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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Feller, R (on the application of) v Cambridge City Council [2011] EWHC 1252 (Admin) (31 March 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/1252.html Cite as: [2011] EWHC 1252 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		31 March 2011

THE DEPUTY JUDGE:

INTRODUCTION

1. This is an appeal against a decision of the Valuation Tribunal for England ("the Tribunal". The Appellant is Dr David Feller, who was a PhD student at the University of Cambridge ("the University") until 2011, when he was awarded the degree. The issue is whether Dr Feller was entitled to be disregarded as a student for Council tax purposes for a period commencing on 1st October 2009, pursuant to Schedule 1 of the Council Tax (Discount Disregards) Order 1992 ("the Order").
2. Dr Feller appeals against the decision of the Tribunal dated 15th October 2010 that he was not entitled to be disregarded. The Tribunal concluded that Paragraph 4.1(b) of Schedule 1 of the Order means that a student must be required to attend at a particular place in order to qualify for the disregard, and therefore that he did not qualify.

BACKGROUND

3. The University's Board of Graduate Studies ("the Board") has published a Code of Practice ("the Code") for graduate research degrees, and the 2008-2009 Code was before the Tribunal.
4. The Code sets out the University's guidelines for courses examined by scrutiny of an extended research dissertation and oral examination only. It states that the Code is:

"....a guide to good practice based on the University's Regulations and the reasonable expectations of students and the staff who teach them and of the University generally. The Code applies in all but exceptional circumstances; any departure from the Code by any party requires evidence of good reason."

5. Section 3 of the Code is concerned with "Courses." Section 3.2 provides in part;

"3.2 PhD, MSc., MLitt, MPhil (examined by thesis and oral only) CPGS

...

The course extends over a minimum period as set out in the chart in Section 3.4.3;

All dissertations must be submitted by the end of the minimum research period unless an extension has been granted.

All PhD candidates are expected to submit within one year of the end of the minimum research period (ie by the end of the 4th year) or within 2 years of the end of the minimum part-time research period (ie by the end of the 7th year).

Candidates who do not submit by their final deadline may be removed from the Register till such time as they are ready to submit......."

6. The chart at 3.4.3 of the Code shows that the earliest date on which a full-time PhD student may submit their thesis is the first date of their 9th term and that they are expected to submit their thesis by the last date of their 12th term (ie just within a maximum of 4 years' full time study).
7. So far as "residence" is concerned, section 3.4.2 of the Code provides that:

"….all full time graduate students are expected to live within 10 miles of the centre of Cambridge while carrying out research in the University" [subject to exceptions].

8. Nothing in that section or in any part of the Code prescribes any places at which the student should physically attend during any part of their study.
9. Section 9.5 of the Code is headed "Leave to work away" from Cambridge. The last sub-paragraph provides, inter alia, that:

"Leave to work away during the minimum research requirement period will not be granted for 'writing up at home'(see 3.4.2 concerning reading outside Cambridge)".

10. It follows that the Board contemplates the possible grant of leave for "writing up at home" after the 9th term.
11. The question of overrunning is dealt with in section 10.5.1 of the Code. The opening lines repeat what is said at 3.2, namely that Candidates for the PhD, MSc or MLitt degrees are expected to submit no later than the last day of the 12th term (ie by the end of the fourth year) but then a possible exception is set out;

"However, where there is good reason, full support from the Supervisor and/or a tutorial case for extension, and with the permission of the Board, a dissertation may be submitted later than this deadline. An extension of time can be granted for no more than 12 months at any one time."

12. Where a PhD student does not submit, and no extension is granted, the Code continues at page 41 that:

"…the Board will ask the Degree Committee to recommend whether or not the candidate should be removed temporarily from the register pending the completion of the thesis."

