Neutral Citation Number: [2014] EWHC 195 (Admin)

Case No: CO/1004/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 5 February 2014 

Before :

THE HONOURABLE MRS JUSTICE THIRLWALL DBE
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Between :

	THE QUEEN 
On the Application of
MR STEVEN EARL	Appellant	
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	              WINCHESTER CITY COUNCIL	Respondent	

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Mr Andrew Lane (instructed by Blake Lapthorn Solicitors) for the Appellant
Mr Jack Holborn (instructed by The Legal Department, Winchester City Council) for the Respondent

Hearing dates: 21st & 22nd January 2014
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JUDGMENT
(As Approved by the Court)

Crown Copyright©

Mrs Justice Thirlwall DBE : 

1.	On 1st June 2012, Mr Steven Earl, the appellant, appealed to the Valuation Tribunal sitting in Winchester against the decision of Winchester City Council that he was liable to pay council tax during his final year of study at Winchester University.  By a written decision dated 7th January 2013 the Valuation Tribunal dismissed his appeal.  This is his appeal against that decision. 
2.	The tribunal’s reasoning is not easy to follow.  Rather than analyse the route by which it reached its conclusion I propose to examine the central question: at the material time was the appellant a student within the meaning of the Local Government Finance Act 1992 (“the Act”)?  Students are relieved of liability for council tax by operation of S6(4) and paragraph 4 of Schedule 1 to “the Act” (which introduced Council Tax).   If a person is a student within the meaning of the Act he or she is not liable to pay council tax.  
Relevant statutory framework    
3.	By Regulation 4 of The Council Tax Discounts Disregards Order 1992, 

“for the purposes of paragraph 4 of Schedule 1 to the Local Government and Finance Act 1992-
“student” means a person, …, who is to be regarded as - -
 …
(b) a person undertaking a full time course of education, by paragraphs 3 and 4 of Schedule 1 to the Order.
4.	Schedule 1 of the Order, under the heading, ‘Definition of Students etc’ so far as is relevant, reads:
Part II 
Students
3.  A person is to be regarded as undertaking a full time course of education on a particular day if-
(a)	on the day he is enrolled for the purpose of undertaking such a course with a prescribed educational establishment within Part I Schedule 2 to this Order, and 
(b)	the day falls within the period beginning with the day on which he begins the course and ending with the day on which he ceases to undertake it,
and the person is to be regarded as ceasing to undertake a course of education for the purpose of this paragraph if he has completed it, abandoned it, or is no longer permitted by the educational establishment to undertake it.
4(1) A full time course of education is, subject to subparagraphs (2) and (3), one – 
(a) which subsists for at least one academic year of the educational establishment concerned…
(b)  which persons undertaking it are normally required by the educational establishment concerned to undertake periods of study, tuition or work experience (whether at premises of the establishment or otherwise) - -
(i)	of at least 24 weeks in each academic …year… 
(ii)	which taken together amount in each such academic year…to an average of at least 21 hours a week.  

Subparagraphs (2) and (3) are not relevant.
In the light of those provisions the convention seems to be to interpret student as meaning “full time student”.  That is not what the Act says although in practical terms it may come to the same thing.

Facts
5.	In September 2010 the appellant enrolled on a 2 year full time course leading to a Diploma in Higher Education in Contemporary Performance and Drama studies at the University of Winchester (a prescribed educational establishment, as required by paragraph 3(a)).   He failed a double module at the end of his first year.  He was permitted to retake that module over the course of the academic year 2011 to 2012.  The retake required his attendance at university for 3 hours of lectures per week together with recommended private study of 10 hours per week.  Successful completion of that module would mean he would be permitted to continue on the diploma course, taking the second year in his third year of attendance at the university.  In the event he completed the module successfully and went on to complete the second year of the diploma in his third year of study.  He is now undertaking a degree course.

