Ward LJ starts his judgment with a warning that anyone who thinks it would be easy to determine whether a person was in full time education is wrong if the matter requires consideration of the rules relating to benefit entitlement! This case involved an appeal by the Secretary of State against a determination by the Upper Tribunal that the respondent (AD) was eligible for carer’s allowance despite her attendance on a course. AD had been in receipt of carer allowance (CA) for a number of years as carer for her severely disabled daughter. In September 2006 she enrolled on a full time BA course which required 12.5 hours of supervised study per week. The university confirmed that the course was full time and that students of the course were expected to work for 1080 hours per annum, averaging at 27.69 hours per week. As a consequence her benefits were stopped and she appealed on the basis that she was timetabled only to attend 12 hours a week and that this would decrease in May 2006, that the estimate given by the university was not reliable in that it was geared to the circumstances of a conscientious student rather than one wishing to scrape through and that her attendance on the course had in no way affected her caring responsibilities.
Section 70 of the Social Security Contributions and Benefits Act 1992 (“the Act”) allows for receipt of carer’s allowance to those regularly and substantially engaged in caring for a severely disabled relative provided they are not in full time employment, under 16 or in full time education. Regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 (“the Regulations”) set out the circumstances in which persons are to be regarded as receiving full-time education, namely “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. In calculating the hours of attendance …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.”
At the original appeal the Tribunal focused on the evidence provided by the university and found against AD. The Upper Tribunal however held that the appeal tribunal had erred in law as it incorrectly focused on the stated requirements of AD’s course, rather than upon the extent of her actual hours of attendance on the course. The Upper Tribunal took the view that reg.5(1) should be interpreted by reference to their ordinary meaning, namely that attendance on a course for 21 hours or more a week, would be calculated as the time actually spent in the activities specified in reg.5(2). The issues for the Court of Appeal to consider were whether:
(i) reg.5 was exhaustive of the circumstances in which a person would be treated as being in full-time education;
(ii) the hours during which a person attended a course of education at a university were to be calculated by reference to the actual hours spent in the activities specified in reg.5(2).
In determining the first question the Court of Appeal looked at the wording used within the regulations to define whether a person is engaged in caring (reg. 4), full time education (reg.5), and full time employment (reg 8). In regulation 4 and 8 there was a requirement that a person would not be treated as caring or in full time employment unless certain conditions were met. Such wording was not included within reg.5 suggesting that a person could be found to be in full time education even when the requirements set out in reg.5 were not met. As such reg. 5 was not exhaustive of the circumstances in which a person would be treated as being in full-time education.
If it was clear on the ordinary meaning to be given to s.70(3) that when a person was in fact receiving full-time education, then one need not resort to reg.5 to see whether he was to be so treated. Following detailed consideration of preceding case law in this area and particularly Flemming v Secretary of State for Work and Pensions (2002), the Court of Appeal confirmed that they did not believe they were bound by the decision in Wright-Turner v Department for Social Development (2002) which had stated that the regulation was exhaustive, because the matter had not been argued at that hearing, and the court’s views in Wright-Turner as to whether a person could be regarded as being in receipt of full-time education were obiter.
On the second issue the Court of Appeal confirmed that one could not calculate whether a course was full time purely with reference to the hours spent by a student on the activities listed within reg.5(2). Ward LJ, applying the decision in Flemming, stated that “to construe reg.5 consistently with s.70(3) of the Act, the fundamental question was whether the applicant for carer’s allowance is receiving full-time education. A student would receive that which was provided. If in ordinary circumstances the course on which the student was enrolled was one offered as a full-time university course, as opposed to part-time, then there had to be some presumption that the recipient was in full-time education.” Ward LJ did concede that there would be exceptions to the rule, for example, if the student was 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 whether that person was receiving full-time education. Accordingly, the Upper Tribunal had erred in setting the test for the calculation of 21 hours as time actually spent in the activities specified in reg.5(2). In the circumstances, DA was not eligible for the carer’s allowance.
The effect of this ruling can not be underestimated for those currently in receipt of carer’s allowance and thinking of undertaking further training or education. However it is worth highlighting that the effects of this determination could, in individual circumstances, be mitigated. This judgment does allow that in exceptional circumstances those attending a full time course may be able to demonstrate that they do not meet the qualifying criteria set out in reg.5, if for example they have been able to agree with their university a exemption from part of the course.
It is also worth remembering that educational establishments and qualification bodies are required by the Disability Discrimination Act 1995 to make reasonable adjustments so as to ensure those students affected by disability are not treated less favourably. Following the decision in Coleman this duty could, arguably extend to those with caring responsibilities for a disabled person. So educational facilities would be wise to give serious consideration to any request for an exemption or reduction in hours if a carer is able to demonstrate that, despite this reduction, they could satisfactorily complete the work expected of them. This would then need to be submitted with an application for carers allowance for consideration by the DWP.
Finally it is also worth noting that where a person does decide to undertake further education or work which will impact on their ability to carry out caring responsibilities or, as in this case, reduce their entitlement to welfare benefits, this may necessitate a reassessment by the local authority of both the disabled person’s and carer’s needs.