Decision No: C12/96(IS)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	INCOME SUPPORT

	Application by the claimant for leave to appeal
	and appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Londonderry Social Security Appeal Tribunal
	dated 8 February 1996

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer that there was no grounds to review a previous decision of 22 February 1995 that claimant was not entitled to income support as at all material times he was a student.

2.	The facts are that claimant is a single man aged 22 who resides with his parents and he began a course of study at the University of Ulster, Jordanstown in Applied Economics in October 1993.  It is a BA course, full-time education and is a 4 year course.  He claimed income support on 6 February 1995 because he had failed his examinations taken in January 1995 and was no longer attending his course at Jordanstown.  A letter from the University confirmed that he was not allowed to proceed into the second semester of the academic year but was permitted to resit all first semester examinations in January 1996 but was not required to attend classes.  The Adjudication Officer decided that he remained a student as it was still his intention to complete the course of study in which he had first enrolled and that as he was resitting his examinations he had not been dismissed from the course nor had to abandoned it, therefore he was still a student within the meaning of the regulations.

3.	The regulation referred to is regulation 61 of the Income Support (General) Regulations (Northern Ireland) 1995 in which "a student" is defined as:-

		""student" means a person other than a person in receipt of a 
		training allowance aged less than 19 who is attending a full time
		course of advanced education or, as the case may be, a person
		aged 19 or over but under pensionable age who is attending a
		full time course of study at an educational establishment; and for
		the purposes of this definition -

		(a)	a person who has started on such a course shall be treated 
			as attending it until the last day of the course or such
			earlier date as he abandons it or is dismissed from it;

		(b)	a person on a sandwich course shall be treated as attending
			a full time course of advanced education or, as the case
			may be, of study;"

	The Social Security Appeal Tribunal to which claimant appealed upheld the decision of the Adjudication Officer and found as a fact that he had commenced a Bachelor of Arts course in applied economics at the University of Ulster in October 1993.  It found as a fact that the University confirmed that he was not permitted to proceed into the second year semester, that he had failed his examinations and he was permitted to resit without attending class.  It gave reasons for its decision as follows:-

		"The appellant was intending to resit his examinations in January
		1996 and therefore when he claimed Income Support he had not 
		abandoned his course nor had he been dismissed from it.  It was
		argued that as appellant was actively seeking work and indeed
		got work in May 1995 that he could not possibly be a student. 
		However, the legislation provides for 'treating' a person as a
		student irrespective of whether they are seeking work or not or
		for example, whether or not attending lectures - Regulation 61 
		Income Support (General) Regulations.  There is also provision
		for 'treating' students as not available for employment - see, 
		for example, Regulation 10(h).

		As the claim was made prior to the definition of student being
		amended from 1 August 1995 the Tribunal considered R1/89(IS),
		Court of Appeal judgment in Clarke & Faul delivered 14 February
		1995 and C21/95(IS).  The last decision was of no help as no
		details, facts or reasons was recited in that decision.  This
		Tribunal does not concur with the conclusion reached by the
		majority Court of Appeal in Clarke & Faul preferring the view and
		reasoning adopted by the dissenting Lord Justice Hurst.  The
		words 'period of term or vacation within it', attach, in our
		view, to the course and are not altered, nor do they alter the
		meaning of the legislation, simply because a student intercalates
		a period of time.  Similarly we do not believe that the payment of 
		grants/loans leads to the interpretation given by Lord Justice
		Hoffman.  He does not concur the position of those who do not
		get grants and loans but it seems to us that the words should
		have the same interpretation irrespective of grants/loans but is
		seems to us that the words should have the same interpretation
		irrespective of grants/loans or otherwise.  We note that Lord
		Justice Hoffman referred to Paragraph 5 of Schedule I of the
		Income Support General Regulations.  No reference appears to have
		been made to Paragraph 7 of that Schedule.  We believe that 
		Paragraph 7 read with Regulation 10, particularly Regulation
		10(h)(i) reinforces the conclusion reached by this Tribunal.
		Paragraph 7 limits Paragraph 5 so far as 'students' are concerned.
		Regulation 10 notes those not treated as available for 
		employment and includes 'students' other than those referred
		to in Regulation 10(h).  This in turn, for example, refers to
		Paragraph 7, inter alia.  Clearly, that refers to those 
		'students' who are not required to be available, for example,
		one entitled to disability premium.  As this is not payable 
		for the first 28 weeks of illness (1 year from April 1995) then
		clearly before this the 'student' is 'treated' as not available.
		As it is necessary to be available for work, save those 
		falling within Schedule I, then it is possible for a 'student'
		to be ill for at least 6 months (now 1 year) before being
		entitled to Income Support.  Accordingly, there will be some
		who will fall through the net and not be entitled to benefit. 
		All judges were agreed on the definition of abandonment and 
		with which we concur.  This was as in R1/89(IS).  As the 
		appellant has not abandoned the course nor has he been 
		dismissed from it he is 'treated' as attending it from start
		to finish and therefore not entitled to Income Support."