The academic year 2011-2012
6.	In September 2011 the appellant enrolled at the university.  During the early part of the academic year the Council informed him that he was being treated as a part time student and was liable to council tax.  In a well argued email sent on 15th December 2011 the appellant explained why this was an error and he should be considered a full time student.  There were a number of changes of mind within the department of Winchester City Council responsible for this matter.  On 5th April 2012 the Council responded by letter to the appellant’s appeal against the Council’s final decision that he was not entitled to be treated as exempt from council tax.  The third paragraph reads as follows; “You are applying for this exemption based on the legislation saying that you must be enrolled on a full time course of education and a course normally consists of attendance/study/tuition of a minimum 21 hours a week, 24 weeks of an academic or calendar year.  The Council does not dispute that you are enrolled on a full time course. (my italics) However, from your correspondence you would appear to interpret the other criteria as providing the course normally consists of these hours/weeks, it doesn’t matter how few you actually do.  The Council does not take this view, it believes you should have to do this minimum number of hours and weeks to qualify as full time … The Council therefore abides by its original decision that it does not consider you to be a full time student this academic year.”  
7.	I add that the appellant’s application for council tax benefit had been refused, apparently on the basis that he was considered to be a full time student.  He had raised this issue in his argument with the City Council.  His concerns were dealt with thus “I am aware that the anomaly in the legislation between benefits and council tax puts you in a difficult position and it may be you have decided to return home because of this”.  It is unsurprising that the appellant feels aggrieved.  
8.	The university has been inconsistent.  In an open letter (which I have not seen but there is no doubt that it was sent) the university wrote that the appellant was “enrolled on our Contemporary Performance and Drama Studies combined degree, which is a full time programme”.  I note the reference to a degree rather than a diploma.   A certificate was provided to the City Council on 17 November 2011.  It confirms that the appellant was enrolled on a programme of higher education.  The certificate records for the academic year 27 Sep 2010 - 25 Sep 2011, full time study.  For the academic year 26 Sep 2011-24 Sep 2012, repeating one double module by part time study. Next to the dates 25 Sep 2012-31 July 2013 (sic) the following appears “Will resume on Full time Study”.  
9.	Mr Lane, who appeared for the appellant, assured me that the university have indicated more recently that the certificate was issued in error and that the appellant was always considered a full time student.  Both parties agreed that the position of the university is not determinative of whether the appellant was a student within the meaning of the legislation at the material time.  I agree.  In the circumstances I propose to ignore the contradictory evidence from the university. 
10.	The letter of 5th April 2012 was the basis of the council’s case before the tribunal.   It was not disputed that the appellant was enrolled on a full time course.  The council argued however that the requirements of paragraph 4(1)(b) (ii) were not met on the basis that the appellant was studying for fewer than the 21 hours required.   There is an obvious logical difficulty with that position.   Mr Earl’s case, as articulated by Mr Lane, was simple:
i) It is not disputed that Mr Earl was enrolled on a full time course, namely the diploma course.  
ii) Paragraph 4 is directed at the course, not the individual.  The diploma course is a full time course within the meaning of this paragraph.  The fact that the appellant was not required to undertake periods of study which amounted to an average of at least 21 hours per week is irrelevant.  A full time course is one “which persons undertaking it are normally required ..” to undertake an average period of study of at least 21 hours per week.  The students on the full time course were normally required to do that.  The fact that the appellant was not required to do so reflected his personal position.  It did not affect the course.  Therefore Mr Earl comes within the definition of student.   
11.	The argument is attractively simple.  The submission that paragraph 4 is directed at the course, not the student, is plainly correct.  No authority is needed for that proposition.   Timothy Corner QC sitting as a High Court Judge came to the same view at paragraphs 47 to 50 of his decision in R (on the application of Feller) v Cambridge University [2011] EWHC 1252.  
12.	The difficulty, in my judgment, is with the first proposition ie that the appellant was enrolled on that course.  
13.	At the beginning of his submissions before me Mr Holborn said that it was not accepted that the appellant was enrolled on a full time course.   The letter of April 2012, and earlier submissions to the opposite effect, were incorrect.  Mr Lane objected that if Mr Holborn intended to submit that the appellant did not meet the requirements of paragraph 3 there should have been a respondent’s notice.  Mr Holborn confined himself to observing that if paragraph 4(1)(b) (ii) was satisfied, then so was paragraph 3.   
14.	The concentration on paragraph 4(1)(b)(ii) in correspondence and before the tribunal in conjunction with an acceptance that the appellant was enrolled on a full time course led to confusion.   The requirements of both paragraph 3 and 4 must be met before a person may be considered a student within the meaning of the Act.   Because paragraph 3 had not received any attention during submissions at any stage of the proceedings I invited the parties to make written submissions.  They both did so.  I have considered them. 
15.	Mr Lane submits that the requirements of paragraph 3 can best be described as follows:
i) Is the appellant enrolled on a full-time course of education?
ii) Is the period in question (here the academic year 2011-2012) after he has started the said course but before he has ceased to undertake it?  
16.	He began by addressing the second requirement.  He says the answer must be yes.  The period in question was after the day Mr Earl had begun the course in his first year (September 2010).  He had not completed or abandoned it, nor had the university said that he was no longer allowed to undertake it.  On the contrary, Mr Lane submits, he was to be permitted to continue it.  Therefore he had not ceased to undertake it within the meaning of paragraph 3(b).  
17.	This argument does not withstand scrutiny.   Even if the appellant were entitled to rely on his original enrolment on the full time course in September 2010, as Mr Lane contended, he was not, during the academic year beginning September 2011 permitted to undertake that full time course.  Successful completion of the year of part time study was a requirement for his presence on the full time course the following year.  It follows therefore that even on Mr Lane’s scenario the appellant had during that year ceased to undertake the full time course.  More importantly however this argument ignores the reality of the enrolment in the second year. 

