Decision No:  C6/06-07(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 28 October 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the legally qualified panel member, by the Department against a decision dated 28 October 2005.  That decision allowed the respondent claimant’s appeal against a departmental decision dated 23 June 2005 disallowing income support (IS) to the claimant from 20 April 2005 (the date for which it was claimed) on the basis that she was a student.  The Department is represented by Mr Toner of its Decision Making Services branch and the claimant by Mr Mullarkey of Campbell, Fitzpatrick solicitors.

2.	The factual background to the case is that the claimant, a full-time student on a nursing course at Queen’s University, was injured in a road traffic accident on 10 March 2005.  She claimed IS on 20 April 2005.  She stated on her claim form that due to sickness she had had to temporarily withdraw from her course until September thus losing her bursary which she stated would be stopped until she resumed the course in September.  The Department contacted her by telephone on 22 June 2004 and the claimant informed it that she would be going back to the same course at Queen’s from September and that she had not withdrawn from the course permanently.  The Department then made the said disallowance decision dated 23 June 2005.  

3.	The claimant appealed and in connection with her appeal produced two letters from Queen’s.  The first, dated 29 June 2005, stated that the claimant had been a student in the School of Nursing and Midwifery.  Unfortunately she had had to take time out and so her bursary had been stopped until hopefully after Occupational Health reviewed her again within the next few months when they would decide if she was fit to “resume her studies again”.
4.	The second letter, dated 17 October 2005 was again from the School of Nursing and Midwifery.  It stated, inter alia

“As and from May 2005, [the claimant] left her nursing course at Queen’s University.  [The claimant] was due to recommence the course, with bursary, on 12 September 2005.  Unfortunately she was forced to withdraw again due to continuing health problems.

It is my understanding that [the claimant] remains certified unfit for work and whilst she has stated a desire to return to her nursing course, this cannot now happen until March 2006.  At that time it will be [the claimant’s] responsibility to reapply for entry to the March 2006 intake.  This may or may not be successful, subject to entrance conditions and the state of [the claimant’s] health.  [The claimant] is not at present and has not been for the last seven months a student at Queen’s University and does not belong to any nursing course.”

5.	The tribunal following a hearing on 28 October 2005 allowed the claimant’s appeal.  It found that the claimant had been a full-time student on a non-modular, traditional degree course.  It relied on the letter of 17 October 2005 as indicating that the claimant would have to re-apply for a new place on the course and it was not guaranteed that she would be admitted.  She was not on temporary absence, her withdrawal was a permanent one and therefore constituted abandonment of her course.

6.	The Department appealed to a Commissioner.  Essentially the grounds were two-fold.  The first was that the letter of 17 October 2005 did not go far enough to confirm that the claimant had abandoned the course.  It could, for example, mean that from September 2006 and, subject to being successful at intake in March 2006, the claimant would be continuing the course from where she left off on 30 September 2005.  The second ground was that the fact that the claimant attended the course from 12 September to 30 September 2005 would not sustain a conclusion that from 20 April 2005 the claimant had abandoned the course.

7.	Mr Mullarkey responded by letter dated 7 August 2006.  Essentially he submitted that no point of law had been identified by Mr Toner.  The issue was whether or not his client was a full-time student.  That was a question of fact for the tribunal to decide.

8.	I held a hearing of the appeal.  Regrettably the claimant neither attended the appeal nor provided any reason for her non-attendance.  Nor, it appears, despite repeated attempts by Mr Mullarkey (who attended) did she give him any instructions as to how to proceed in the matter despite repeated attempts by Mr Mullarkey to contact her.  Under those circumstances Mr Mullarkey offered no argument at hearing on the claimant’s behalf.  He assured me that he had advised her regarding the matter and that she was aware that, if I set the tribunal decision aside, I could give the decision which the tribunal should have given.  He then withdrew.

9.	I am grateful to Mr Mullarkey for his assistance.  If, as appears to be the case, his client was in receipt of correspondence and telephone calls to which she chose not to reply, this is regrettable but not a reason for adjourning this matter.  Being satisfied that the claimant is aware of the matters set out in the preceding paragraph, I therefore proceed.

10.	At hearing Mr Toner essentially made the same submissions as had been made in correspondence.  He emphasised that the claimant’s opportunity to recommence her course in September 2005 was inconsistent with the tribunal decision that she had abandoned her course.  On that basis the tribunal’s conclusion that she had done so was perverse.  Mr Toner requested me, if I was setting aside the tribunal’s decision to give the decision which it should have given.

11.	The legal situation is relatively clear.  The claimant, having been a full-time student whose course was not completed could not be entitled to IS unless she had finally abandoned the course or been dismissed from it. (Regulation 61(2) of the Income Support (General) Regulations (Northern Ireland) 1987).  As I understand it this was common case between the parties, the only issue being whether she had finally abandoned her course, the issue of dismissal point not being relevant.

12.	The other relevant piece of legislation is Article 13(8)(b) Social Security (Northern Ireland) Order 1998 which provides:-

“In deciding an appeal under this Article, an appeal tribunal –
…
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made”

13.	The decision appealed against was dated 23 June 2005.  Article 13(8)(b) prevented the tribunal from taking into consideration any circumstances not obtaining at that time.  For the tribunal’s decision to be correct it would have to be a sustainable conclusion on the evidence that the claimant had finally abandoned her course as of that date.  I am concerned with whether or not that was a reasonable conclusion on the evidence not with whether or not it was one which I personally would have reached.

14.	I consider, however, that it was not reasonable. The tribunal appears to have reasoned that there was a lack of clarity in the earlier evidence which was clarified by the letter of 17 October 2005.  It is, however, quite clear from the letter dated 29 June 2005 and indeed from that of 17 October 2005 that had the claimant been passed fit by the occupational health review she could have recommenced her course with bursary in September 2006.  There appears to have been no question of her having to reapply for admission to the course until after September 2006.  She could take the course up again at that time if she was fit to do so without having to re-apply for it as would be the case had she finally abandoned the course.

15.	I consider that the tribunal ignored that point of the letter of 17 October 2005 which stated that:-

“[The claimant] was due to recommence the course, with bursary, on 12 September 2005.”

	It also appears to have ignored the earlier letter of 29 June 2005 to similar effect.

16.	The conclusion which it reached was, in my view, one which no reasonable tribunal could have reached as to the circumstances obtaining at 23 June 2005 and I set its decision aside as an error of law for that reason.  It may be that in September 2005 the claimant was dismissed from or forced to finally abandon her course but that is not a matter which I can decide today.  I can deal only with the circumstances obtaining at 23 June 2005 and the tribunal’s conclusions with relation to those circumstances are unsustainable on the accepted evidence.

17.	I come now to decide whether I should give the decision which the tribunal should have given.  Despite the claimant’s absence from the hearing I consider that I can do so.  There is adequate evidence to enable me to do so.  I also consider that I should do so.  The matter has been going on for some time.  My decision is that the decision dated 23 June 2005 is upheld.  The claimant was not entitled to IS from 20 April 2005 as she was a full-time student who had not abandoned or been finally dismissed from her course.

18.	The Department wins its appeal.  The claimant is not entitled to IS from 20 April 2005.

(Signed):  M F Brown

COMMISSIONER

28 November 2006