merseyside Welfare Rights Advice Centre) for the claimant.

Reported by: Matthew Brotherton, barrister

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