Decision No:  C3/99(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

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

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKER'S ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from a Tribunal's decision
dated 22 June 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by the Chairman, against a decision dated 22 June 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Enniskillen.  That Tribunal had disallowed Miss A...'s appeal in relation to a decision dated 19 March 1998 of an Adjudication Officer.  That decision reviewed an earlier decision of 19 February 1998 in relation to the taking into account of grant income in assessing the amount of Jobseeker's Allowance to which Miss A... was entitled.

2.	The Adjudication Officer's revised decision was that no grant income should be taken into account for the benefit week commencing 8 March 1998 and thereafter.  As the earlier decision was therefore only partially altered it remained intact for the period prior to the benefit week commencing 8 March 1998.  For that period the standing decision was that the weekly grant income to be taken into account was £34.01 per week.

3.	The facts of the case which are not in dispute were that Miss A... made a claim to Jobseeker's Allowance on 22 January 1998.  She had previously commenced a full-time course in Veterinary Medicine at University College Dublin.  She had given up this course on 16 January 1998 but had received a grant for the term January 1998 to April 1998.  She repaid the outstanding grant which was in the sum of £469.76 to the Western Education and Library Board on 11 March 1998.  The total overpayment of grant was repaid in full.  The grant for the academic year 1997 to 1998 was £1,755 in total - the period the grant was to cover was 38 weeks and three days.  Miss A... had received a grant which was non-repayable for the term to Christmas 1997 and had received a grant which was repayable and which she did repay for the term January 1998 to April 1998.

4.	The Tribunal decided that no grant income should be taken into account from the benefit week commencing 8 March 1998 but prior to that grant income of £34.01 per week was to be taken into account.  In essence the grant income was taken into account over the period up until it was actually repaid.

5.	Using an OSSC1 (NI) form dated 4 December 1998 Miss A... appealed.  Her grounds of appeal were that the Tribunal had erred in its interpretation of regulation 94(2A) of the Jobseeker's Allowance Regulations (Northern Ireland) 1996.  Miss A... submitted that the proportion of the grant which was repaid by her after she gave up her course should not be treated as her income.  She had abandoned her course and was no longer a student.  Miss A... relied on the principles contained in R(SB)20/83 and CAO v Leeves, 6 November 1998, (the appeal from Commissioner's decision CIS/12263/1996) to support her appeal.  She submitted that in R(SB)20/83, it was held that "An accrual of money to a student under an obligation to repay" would not, in general, be regarded as "income" of that student.  In CAO v Leeves the Court of Appeal approved this principle and found that the ordinary understanding of "income" did not include an apportionment of amounts which a person no longer had and was under an immediate obligation to repay.

6.	Observations on the grounds of appeal were made by Mrs McRory of Central Adjudication Services representing the Adjudication Officer.  Mr McRory submitted that rather than supporting Miss A...'s argument, R(SB)20/83 supported the argument that her grant income should be taken into account.  She referred particularly to paragraph 9(7) thereof.  With relation to the Leeves case Mrs McRory again submitted that the Court of Appeal in that case had held the Commissioner in decision CIS/12263/1996 was in error in deciding that a constructive trust existed.  The court had held that an income that was subject to a certain and immediate obligation to repay either the income itself or an equivalent sum, was not income for Income Support purposes.  The grant should not have been taken into account in that case once the County Council had asked for it to be repaid.

7.	However, at page three of the decision Lord Justice Potter stated:-

"[the Commissioner's] decision was reached on the basis that the 
regulations then applicable to the claim were Income Support 
 (General) Regulations 1987...  As the Commissioner pointed out 
in his decision, so far as any claim made after 7th April 1997 
is concerned, the answer would be bound to be different by reason 
of an amending regulation."

Lord Justice Potter then went on to quote paragraph (2b) of regulation 29 of the Income Support Regulations which have the same wording as paragraph (2A) of regulation 94 of the Jobseeker's Allowance Regulations.

8.	Ms Slevin of the Law Centre (NI) made further observations by letter of 26 May 1999.  She submitted that this appeal was distinguishable form R(SB)20/83 in that the loan in the latter case was to be repaid within four years.  In this case the amount which was paid to Miss A... became immediately repayable when she withdrew from her course.  The general principles set out by the Commissioner in that case should therefore be applied in this case in that as Miss A... had an obligation to immediately repay the amount which she had received, it should not, in Ms Slevin's submission, be treated as her income.

9.	Ms Slevin also submitted that the Tribunal should have first considered whether the amount paid to Miss A... counted as income for the purposes of Part VIII of the  Jobseeker's Allowance Regulations (Northern Ireland) 1996.  Regulation 94(2B) refers to grant income as defined by Chapter IX of Part VIII of those Regulations.  However, regulation 130 of the Regulations is a definition section in relation to full-time students.  She referred me to a query raised at page 183 of the 1998 edition of Mesher and Wood's "CPAG's Income Related Benefits:  The legislation"  as to whether regulation 29(2B) would be relevant where the balance of the grant was immediately repayable and the claimant had ceased to be a student as grant income only applied where the person was a student.

10.	I held a hearing of the appeal.  There appeared to be no contest as to the amount of grant paid and as to the amount which was to be attributed as income for Jobseeker's Allowance purposes if the grant income was to be considered as income.  In addition, neither party advanced any argument that the grant was held on a constructive trust.

11.	At hearing Ms Slevin stated that when she lodged her appeal she did not have the decision of the court in CAO v Leeves.  She submitted that the comments of Potter L.J. were obiter.  Apart from this the parties reiterated the arguments addressed in the correspondence.  Initially Ms Slevin had some concerns as to whether the claimant had ever been a full-time student, but in subsequent correspondence this issue was not pursued and I think that Ms Slevin was correct not to do so as it is quite apparent from the letters from University College Dublin that Miss A... was on a full-time course.

12.	My decision is that the Tribunal's decision is not in error of law and that this appeal is dismissed.

13.	The relevant legislation is as has been stated above contained in regulation 94(2A).  That regulation provides:-

"Where grant income as defined in Chapter IX of this Part has been 
paid to a person who ceases to be a full-time student before the 
end of the period in respect of which that income is payable and, 
as a consequence, the whole or part of that income falls to be 
repaid by that person, that income shall be taken into account 
over the period beginning on and including the date on which that 
income is treated as paid under regulation 96 and ending -

(a)	on the date on which repayment is made in full, or

(b)	on the last date of the academic term or vacation during which that person ceased to be a full-time student,

whichever shall first occur."

14.	It is quite apparent from this that the said regulation 94(2A) contemplates a student ceasing to be a full-time student before the end of a period covered by grant income.  It uses the definition of grant income.  It does not say that the person must continue to be a student, quite the reverse.  A person who has ceased to be a student can quite obviously still be in receipt of grant income as happened in this case.  The grant income was paid while Miss A... was a student and she retained receipt of it for a period after she ceased to be a student and until she repaid it.  The fact that the person ceases to be a student does not stop the grant income being grant income.  I do not agree with Ms Slevin's argument in this respect.

15.	As regards R(SB)20/83, I again do not consider that Ms Slevin's argument based on this decision is correct as the decision was made before the coming into force of regulation 94(2A).  That regulation obviously contemplates a situation were a person is liable to repay a grant.  It does, after all, refer to the period up to repayment.  I therefore reject Ms Slevin's argument based on that decision.

16.	I can ascertain no error in the Tribunal's decision either as referred to by Ms Slevin or in any other way.  I therefore dismiss the appeal.

(Signed):  M F Brown

COMMISSIONER

6 January 2000