13. I pause to say that the expressions "thesis" and "dissertation" are used interchangeably by the University.
14. Section 10.5.2 of the Code provides for relief from payment of fees for full time PhD students who have not submitted their thesis by the end of the 9th term, and who "are no longer making significant use of University facilities..."
15. It is only in exceptional cases that the University charges fees to full time PhD students who have not submitted their thesis by the end of the first three years.
16. The Council has been in discussion with the University for some time, to enable it better to understand the way in which PhD study at the University is intended to work.
17. Following discussions with the University, the Council has accepted that it would generally regard the statutory requirements in relation to the disregard as satisfied until the end of a PhD student's fourth year, but once the fourth anniversary has passed, it has been the Council's general position that PhD students at the University who have not yet completed their studies and submitted their thesis, but who are required to seek an extension, are not subject to any attendance requirement, and therefore should not be entitled to the benefit of the disregard.
18. Dr Feller began a (full time) course for the degree of Master of Philosophy at the beginning of October 2005 and successfully completed that course, being awarded the MPhil degree on 14th October 2006.
19. From the beginning of October 2006 he commenced the (full time) course for the PhD degree. The University regulations permit terms of research spent before commencing the PhD course, including terms of research while studying for the MPhil degree, to be allowed by the Board towards the minimum required number of terms of research for the PhD degree. Such an allowance was granted in Dr Feller's case.
20. On 20th November 2009 Dr Feller submitted to the Council a Student Status Application Form in order to secure for himself exemption from Council tax for the academic year 2009-2010, by the application of the student disregard under the Order.
21. On 3rd December 2009 Mr Joseph, the Council Tax Assessment Officer, wrote to Dr Feller refusing his application, and stating:

"Following extensive discussions with the University, it is the authority's position that PhD students may be classified as students for the first 4 years of their course. Where an MA or an MPhil course is completed prior to a PhD, it is understood that the MA or MPhil course forms the first year of the students PhD course.

Although your new certificate states your PhD course started in October 2006 and is therefore due to finish in 2010, your original exemption certificate which you supplied whilst at 9 Benson Place stated that your PhD course started in October 2005 and is due to end in 2009.

Unfortunately, I am therefore unable to consider you as a student for Council Tax purposes as you have completed 4 years of your PhD course already according to your original certificate."

22. The letter concluded by stating that Dr Feller could appeal to Mr Mike London, the Council Tax Team Leader.
23. By letter dated 14th December 2009, Dr Feller appealed to Mr London. In that letter Dr Feller referred to the relevant provisions of the Order, and stated that:

"It is a matter of undisputed historical fact that the Council, applying [those provisions] has recognized me as a full-time PhD student in the University's Department of the History and Philosophy of Science, and my exemption from paying Council Tax from the outset of Michaelmas Term 2006 to the end of Lent Term 2009. Nothing has changed either in the law, nor in my status as a PhD student at Cambridge University since 1 October 2006 to the present time; I remain amidst the research and writing for my degree, and will remain a PhD student of the University until such time as I have completed the PhD course (or abandon it, or am no longer permitted by the University to attend it)."

24. By letter of 29th January 2010 to Dr Feller, Mr London referred to the Order and stated that after discussions and debate with the University, the Council:

"... concluded that a student undertaking a PhD would 'normally' meet the required attendance criteria in the first four years. However, those students overrunning the four year research and submission deadline period would have to demonstrate what exceptional circumstances beyond their control prevented him or her from completing within the allotted time."

25. Mr London concluded his letter by stating that Dr Feller must demonstrate:

"….why you are 'required' to attend your educational establishment for the period 1 October 2009 to 31 October 2010 and what exceptional circumstances beyond your control prevented you from completing your course by the 30 September 2009."

26. On 24th April 2010 Dr Feller replied, suggesting that the MPhil year did not count as part of the four years' PhD research. I should say that he does not now argue this point.
27. By letter dated 18th May 2010 Mr London dismissed Dr Feller's appeal, stating that the MPhil year did count as part of the four years' PhD research, and stating that:

"Regrettably….I must inform you that I am unable to uphold your appeal because; you have not demonstrated exceptional circumstances beyond your control….which prevented you from completing your PhD by the 30 September 2009, being the four year point of your overall course."

