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Neutral Citation Number:	2009 46
Reported Number:
File Number:	CG 449 2008
Appellant:	Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	23/06/2010
Date Added:	13/03/2009
Main Category:	Other current benefits
Main Subcategory:	carer's allowance/invalid care allowance
Secondary Category:
Secondary Subcategory:
Notes:	Court of Appeal decision reported as [2010] AACR 42. Carer’s allowance – meaning of “receiving full-time education” – whether test is time spent by student or requirements of course The claimant had been entitled to carer’s allowance (CA) and its predecessor, invalid care allowance, since 1990. In September 2006 she started a BA honours degree at a university. In December 2006 she notified the CA unit that she had started a course. The University confirmed her place on the course and stated that she was expected to undertake supervised study averaging 27.69 hours a week over the academic year, and that it regarded her as being in full-time education. Under section 70(3) of the Social Security Contributions and Benefits Act 1992 people in full-time education are not entitled to CA. Regulation 5(1) of the Social Security (Invalid Care Allowance) Regulations 1976 provides that a person shall be treated as receiving full-time education for any period during which he attends a course of education for 21 hours a week or more, including time spent in the activities specified in paragraph (2). The decision-maker decided that the claimant was not entitled to CA from September 2006. The claimant appealed to an appeal tribunal, saying that she was only attending at the university for 12 hours a week. Her appeal was dismissed and she appealed further. The Secretary of State argued in reliance on CG/3189/1004 that the focus of regulation 5(1) was the expectations of the institution and that it was irrelevant that the claimant had devoted less than 21 hours a week to her course. The Upper Tribunal judge allowed her appeal (AD v SSWP [2009] UKUT 46 (AAC)), considering himself bound by Wright-Turner v Department for Social Development [2002] NICA 2 (reported in appendix 1 to R1/02 (ICA)) and Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641; [2002] 1 WLR 2322 (also reported as R(G) 2/02) to hold that, while the expectations of the institution were important and relevant, the fundamental test in law remained the time actually spent by the student in the activities specified in regulation 5(2). The Secretary of State appealed to the Court of Appeal, arguing that regulation 5 is not exhaustive of the circumstances in which a person would be regarded as being in full-time education for the purposes of entitlement to carer’s allowance and that it was wrong to hold that the tribunals were bound by Wright-Turner and Flemming. Held, allowing the appeal, that: 1. the Court was not constrained to follow the dicta in Wright-Turner on the issue of whether regulation 5 is exhaustive, since in that case the point was conceded and also the court’s comments were obiter as it was not considering the broad question of whether or not the claimant was receiving full-time education, but only the narrow point of the proper interpretation of “supervised” and “unsupervised study”, nor did the judgment in Flemming deal with the issue (paragraphs 25 to 34); 2. although the enabling legislation in section 70 provides for regulations as to circumstances in which a person is and is not to be treated as receiving full-time education, regulation 5 prescribes only when a person is receiving full-time education and does not dictate that a person will not be deemed to be in receipt of full-time education unless those conditions are met, and so regulation 5 cannot be exhaustive of the circumstances in which a person will be treated as being in full-time education (paragraphs 35 to 41); 3. concentration on the hours actually spent is the wrong approach under regulation 5; the task of the fact-finding tribunal is, having balanced what is offered and what is 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 by way of testing the conclusion, whether the claimant is receiving full-time education (paragraphs 42 to 51).
Decision(s) to Download:	CG 0449 2008-00.doc [2010] AACR 42 bv.doc