HL/SH/IW/1
THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CG/4343/1998
SOCIAL SECURITY ACTS 1992- 1998
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER H LEVENSON
- This appeal by the adjudication officer does not succeed. I confirm the decision made by the social security appeal tribunal on 19 January 1998 to the effect that during the relevant period the claimant is not to be treated as receiving full-time education for the purposes of entitlement to invalid care allowance. My decision is based on a slightly different line of reasoning from that adopted by the tribunal, but the effect of my decision is the same. I remit to the Secretary of State questions relating to entitlement to invalid care allowance and payment of any arrears on this basis.
- I held an oral hearing of this appeal on 29 June 2000. The appeal was heard together with that in CG/2452/1999. The claimant was represented by Mr P Turville and Mr N D'Agostino. The Secretary of State (who has taken over these matters from the adjudication officers) was represented by Ms Powick from the Office of the Solicitor to the Department of Social Security. I am grateful to all of them for their assistance and I found particularly helpful the file of authorities prepared by Mr Turville.
- The claimant was born on 13 January 1953. From October 1995 until 31 December 1996 she was employed as a care assistant on a part-time basis. She last worked in that job on 24 December 1996. She was also the carer for her mother, who was born on 28 October 1924 and was in receipt of attendance allowance. The adjudication officer and Secretary of State have accepted that the claimant fulfils the caring criteria for the award of invalid care allowance. The general arrangement had been that the claimant's mother would stay with the claimant at weekends and during the week the claimant would visit her mother in the latter's home. The claimant's mother was in hospital from 28 November to 13 December 1996 but then it was arranged for the claimant's mother to move into the claimant's home. Meanwhile, presumably from October 1996, the claimant had enrolled as a student on a degree course at a university. The evidence from the university is that the claimant "has a total of 14 hours per week of timetable tuition, i.e. contact time. Other study required by her degree programme is completed at home where she is able to combine study with caring for her invalid mother". This is in a letter of 11 March 1997 from the head of the BA/BSc Modular Degree Programme. It seems to be agreed that the amount of private study required at home was in the region of 12 to 14 hours per week.
- On 16 January 1997 the claimant claimed invalid care allowance from 30 December 1996 but on 21 April 1997 the adjudication officer refused to make an award on the basis that the claimant was receiving full-time education. On 26 June 1997 the claimant appealed to the social security appeal tribunal against the decision of the adjudication officer. On 19 January 1998 the tribunal allowed the claimant's appeal, essentially on the basis that the claimant's study at home was not supervised and not to be taken into account. On 17 April 1998 the adjudication officer applied for leave to appeal to the Social Security Commissioner against the decision of the tribunal. The chairman of the tribunal refused leave on 20 August 1998 but Mr Commissioner Angus granted leave on 26 March 1999.
- So far as is relevant, section 70 of the Social Security Contributions and Benefits Act 1992 provides as follows:-
- - (1) A person shall be entitled to an invalid care 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 if –
(b) he is not gainfully employed; and
(c) the severely disabled person is either such 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.
……….
(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.
- The Social Security (Invalid Care Allowance) Regulations 1976 provide in regulation 4 that a person shall be treated as engaged and regularly and substantially engaged in caring for a severely disabled person on everyday in a week if she is or is likely to be engaged and regularly engaged for at least 35 hours a week in caring for that severely disabled person. Regulation 8 sets out earnings limits and regulation 5 provides as follows:--
- - (1) For the purposes of section 70(3) of the Contributions 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 education establishment for twenty-one hours or more a week.
(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 on 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.
- It is important to note that these provisions have to be construed in the context of invalid care allowance and that the exclusion from the allowance of those receiving full-time education is influenced by the desire that the allowance be restricted to people who are genuinely caring for the disabled person as required. However, there is no specification in the law of how the 35 hours weekly is to be made up. It is also clear that a person can be studying at home and at the same time be caring for a disabled person in the sense of being on call or being able to interrupt the study to do whatever has to be done. This is a different situation from, for example, benefits which depend on people being available for employment on a full-time or other basis. Although decisions on other benefits are relevant, it is also important to interpret the meaning of "full-time education" in section 70(3) as required by regulation 5 of the 1976 Regulations. The key phrase in the definition is "attends a course of education at a university … or other education establishment for 21 hours or more a week". Regulation 5(2) sets out what must be included and what must be excluded in calculating the hours of attendance, but says nothing about the meaning of "attendance … at a university … or other education establishment". The regulation uses the word "attends" and does not use a word such as "follows" or "is enrolled at". This is important because when the claimant is not physically attending the establishment, she is available to care for her mother. In the present case, the Secretary of State argues for a wide meaning of "attends" but to agree to such a wide meaning would also, for example, preclude from invalid care allowance those who are studying by way of correspondence courses or methods used by the Open University.