28. By notice dated 5th July 2010, Dr Feller appealed to the Tribunal.

THE TRIBUNAL'S DECISION

29. In its decision dated 15th October 2010, the Tribunal dealt with three appeals; that of Dr Feller, and those of Ms C Marx and Dr C Acreves.
30. Paragraph 13 of the decision states:

"Following a question, Dr Reid [who appeared for Dr Feller] informed the Panel that none of the appellant's [sic] were required by the University to attend any specified premises during the periods for which he contended that each appellant should be disregarded for council tax purposes."

31. I should point out that it is accepted on both sides that although Dr Reid accepted that the appellants were not required to attend specified premises he mentioned the residence requirement to which I have already referred.
32. In its conclusions the Tribunal stated:

"22 It was not disputed that each appellant was enrolled on a course with the University, so the requirements of paragraph 3 (a) were satisfied. However, parties disagreed over the interpretation of paragraph 3 (b). Dr Reid contended that this requirement had been met by each appellant, as their respective courses were not completed until the Board of Graduate Studies had approved their dissertations, whereas the billing authority contended that the course was completed when the research element had been completed, which should, in normal circumstances for PhD courses, be at the end of the fourth year of study. The panel noted that the council tax regulations did not stipulate a maximum length of time that any type of course could continue for, but merely whether the person met the requirements of a student and whether the course in question, met the requirements of a full-time course of education.

23As parties had agreed that the each [sic] appellant was a student, the panel turned its attention to what constituted a full-time course of education and especially to paragraphs 4(b) 4 (c), as paragraph 4 (a) was not disputed. Paragraph 4 (b) stated that a full - time course normally required the person undertaking it to attend (whether at the premises of the establishment or otherwise) for periods of at least 24 weeks in each academic or calendar year. The panel was of the opinion that this paragraph was clear in its requirement for attendance and the High Court decision of Fayed v London South East Valuation Tribunal [2008] appeared to support that opinion.

24 Dr Reid had conceded that, during the periods in question for each of the three appeals, there was no requirement for any of the appellants to attend either the University's premises or elsewhere. The panel concluded from this that the requirements of paragraph 4 (b) had not been satisfied in respect of any of the three appeals.

25 Having reached this conclusion, as the start date of each of the three periods in question were not disputed, the panel did not have to consider the disputed end dates, whether or not the billing authority was correct in normally allowing this discount disregard for a maximum of four years, or the requirements of paragraph 4 (c ), as it was clear from the start date of the respective periods of dispute in each appeal that, on that particular day, none of the appellants satisfied the requirements of paragraph 4 (b)…. And, as a consequence, each of the three appeals had to fail on that point."

LEGISLATIVE BACKGROUND

33. Section 11 (1) of the Local Government Finance Act ("the 1992 Act") provides:

"(1) The amount of council tax payable in respect of any chargeable dwellings and any day shall be subject to a discount equal to the appropriate percentage of that amount if on that day -

(a) there is only one resident of the dwelling and he does not fall to be disregarded for the purposes of discount; or

(b) there are two or more residents of the dwelling and each of them except one falls to be disregarded for those purposes."

34. Section 11 (5) provides that schedule 1 to the 1992 Act is to have effect to determine who is to be disregarded for the purposes of council tax discount.
35. Paragraphs 4 and 5 of schedule 1 to the 1992 Act provide in part as follows:

"4 (1) A person shall be disregarded for the purposes of discount on a particular day if-

(a) on the day he is a student, student nurse, apprentice or youth training trainee; and

(b) such conditions as may be prescribed by order made by the Secretary of State are fulfilled.

(2) In this paragraph 'apprentice', 'student', 'student nurse' and 'youth training trainee' have the meanings for the time being assigned to them by order made by the Secretary of State.

5 (1) An institution shall, on request, supply a certificate under this paragraph to any person who is following or, subject to sub- paragraph (3) below, has followed a course of education at that institution as a student or student nurse.

(2) A certificate under this paragraph shall contain such information about the person to whom it refers as may be prescribed by order made by the Secretary of State.