The Correct approach        
18.	In my judgment paragraph 3 requires the council/tribunal/court first to ask this question: for the purpose of undertaking which course of education was the appellant enrolled at the material time – here the academic year September 2011 to 2012?  The second question is does that course come within paragraph 4?   
19.	The answers to both questions are clear.  The appellant was enrolled to undertake a course of education which would lead him to complete the double module to which I have referred.  Mr Lane says there was no “part time” course upon which he could enrol.  It may be the case that this precise course did not feature in the university prospectus.  It is inescapable that he enrolled for the purpose of undertaking a course of education that was part only of a full time course.  It required 3 hours of lectures and had a recommended period of study of 10 hours per week.   It did not comply with the requirements of 4(1)(b)(ii).  It was not a full time course of education.    
20.	Notwithstanding the careful and detailed argument presented by both counsel that is where this case begins and ends.  At the material time the appellant was not enrolled to undertake a full time course of education.  He was not therefore a student within the meaning of Regulation 4 and paragraph 4 of Schedule 1 to the Local Government and Finance Act 1992.   He was therefore liable to pay council tax.    
Intercalating Students
21.	Mr Lane drew my attention to the letter to Chief Finance Officers sent on 29 April 1996 by the Finance Local Taxation Division.  It is described as the 5th council tax information letter.  It deals with the position of intercalating students, ie students who, by arrangement with the university, do not attend for certain periods for reasons of ill health, caring responsibilities and so on.  The appellant was not intercalating.  I accept that the letter makes it plain that the purpose of the system of student exemptions is to take account of the fact that most students are not entitled to council tax benefit.   One would expect therefore that the two sets of regulations would be consistent.  In the appellant’s case consideration of the two sets of regulations has led to two different conclusions.  
22.	I have considered the Council Tax Benefit Regulations 2006/215.  I note that they refer to a “full time student” rather than a student.  This phrase means “a person attending or undertaking a full time course of study and includes a student on a sandwich course.”  Given my conclusions as to the nature of the course of study undertaken by the appellant during the relevant academic year, it is not apparent that he comes within the definition of full time student for that period.  I suspect that those responsible for council tax benefit were not helped by the inconsistent information that came from the university.  Even after Mr Lane’s helpful exposition of the benefit regulations it was not clear to me upon what basis the appellant’s claim for council tax benefit could  properly have been refused.  That however is not the matter in issue in this case.  
23.	At one stage during argument Mr Lane submitted that were I to consider that the tribunal should have focussed on paragraph 3 then I should remit the case to them for that to be done.  As is plain from this judgment I do not think that is either necessary or desirable.  This is an appeal on a question of law which I have been able to determine.  The Valuation Tribunal was right to dismiss Mr Earl’s appeal.  This appeal too is dismissed.