4.	Claimant now seeks leave to appeal against that decision on the grounds that the Tribunal erred in law in that, "it breached the rules of natural justice, failed to apply the correct law and made a decision supported by no or insufficient evidence.  Totally disregarded GB Court of Appeal Judgment Clarke and Faul also Northern Ireland Commissioner's Decision C21/95(IS).

5.	The Adjudication Officer made written comments before the hearing on claimant's grounds of appeal as follows:-

		"... In the first instance natural justice requires that the
		procedure, before any tribunal which is acting judicially 
		shall be fair in all the circumstances.  It has been described
		as "fair play in action" and its requirements depend on the
		circumstances of the case, the nature of the enquiry, the 
		rules under which the tribunal is acting, the subject matter 
		that is being dealt with and so on.  In the case of an appeal
		by a claimant for benefit to a local tribunal there are 3
		rules: an absence of personal bias or mala fides on the part
		of the tribunal, an obligation to base their decision on
		evidence and, whether or not there is no oral hearing, to
		listen fairly to the contentions of all persons entitled to
		be represented (R(S) 4/82, paragraph 26 refers).

		After carefully considering the record of the proceedings and
		Mr McC...'s grounds to appeal, I can identify absolutely
		nothing to support the allegation that the tribunal breached
		the rules of natural justice in reaching their decision.

		Further points raised by Mr McC...'s representative are
		that the tribunal failed to apply the correct law and based
		their decision on no or insufficient evidence.  I submit
		that the tribunal considered the relevant legislation ie
		regulation 10(1)(h) and regulation 61 of the Income Support
		(General) Regulations (NI) 1987 when determining whether or
		not Mr McC... was a student at the date of claim for 
		income support (6 February 1995).

		However the tribunal did in fact misdirect itself in law by
		not considering the requirements of section 23 of the Social
		security Administration (Northern Ireland) Act 1992.  On 3 
		March 1995 Mr McC... requested a review of the Adjudication
		Officer's decision dated 22 February 1995 that he was a student
		and not entitled to income support.  On 31 March 1995 the
		Adjudication Officer refused to review that decision.  It
		was therefore the "refused to review" decision which 
		Mr McC... has appealed.   Therefore the tribunal have 
		erred in law in reaching their decision without considering
		the review provisions.

		Although the tribunal have erred in relation to the review
		provisions I submit that they have sufficient evidence on
		which to decide that Mr McC... was a student.

		Mr McC... had commenced a 4 year course at the University
		of Ulster in October 1993.  He failed his examinations and
		was not permitted to proceed into the second year semester
		but he intended to resit those examinations in January 1996
		without further attendance at lectures and classes.  However
		he did not do the resits as he obtained employment in
		May 1995.  The tribunal decided that at the date of claim,
		as he intended to resit his exams, Mr McC... was still to
		be treated as a student as he had started a full-time course
		of study which had not ended and that he had neither abandoned
		the course nor been dismissed from it, and relied on NI
		Commissioner's decision R1/89(IS) in support of their decision.

		Moreover at Part 4 of form AT3 (reasons for decision) the 
		tribunal with commendable thoroughness, recorded the reasons
		why they did not concur with the conclusion reached by the 
		majority in the GB Court of Appeal decision Clarke and Faul.