…………

(4) In this paragraph -

' institution' means any such educational establishment or other body as may be prescribed by order made by the Secretary of State; and

'student' and 'student nurse' have the same meanings as in paragraph 4 above."

36. The conditions have been duly prescribed, and the meanings assigned, by the Council Tax (Discount Disregards) Order 1992 [SI 1992 no. 548] ("the Order "). Regulation 4 provides in part as follows:

"For the purposes of paragraph 4 of schedule 1 to the Act -

' student' means a person who is to be regarded as…..

(b) a person undertaking a full-time course of education, by paragraphs 3 and 4 of [Schedule 1 to the Order]."

37. Regulation 5 deals with the certificates to be given in accordance with paragraph 5 (2) of schedule 1 to the 1992 Act.
38. Part 1 of schedule 1 is concerned with the definition of "students" and other allied matters.
39. Paragraphs 3 and 4 provide in part as follows:

"3 A person is to be regarded as undertaking a full-time course of education on a particular day if -

(a) on the day he is enrolled for the purpose of attending such a course with a prescribed establishment within part 1 of schedule 2 to this Order and

(b) the day falls within the period beginning with the day on which he begins the course and ending with the day on which he ceases to undertake it

and the person is to be regarded as ceasing to undertake a course of education for the purpose of this paragraph if he has completed it, abandoned it or is no longer permitted by the educational establishment to attend it.

4 (1) A full-time course of education is, subject to subparagraphs (2) and (3), one -

(a) which subsists for at least one academic year of the educational establishment concerned……………..

(b) which persons undertaking it are normally required by the educational establishment concerned to attend (whether at premises of the establishment or otherwise) for periods of at least 24 weeks in each academic or calendar year (as the case may be) during which it subsists and

(c) the nature of which is such that a person undertaking it would normally require to undertake periods of study, tuition or work experience which together amount in each such academic or calendar year to an average of at least 21 hours a week during the periods of attendance mentioned in paragraph (b) above in the year."

40. Paragraph 1.a to Schedule 2 to the Order provides that:

"An institution is a prescribed educational establishment within this Part if it is (a) a university (including a constituent college, school or other institution of a university)."

ANALYSIS

Submissions

41. On behalf of Dr Feller, Mr Drabble submitted that the Tribunal erred in law in applying the requirements of paragraph 4 of Schedule 1 to the Order personally to Dr Feller, instead of to the PhD course itself on which Dr Feller was enrolled. Mr Drabble submitted that it is paragraph 3 of Schedule 1 that Dr Feller had personally to satisfy. Paragraph 4 defines a full time course of education, and if the PhD course satisfied that definition, Dr Feller qualified for the disregard, because he was enrolled on that course. The PhD course did satisfy the definition in paragraph 4, argued Mr Drabble. In particular, paragraph 4 (1) (b) did not require attendance at any particular place.
42. Mr Bhose for the Council sought to uphold the Tribunal's decision. He submitted that:

(a) For a course to be a full time course of education it must satisfy all three of the requirements in paragraph 4 (1) of Part 1 of Schedule 1 to the Order; see Wirral BC v Farthing [2008] EWHC 1919 (Admin) at paragraph 21.

(b) Although the focus of the normal requirements is to look at what is required of students as a class, this does not prevent one from considering what is actually required of, or undertaken by, an individual student. This is particularly so in the case of post- graduate qualifications, where students are required to undertake an individual and substantial body of original work. Indeed, in such cases the University's " normal requirements" may in fact be specific to them.