- In R(SB) 26/82 a Tribunal of Commissioners considered the meaning of the phrase "a claimant who is attending for not more than 21 hours a week a course of education at an establishment recognised by the Secretary of State ….". This phrase appeared in regulation 7(2) of the Supplementary Benefit (Conditions of Entitlement) Regulations 1980. In paragraph 18 of its decision the tribunal said:-
" 18. We have already demonstrated that 'attending a course of education at an establishment' must mean something different from merely attending at that establishment; and we stress that we are referring to the hours of compulsory attendance at the establishment, for it is such hours, and such only, that will determine whether the education in question is or is not full-time. In other words, a person may be compulsorily attending the establishment during hours when he is not attending a course of education at that establishment. On the other hand, we do not think that a person can be held to be attending a course of education at an establishment during hours when he is not either physically present at the establishment or participating in some compulsory activity directly controlled by the establishment. (In the latter category would fall such activities as a field class in botany or an organised visit to the local museum.) The draftsman's selection of the word 'attend' must import the notion of place or function (cf the third meaning set out in paragraph 17 above). He has eschewed such wider terms as 'following a course of education' or 'pursuing a course of education'."
If this restrictive interpretation is adopted for the purposes of supplementary benefit, then it is even more appropriate to adopt it for the purposes of invalid care allowance. In paragraph 24 the Tribunal of Commissioners concluded as follows:-
"24. In our view the correct analysis is that indicated in paragraph 23 above. In calculating the hours involved in attending a course of education the following, and only the following, should be taken into account:
(a) Time spent in a classroom (or laboratory or such like) under the instruction or supervision of a teacher.
(b) Time spent on compulsory field-work, outings, projects and the like which, although off the premises of the relevant establishment, are an integral part of the course which the claimant is following and are conducted or supervised by a teacher from the establishment.
(c) Time spent on compulsory and predetermined periods of private study on the premises of the establishment."
In paragraph 25 the Tribunal of Commissioners comment that "the foregoing seems to us to be the natural and proper construction … it has, moreover, the merit of posing questions the answers to which are objectively ascertainable. Little more need be done than to refer to the claimant's school or college time table. If benefit officers and appeal tribunals are to be called upon to assess the amount of time spent by the claimant on home-work and/or unscheduled private study on the establishment premises they would be faced with an almost impossible task. The claimant's own evidence would be virtually incapable of effective verification. Moreover, a premium would be put on indolence".
- For the reasons that I have indicated, it seems to me that the same approach applies to the meaning of regulation 5(1) of the 1976 Regulations. Several other cases were referred to during the hearing, but they do not affect my decision on this point on which I prefer the approach of the Tribunal of Commissioners. Mr Turville criticised the logic of the decision in CSB/1010/1989 (*41/90). However, in any event that decision focused on the questions of whether a course was full-time or part-time and whether study was supervised or unsupervised. It did not refer to the decision in R(SB) 26/82 and it did not discuss the meaning of "attending". The decision in R(F) 1/93 also focused on the question of what was meant by "supervised study, examination or practical work …". The Commissioner, who had been a member of the Tribunal of Commissioners in R(SB) 26/82 indicated his confidence that in R(F) 1/93 the relevant child was in sufficient contact with the school to be "properly regarded as attending a course of education thereat". There was no further discussion of the specific meaning of "attending a course of education at a recognised educational establishment" in regulation 5(2) of the Child Benefit (General) Regulations 1976. There have been two more recent decisions by Commissioners which specifically relate to invalid care allowance. In CG/16491/96 Mr Deputy Commissioner Jacobs declined to comment on the meaning of "attends a course of education" (see paragraph 19(a)). In C2/97(ICA)(NI) the Chief Commissioner for Northern Ireland makes no specific reference to the decision of the Tribunal of Commissioners in R(SB) 26/82 and it is possible that he had not had his attention drawn to it. In paragraph 12 of his decision the Chief Commissioner for Northern Ireland indicates that in his view most of the case law in recent years on whether or not a person is entitled to income support (by which he presumably refers to all means-tested benefits) is not directly relevant to the meaning of regulation 5 of the 1976 Regulations. For many purposes that may be so, but the decision of the Tribunal of Commissioners in R(SB) 26/82 focuses specifically on the meaning of the phrase in regulation 5(1) with which I have been concerned.
