Part-time student was eligible to claim income support

LAW REPORT v 4 July 1997: Chief Adjudication Officer for Social Security v Webber; Court of Appeal (Lord Justice Evans, Lord Justice Peter Gibson and Lord Justice Hobhouse) 1 July 1997

A person pursuing a part-time modular university course was not a student for the purposes of the Income Support (General) Regulations 1987, and was thus eligible to claim income support.

The Court of Appeal upheld the decision of the Social Security Commissioner that the claimant was entitled to income support.

In September 1992 the claimant began a "modular course" at Oxford Brookes University, aiming to achieve a Bsc Hons degree. The claimant had begun his studies as a full-time student, but after the first year, because he had failed to pass sufficient modules, the university told him that he could only start as a part-time student in his second year.

He applied for income support in October 1993. His application was refused by the Adjudication Officer, but his appeal to the Appeal Tribunal was allowed. The Adjudication Officer appealed to the Commissioner, who upheld the Appeal Tribunal's decision.

Rabinder Singh (Solicitor, Department of Social Security) for the Chief Adjudication Officer; Richard Drabble QC (Peter Turvill, Oxfordshire Welfare Rights) for the claimant.

Lord Justice Hobhouse said that the question of law raised on the appeal could be shortly stated: whether the claimant was at the material time a student as defined by the Income Support (General) Regulations 1987.

Under section 124 of the Social Security Contributions and Benefits Act 1992 it was a requirement of entitlement to income support that the relevant person be "available for and actively seeking employment". Under regulation 10(1) of the regulations "a claimant shall not be treated as available for employment if . . . he is a student during the period of study . . ."

In regulation 61 "period of study" was defined as meaning: "the period beginning with the start of the course of study and ending with the last day of the course or such earlier date as the student abandons it or is dismissed from it . . ." Student was defined as "a person . . . who is attending a full-time course of study . . . and for the purposes of this definition (a) a person . . . shall be treated as attending it throughout any period of term or vacation within it . . ."

The general scheme of the regulations was to identify the status of "student". That status depended upon the categorisation of the course on which the student was enrolled. The course was required to be a "full-time" course of study.

It had been argued for the claimant that where a course had a variable character, it was necessary to determine the character of the course, whether it was full-time or part-time, at each relevant stage. It had been submitted for the Adjudication Officer that the definition required that the course be categorised at its outset when the student enrolled for it and that, once the status of student had been acquired, it was deemed to continue.

A course which did not require full-time attendance could not be described as a full-time course. If the relevant course was not a full-time course then the relevant person never was a student coming within the definition in the Regulations.

Lord Justice Peter Gibson said that the present case could not be distinguished from Chief Adjudication Officer v Clarke and Faul [1995] ELR 259, in which it was held that an intercalated period when the student was not attending a full-time course of study could not fairly be described as a period of either term or vacation within the course in accordance with the definition of "student" in the Regulation 61 (a).

Lord Justice Evans agreed with Lord Justice Peter Gibson, and said that the claimant was also entitled to succeed without relying on the words "throughout any period of term or vacation within it". It was one thing to treat a person as a full-time student at times when, although such a student, he was not in fact attending the course, but quite another thing to rely upon the deeming provision in Regulation 61(a) to create a status as student which did not exist in fact.

Kate O'Hanlon, Barrister