43. Mr Bhose further relied on R (Fayad) v London South East Valuation Tribunal [2008] EWHC 2531 (Admin), a decision of Mr Neil Garnham QC sitting as a Deputy High Court Judge. That case concerned a PhD student at Imperial College London. At the relevant time Mr Fayed was engaged in writing up his thesis. The judge found that he did not qualify for the disregard, because the requirements of paragraph 4 of Schedule 1 to the Order were not met.
44. It is appropriate to set out paragraphs 21 onwards in which the judge draws his conclusions;

"21 Miss Henderson subjected paragraph 4 to close analysis. She emphasised the wording in sub-paragraph (b) that a full - time course of education is one which persons undertaking it are normally required by the education establishment concerned to attend, whether at premises of the establishment or otherwise, for periods of at least 24 weeks a year. She was prepared to contemplate the possibility that the word 'attend' in sub - paragraph (b) meant ' give their attention to', but she said that that did not fit in with the scheme of the paragraph when read as a whole.

22. Having given this point some anxious scrutiny, I have come to the conclusion that Miss Henderson is right about that. Whilst she was acting entirely properly in conceding, against her client's interest, that 'attend' might mean something other than physically attend, I have no doubt that it does indeed mean physically attend. The words 'to attend' are followed in parenthesis by the words ' whether at premises of the establishment or otherwise'. The use of the words ' or otherwise' just about make possible Miss Henderson's alternative construction, but the only natural reading of these words indicates a provision that students are normally required to attend at some identified place.

23 The purpose of this paragraph is to define full - time education. As Miss Henderson points out, for our purposes there are two essential elements to that definition: first, the paragraph (b) requirement to attend for a prescribed number of weeks; and second, the paragraph (c) requirement to undertake periods of study tuition or work experience for an average of 21 hours a week during the periods of attendance mentioned in (b). If attendance in sub- paragraph (b) meant 'give their attention to' it would be surprising in the extreme if there were then a separate discrete condition as to the activities to be carried out during that period of 'attendance'.

24 I am wholly satisfied that sub - paragraph (b) means that the College must normally require attendance of students on the material course at some identified place. Since, as Mr Fayad rightly concedes, he was not required to attend at a particular place when writing up his thesis, he is not, for the very special purposes of these provisions, to be regarded as engaged in a full - time course of education, and therefore cannot benefit from the discount arrangements."

45. Mr Bhose drew from the decision in Fayad. the proposition, crucial to his case, that "attendance" in the context of paragraph 4 (1) (b) means attendance at a particular place.