- Thus, in my opinion, the calculation of the hours of attendance must take place in the context of the meaning of regulation 5(1) that I have discussed. The only hours that can possibly be relevant are those that come within the description in paragraph 24 of R(SB) 26/82 (see above). I take it that when the Tribunal of Commissioners refers to a "teacher" this is intended to include other supervisors who might not technically be teachers. Regulation 5(2)(a) then gives a catalogue of activities which must be included. It is not necessary to make fine distinctions as to whether a particular activity counts as study or practical work or taking part in any exercise, experiment or project. It will usually be clear enough whether the particular activity is capable of coming within the specified list. However, if the activity is so capable, it must nevertheless be excluded if it amounts to a meal break (unlikely) or unsupervised study whether undertaken on or off the premises. In this context "off the premises" relates to the actual building and the purpose of the provision is to exclude periods of unsupervised study which take place on field trips and so on. The key issue here is what is meant by "unsupervised study" because if an activity can be so described, then it cannot come within regulation 5(2)(a) and cannot be included in the number of hours. This exclusion applies to the whole of the catalogue in regulation 5(2)(a) otherwise there would be no point in the provision because activity that came within the description of "unsupervised study" could not possibly count as "supervised study" within regulation 5(2)(a). The meaning of "study" is indefinable in the wider sense and the time spent on it is unquantifiable. Reading around the subject or simply thinking about the subject can be included in the wider notion of study. Clearly these activities count as "unsupervised study". In R(F) 1/93 the Commissioner was construing the wording of regulation 5 of the Child Benefit (General) Regulations 1976 which in the relevant parts was similarly worded to the regulation with which I am dealing. He decided (paragraph 17) that the word "supervised" "imports the presence or close proximity of a teacher or tutor". He emphasised particularly the fact that he was dealing with the meaning in the context of schools rather than other establishments (paragraph 13) but of course that does not mean that a similar meaning cannot be given in the case of other establishments.
- In CSB/1010/1989 (*41/90) the Commissioner said (in paragraph 5):-
"… However, unsupervised study must not be confused with study done in the absence of the physical presence of a supervisor. Study can perfectly well be supervised if work is set by a supervisor and is to be done privately by the student in his own time. Most University degree courses proceed on this basis. The "contact hours" will be few, but the number of hours spent in private study will be considerable. However, that study, because it is done in private, does not become unsupervised."
- I note that the Commissioner referred to study done in private, and not study done at home. In the context of what I have said above, it is study done while the claimant is present at the establishment (or in associated circumstances) that is relevant for invalid care allowance. This decision was not referred to in R(F) 1/93.
- In CG/16491/1996 the Commissioner was of the opinion that no question arose of having to choose between these two decisions. He stated that "supervised" is an ordinary English word which does not require to be interpreted, that it may take different forms and be exercised to different degrees and that the nature and degree of supervision that is relevant will depend on what is being supervised, the context in which the supervision takes place and the legislative context in which the word was used. I agree that, subject to what I have said above, all of these factors must be taken into account.
- In C2/97 (ICA) (NI) the Chief Commissioner for Northern Ireland was considering identically worded provisions for Northern Ireland to the provisions that are before me in this case. I am not sure that C4/96 (ICA), on which he appeared to rely, actually considered the right questions, since it made no reference to the detailed rules for calculating whether, for invalid care allowance, a person was to be treated as receiving full-time education. The Chief Commissioner for Northern Ireland concluded that the word "supervised" has a different meaning for a person studying at a school from the meaning for a person studying at a university. He continued (para 18) "I agree that study can perfectly well be supervised at university level if work is set by a supervisor and is to be done privately in his own time. In addition I do not consider that because study is done in private that it becomes unsupervised in a university context". However, that is not the same as saying that no study that is done in private becomes unsupervised in a university context, because to do so would deprive regulation 5(2)(b) of much of its meaning.
- My conclusions on the way in which regulation 5 is to be applied are as follows:-
(a) The only hours to be taken into account at all are those spent attending at the establishment as that concept is explained in paragraphs 18 and 24 of the decision of the Tribunal of Commissioners in R(SB) 26/82.
(b) From such hours are to be excluded time occupied by meal breaks or spent on unsupervised study. For the guidance of tribunals I would suggest that unsupervised study means study to which all of the following descriptions apply:-
(i) it is not done in the physical or virtual (in the technological sense) or telephonic presence of an academic or support staff member who is present for the purpose of supervision and
(ii) it is not a traditional lecture or seminar or tutorial whether carried out by traditional or modern methods and
(iii) it is not done in a manner prescribed in detail by academic or support staff (and so does not consist of completing questionnaires or doing multiple choice tests and similar) and
(iv) it is not a traditional formal examination and
(v) it does not consist of actually writing (or dictating or typing) an assessment which is to be formally assessed by academic or support staff.
It seems to me that unsupervised study will include (but not necessarily be limited to) all other time spent reading even if the reading is from a prescribed reading list, and also preparation for the activities which are themselves supervised study.
- On the basis of this approach, the facts of the present case are such that there can be no doubt that the claimant is not to be treated as receiving full-time education for the purposes of her claim for invalid care allowance.
(Signed) H Levenson
Commissioner
(Date) 9 August 2000