		Although  not binding on the adjudicating authorities in
		Northern Ireland "Clarke and Faul" can be of persuasive
		value.  However the tribunal have nevertheless explained
		why they rejected the majority decision and agreed with the 
		view of the dissenting Lord Justice Hirst.  In addition
		they recorded that they also had regard to C2/95(IS) -
		an unreported NI Commissioner's decision - and concluded
		that it was of no assistance as no details, facts or reasons
		were given in the decision.  I would agree with their 
		reasons as although the Chief Commissioner held that the
		claimant was not a student he omitted to give any reasons
		for the decision and therefore the decision itself is of 
		no precedent value.

		In conclusion I submit that on the evidence before them the
		tribunal were entitled to decide that Mr McC... was a 
		student and therefore not entitled to income support."

6.	At the hearing before me the claimant was present and was represented by Mr McN… of the Resources Centre and the Adjudication Officer was represented by Mr Lennon.  At the hearing I granted leave to appeal and with the consent of both parties I treated the application as the appeal.

7.	Mr McN… detailed the facts of the case, he said that claimant got his results in February 1995 and that he could not resit again until January 1996.  During the intervening period he was not obliged to attend the University at all and in fact he sought employment during that period and got employment in May 1995 and he stayed in his work and he did not resit the examinations.  He argued that the Tribunal erred in not following the decision of the Court of Appeal in Great Britain.

8.	Mr L… said that he had nothing to add to the observations which he made on the application for leave to appeal.  He said the Department goes along with the dissenting decision in the Court of Appeal in Clarke and Faul.  When I asked him whether he was arguing that the decision of the Court of Appeal was wrong and why should I not accept it, he said that he had no objection to me accepting it.

9.	I have considered all that has been said.  I have considered the Judgment of Lord Justice Hoffman in which he accepts that one must abandon the course completely before one can be said to have abandoned the course and that nothing short of total abandonment can made the definition work.  He then went on to examine the definition and considered that a person is a student if he is attending a full-time course and that for the purpose of that definition the person who has started the course shall be treated as attending "throughout any period of term or vacation within it" and said that one cannot sensibly have a period of term or vacation within the course when a person's attendance at the course has been suspended by an intercalculated period.  Lord Justice Gledwell in referring to the same phrase said "the fact that reference is made to the terms and vacation is an indication, in my view, that it is to those periods and not to the intercalculated year, that the extended definition applies.", and held that a person who is absent from an education establishment during an intercalculated year is not "attending a full-time course of study at the establishment", within regulation 71.

10.	I have  considered all the submissions and the relevant authorities quoted to me. I see no good and valid reason to disagree with the decision in Clarke and Faul.  The evidence in this case is that the claimant left University in February 1995.  He would not be resitting again until January 1996.  It is quite clear he is not attending a course, it is also clear that he is available for employment because in fact he got employment in May and although the Adjudication Officer submitted, and I accept that the Court of Appeal in Great Britain is not binding in Northern Ireland I consider that unless I hear a good and valid reason why I should not follow that decision I consider myself obliged to follow it.  The attitude of the Adjudication Officer before me was that he was indifferent as to whether I held that the Court of Appeal was wrong or right.  I was surprised to hear that the Department did not accept the opinion of the Court of Appeal in Great Britain.  I accept the reasoning of Hoffman LJ that a person is treated as attending a course only throughout any period of term or vacation within it until the last day of the course that these words apply to only "periods of either term or vacation" and as claimant was not attending a course the period of his absence cannot be described as either term or vacation.  As Lord Justice Gledewell said "The fact that reference is made to terms and vacations is an indication, in my view, that is to these periods, and not to a intercalated year, that the extended definition applies".

	As it is an extended definition of "attending" when clearly the person is not attending, it is clear, in my view, that the extension is intended to cover such periods of non attendance which would previously attract the payment of benefit.

11.	For that reason I allow the appeal and set aside the decision of the Tribunal.  I consider that this is a proper case in which I should exercise the powers vested in me to give the decision which the Tribunal should have given.  I am satisfied that claimant was not a student from 6 February 1995 and was therefore entitled to income support as he satisfied all the other conditions of entitlement.

(Signed):  C C G McNally

COMMISSIONER

5 August 1996