Discussion

46. Was the Tribunal correct in deciding that Dr Feller was not entitled to the disregard provided by the 1992 Act? By paragraph 4 of Schedule 1 to the 1992 Act, he was to be disregarded for any particular day if on that day he was a student. "Student" is defined by Regulation 4 of the Order as being a person who is to be regarded as a person undertaking a full time course of education. Paragraph 3 of Schedule 1 to the Order deals with the circumstances in which a person is to be regarded as undertaking a full time course of education, and paragraph 4 defines the term "full time course of education".
47. It is not disputed by the Council that if his PhD course was a full time course of education as defined by paragraph 4, Dr Feller complied with paragraph 3, because on the relevant day he was enrolled for the purpose of attending that course with the University, which is a prescribed establishment, and that day fell within the period beginning with the day on which he began the course and ending with the day on which he ceased to undertake it.
48. The real issue in this case centres on paragraph 4. That paragraph defines a full time course of education. His Honour Judge Hodge QC, as he then was, rightly held in Wirral Borough Council v Michael Farthing [2008] EWHC 1919 (Ch) that all the requirements of paragraph 4 have to be complied with for a course to be a full time course of education. If, therefore, any of subparagraphs (a) to (c ) is not complied with, then the course cannot fall within the definition. In the Wirral case, paragraph 4 (1) (a) was not complied with. That is not the case here. The dispute is in relation to paragraphs 4 (1) (b) and (c).
49. The requirements of paragraph 4 are to be applied to the course which the person is following. In summary, 4 (1) (b) requires that the course be one which persons undertaking it are normally required to attend (whether at the premises of the educational establishment or otherwise) for periods of at least 24 weeks in each academic or calendar year. Paragraph 4 (1) (c) requires that the nature of the course be such that a person undertaking it would normally require to undertake periods of study etc which together amount in each academic or calendar year to an average of 21 hours per week during the periods of attendance mentioned in 4 (1) (b).
50. These are requirements which are applied to the course itself, and not to any particular person, although I accept that the position of a particular person might be evidence of the requirements of a course on which he is enrolled.
51. The meaning of paragraphs 4 (1) (b) and (c) is in my view clear. Those paragraphs define the course on which the person applying for the disregard is enrolled. If the course complies with those requirements, it does not matter whether that person was required to attend for 24 weeks per year, or undertake study or tuition averaging 21 hours per week.
52. It is therefore necessary to ask whether the course Dr Feller was attending was one which fell within 4(1) (b) and 4 (1) (c).
53. The question can be reduced to the following. Is the PhD course followed by Dr Feller one which persons undertaking it are normally required by the University to attend (whether at premises of the establishment or otherwise) for at least 24 weeks in each academic year, as well as undertaking periods of study or tuition averaging (over the 24 weeks or more per year) at least 21 hours per week?
54. The requirements of attendance for at least 24 weeks, and periods of study, tuition or work experience averaging at least 21 hours per week, must be satisfied in "each academic year" during which the course subsists.
55. Mr Bhose for the Council conceded that an average of at least 21 hours of study would be expected from any PhD student throughout the duration of the PhD course.
56. However, he disputed that the requirement of attendance (whether at premises of the academic establishment or otherwise) for periods of at least 24 weeks in each academic year was met.
57. The basis of Mr Bhose's argument was that, as Mr Garnham QC held in Fayad, attendance in the context of paragraph 4 (1) (b) means attendance at a particular place, either at the University's premises or at some other place.
58. Although the Council's position has hitherto been that it would allow the disregard up to the end of the fourth year, Mr Bhose accepted during the hearing that if he was right about the meaning of paragraph 4 (1) (b), and what is required by "attendance", then the PhD course could not qualify under paragraph 4 at all, in any year.
59. The conclusion that if the Council's interpretation of 4 (1) (b) is correct then students on the PhD course do not qualify for the disregard at any stage of their course, is reached by two routes.
60. To begin with, there is no evidence before me that at any stage during the course there is any requirement to attend at any particular place. It is true that until the first day of the ninth term, students are required to live within 10 miles of the centre of Cambridge. But both counsel accepted that this provision does not comprise a requirement to "attend" at any particular place.
61. Further, whatever might be the position in the first three years, Mr Bhose accepted that during the fourth year, which it is expected students are likely to need in order to complete their thesis, there is no requirement to attend at any particular place. As he pointed out, fees are not generally levied on PhD students after their third years, because of the expectation that they will be making less use of University facilities.
62. Given that the requirements of paragraph 4 (1) (b) must be satisfied in "each" academic year, the fact that the attendance requirement would not be met during the fourth year, which is a normally expected part of the PhD course, would of itself mean that the course as a whole would not satisfy the requirements of paragraph 4.
63. The word attendance in paragraphs 3 and 4 is used in the context of attending a course; see paragraphs 3 (a) and 4 (1) (b). Does attending a course necessarily connote being at a particular place? It is, as I have said, suggested by the Council that it does.
64. In his judgement in Fayad, Mr Garnham dealt with the words "(whether at premises of the establishment or otherwise") which follow "concerned to attend" in paragraph 4 (1) (b). He accepted that the use of the words "or otherwise" " just about" made possible the construction of attendance as meaning "give attention to", but said that the only natural meaning of the words in parenthesis indicated a provision that students are normally required to attend at some identified place.
65. He went on to say that if attendance in sub-paragraph (b) meant "give their attention to" it would be surprising in the extreme if there were a separate discrete condition as to the activities to be carried out during the period of "attendance"-ie in paragraph 4 (1) (c).
66. I do not myself think that "attend" in this context would naturally mean "give their attention to", because to have that meaning "attend" would usually be used in its intransitive form, as in "attend to...". I think of the various meanings of "attend" that are given in the Shorter Oxford Dictionary, the one most applicable to the present case is "Be present or go to (a meeting, function etc or its location); go regularly to (a) school, (a) church etc."
67. However, I do not agree that the only natural meaning of the words indicates a provision that students are normally required to attend at some identified place.
68. It seems to me that in the ordinary use of language a person can attend a course or attend a university without being physically present at a particular place for any particular length of time. I agree with Mr Drabble that in an academic context it is a natural use of language to speak of a person attending a course if he is subject to a degree of supervision, in some appropriate contact with the academic authorities, but doing the substantial part of his work in a library, or at home.
69. I think the words ("whether at premises of the establishment or otherwise") are significant, in that the words "or otherwise" are used, as opposed to "or elsewhere". The words "or otherwise" in my view reflect the wide range of situations in which the test falls to be applied.
70. Further, I do not think this is a surprising result, having regard to the fact that there is a separate discrete condition (in paragraph 4 (1) (c)) as to the activities to be carried out during that period of "attendance." It is not surprising that Parliament wished to provide that people attending a course should be required to carry out a minimum of weekly study or work. Otherwise it might be possible for a person to attend a course for many years, and thus claim exemption from council tax, while exhibiting very little commitment to the course.
71. In seeking to support his argument that the attendance requirement is a requirement to attend at a particular place, Mr Bhose referred to paragraph 4(2) of Schedule 1 to the Order. This provides in part:

"In determining whether a course falls within the definition in sub-paragraph (1)-

(a) In applying paragraph (c) of that definition, a person is to be treated as undertaking work experience at any time if, as part of the curriculum of the course-

(i) he is at a place of employment of his and is providing services under his contract of employment, or

(ii) he is at a place where a trade, business, profession or other occupation which is relevant to the subject matter of the course is carried on, and he is there for the purposes of gaining experience of that trade, business, profession or other occupation....."

72. Mr Bhose suggested that the fact that paragraph 4(2) provides for work experience to qualify if it is done by a person who is at a particular place, whether it be a place of employment of his or a place where a relevant trade business profession etc is carried on, supports the view that the requirement for attendance in paragraph 4(1) (b) is a requirement to attend at a particular place. I do not agree. To begin with, it is hardly surprising that work experience is envisaged as being done at one of the places described in paragraph 4(2). It is different in that regard from, say, study at home when one is writing up a thesis. Secondly, and in any event, paragraph 4(2) relates to one of the activities referred to in paragraph 4 (1) (c). I do not think it helps define the concept central to 4 (1) (b), which is attendance.
73. Plainly, in taking the view I do of the meaning of attendance in paragraph 4 (1) (b), I have the misfortune to differ from Mr Garnham. I do so, of course, with reluctance and respect, and only because I feel compelled to a different conclusion. However, I am fortified in my view by cases on other legislation which were drawn to my attention by Mr Drabble, but which do not appear to have been cited to Mr Garnham, namely Wright-Turner v Department for Social Development (2002) NICA 2, a decision of the Northern Ireland Court of Appeal, and Flemming v Secretary of State for Work and Pensions [2002] EWCA Civ 641 [2002] 1 WLR 2322, a decision of the English Court of Appeal.
74. Both cases concerned Invalid Care Allowance, and, specifically, the provisions of section 70 of the Social Security Contributions and Benefits Act 1992 ("the Contributions and Benefits Act") and Regulation 5 of the Social Security (Invalid Care Allowance) Regulations 1976 ("the 1976 Regulations").
75. Section 70 (3) of the Contributions and Benefits Act provides that a person shall not be entitled to carer's allowance if he is receiving full time education. Regulation 5 of the 1976 Regulations defines the circumstances in which persons are to be regarded as receiving full time education, and provides in part as follows;

"(1) For the purposes of section 70 (3) of the Contributions and Benefits Act, 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.

(2) In calculating the hours of attendance under paragraph (1) of this Regulation-

(a) There shall be included the time spent receiving instruction or tuition, undertaking supervised study, examination of practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course; and

(b) There shall be excluded any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment."

