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Neutral Citation Number: 2011 UKUT 2 AAC
Reported Number:
File Number: CG 61 2009
Appellant: Secretary of State for Work and Pensions
Respondent: ZC
Judge/Commissioner: Judge C G Ward
Date Of Decision: 04/01/2011
Date Added: 02/02/2011
Main Category: Other current benefits
Main Subcategory: carer's allowance/invalid care allowance
Secondary Category: Students
Secondary Subcategory: full-time course
Notes: Reported as [2011] AACR 28 Carer’s allowance – meaning of “receiving full-time education” – relevance of hours actually spent – application of Deane to the test in the primary legislation The claimant was enrolled on a three-year BA course, described by the university as full-time. At all material times she was engaged in providing care for her father and was potentially eligible for carer’s allowance. Her claim was refused because she was found to be in full-time education and she appealed. Under section 70(3) of the Social Security Contributions and Benefits Act 1992 a person receiving full-time education is not entitled to carer’s allowance. 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 university stated that the claimant was expected to spend 22 hours in study. The tribunal accepted the claimant’s argument that she was able to spend fewer than 21 hours a week, because of the substantial prior knowledge she had as a result of completing a BTEC course, although she had not been exempted from any modules. The Secretary of State appealed to the Upper Tribunal, arguing that section 70(3) applied wherever a carer was undertaking a course of education which was stated to be a full-time course from the outset, even if they were studying part-time, it having been held in Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699; [2010] AACR 42 that regulation 5 was not exhaustive of the circumstances in which a person was to be regarded as being in full-time education for the purposes of entitlement to carer’s allowance. Held, allowing the appeal, that: 1. as regulation 5 has to be construed consistently with section 70(3), there is a presumption under both provisions that if the course on which a student is enrolled is one offered as a full-time university course, as opposed to a part-time university course, the recipient is in full-time education (paragraph 19); 2. the Secretary of State’s argument was too widely stated to stand as a proposition of law, as it was clear from Deane that, while there was a presumption that a student enrolled on a course described as full-time was receiving full-time education, it was possible for there to be exceptions, whether by virtue of the student being exempt from part of the course or otherwise (paragraph 26); 3. in the present case there was insufficient to rebut the presumption that the claimant, being on a course regarded as full-time, was receiving full-time education and thus that she was disentitled from carer’s allowance under section 70(3). There was therefore no need for further consideration of whether the tribunal erred in law in its approach to regulation 5 (paragraphs 26 to 28).
Decision(s) to Download: [2011] AACR 28ws.doc [2011] AACR 28ws.doc