Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:
Reported Number:	R(G)2/02
File Number:	CG 5519 1999
Appellant:	Flemming v. The Secretary of State for Work and Pensions
Respondent:
Judge/Commissioner:	N/A
Date Of Decision:	10/05/2002
Date Added:	28/03/2002
Main Category:	Other current benefits
Main Subcategory:	carer's allowance/invalid care allowance
Secondary Category:
Secondary Subcategory:
Notes:	Invalid care allowance - calculation of number of hours of education - meaning of "attends a course of education at" - meaning of "supervised study" Prior to September 1997 the claimant received invalid care allowance for her mother. However, in September 1997 the claimant began a degree course and, subsequently, her entitlement to benefit was reviewed and withdrawn on the grounds that she was receiving full-time university education. In such circumstances her entitlement to benefit was prevented by section 70(3) of the Social Security Contributions and Benefits Act 1992. A decision on a recoverable overpayment was also made. The claimant's appeal to the appeal tribunal was dismissed. Following an oral hearing, the Commissioner set aside the tribunal's decision and remitted the case to a fresh tribunal. The claimant appealed to the Court of Appeal. She argued that, in assessing whether education was "full-time" (twenty-one hours or more a week) under Regulation 5(1) of the Social Security (Invalid Care Allowance) Regulations 1976, the phrase "attends a course of education at" should be construed as requiring the student's physical presence at the premises of the educational establishment concerned. She further submitted that the expression "supervised study" in regulation 5(2) did not include private study at home. The Court of Appeal dismissed the appeal and remitted the case for rehearing by a differently constituted tribunal in the light of the guidance given. Held, dismissing the appeal, that: 1. (per Pill LJ) the expression "attends a course of education at a university" is to be construed in the sense of being enrolled upon such a course and the expression does not, therefore, bear the locational connotation argued for by the appellant; 2. hours of study away from the premises of the university are therefore capable of coming within the period during which the student is attending a course of education; 3. as regards regulation 5(2), the test of what is "supervised study" does not depend on the period of time for which the supervisor is present with the student; 4. the work must, however, be study directed to the course of education and the curriculum of the course involved, in addition there must also be a degree of direction by and answerability to a supervisor (although the absence of an immediate sanction for failure to do a piece of work does not take the work done outside the definition of "supervised study"); 5. the propositions for the guidance of tribunals and Commissioners on the construction of Regulation 5 stated by the Northern Ireland Court of Appeal in Bronwyn Wright-Turner v Department for Social Development [2002 NICA 2, now reported as R1/02 (ICA)] were agreed with; 6. further, it was also agreed that the ascertainment of hours of attendance is question of fact to be determined by the decision maker or tribunal; 7. (per Chadwick LJ) the phrase "receiving ... education by attendance at" which appeared in the original form of Regulation 5 when made in 1976 could not have been intended to mean only the receipt of education by physical attendance at classes, lectures and laboratories: on any ordinary meaning of the phrase it must be taken to include private study which is a necessary adjunct to physical attendance at lectures and laboratory work; 8. the phrase "attends a course of education at" in the new regulation was not intended to effect a change in meaning: there is no basis for construing the phrase as imposing a requirement of physical attendance at the premises of the educational establishment; 9. in relation to Regulation 5(2), the words "whether undertaken on or off the premises" in sub-paragraph (b) do not imply that the supervised study which is to be included under sub-paragraph (a) is limited to study on the premises; 10. as to the meaning of "supervised study" that question must be answered by reference to the facts of the particular case; 11. the fact that work is "set" - in the sense that it is work which the student is expected or required, by the curriculum or by a supervising member of staff, to do - will (save in exceptional cases) bring it squarely within the concept of "supervised study"; 12. the approach of the Northern Ireland Court of Appeal in Bronwyn Wright-Turner v Department for Social Development was broadly correct and should be adopted. (Longmore LJ agreed with the judgments of Pill and Chadwick LJJ).
Decision(s) to Download:	R(G)202ws.doc