76. In both cases, as Lord Justice Ward said in Secretary of State for Work and Pensions v Amanda Deane [2010] EWCA Civ 699 at paragraph 34, the court had to deal with the issue whether attendance in Regulation 5(1) requires physical presence at the university, and whether hours spent in doing work at home (ie off the university premises) should or should not be taken into account. In both cases the court took the view that physical presence at the university was not required by "attendance", and that home study should, indeed, count.
77. 77. In Flemming, Lord Justice Pill held:

"[17] I would construe the expression 'attends a course of education at a university' in the sense of being enrolled upon such a course at the university."

78. 78. Lord Justice Chadwick held:

"[31] ...there is no basis for construing the phrase 'attends a course of education at' as imposing a requirement of physical attendance at the premises of the educational establishment....

[32] ...Whatever the true extent of the phrase 'supervised study'-and whether that phrase be given a liberal or a restricted meaning-it is plain that supervised study is private study which is subject to some form of supervision. No satisfactory reason has been advanced to explain why it should be a relevant consideration, in determining whether a person is to be treated as receiving full time education, whether private study which would otherwise qualify as supervised study is undertaken on or off the premises of the educational establishment."

79. Although of course the legislative context is different, I find the approach of the courts in Wright-Turner and Flemming of assistance in forming the view that I have.
80. As Mr Bhose conceded, if it is right that a course can be a full time course complying with paragraph 4 even if it does not require attendance at a particular place, the PhD course for which Dr Feller was enrolled was a full time course as defined.
81. Given that such is my reading of paragraph 4, it follows that the Tribunal erred in law.

CONCLUSION

82. To conclude, Dr Feller was able to place himself within the words of paragraph 4 of Part 1 of Schedule 1 to the Order, and the disregard should have been allowed. In those circumstances, this appeal must be allowed.
83. MR DRABBLE: My Lord, first of all, in terms of the order, following yesterday's discussion I anticipate it need simply say "appeal allowed".
84. THE DEPUTY JUDGE: Right. Thank you.
85. MR DRABBLE: Dr Feller pointed out, in relation to paragraph 1 of your Lordship's judgment, the actual date of the award of the degree was 21 March 2011, as I understand it the thesis was submitted --
86. THE DEPUTY JUDGE: Right. So was he a PHD student until 2010 or 2011?
87. MR DRABBLE: 2011.
88. THE DEPUTY JUDGE: You are a student until you actually get the degree, I suppose.
89. MR DRABBLE: The period that was in dispute before the tribunal was the period identified by then and would be the period until 2010.
90. THE DEPUTY JUDGE: Well, I am sure Mr Bhose would not object to my amending my judgment just to get this fact right. "The appellant is Dr Davis Feller who was a PHD student at the University of Cambridge until 2011 when he was awarded the degree." Why do we not just make it simple like that?
91. MR DRABBLE: My Lord, yes.
92. THE DEPUTY JUDGE: Right. Thank you very much for that factual clarification.
93. MR DRABBLE: My Lord, we have an application for costs. A schedule of costs has been served and is agreed.
94. THE DEPUTY JUDGE: Right.
95. MR DRABBLE: And, I am afraid to say, consist entirely of my fees and the court fees. The total net is £8,450 and the VAT is £1,650, being a total of £10,090.
96. THE DEPUTY JUDGE: Thank you very much.
97. MR DRABBLE: As I say, there is agreement about that.
98. THE DEPUTY JUDGE: Well, thank you both for conferring on that. Mr Bhose, do you have anything to say about that?
99. MR BHOSE: My Lord, I do not. Thank you very much.
100. THE DEPUTY JUDGE: Thank you very much. Well, there will be an order that the appeal be allowed and costs will be awarded in the amount of --
101. MR DRABBLE: Including VAT, £10,090.
102. THE DEPUTY JUDGE: £10,090. I think it is to include VAT, is it not?
103. MR BHOSE: It should do, unless the university can claim the VAT back. I do not know if Dr Reid knows about that? If they cannot recover the VAT they are entitled to it.
104. THE DEPUTY JUDGE: Very well. There will be an order.
105. Anything else? Thank you very much.