R(IS) 5/97

Mr. M. Heald QC	CIS/5034/1995
16.4.96
Student - bar vocational course - whether a “full-time course”
The claimant, a law graduate, had from October 1993 been attending a bar vocational course. On 10 May 1994 he submitted a claim for income support stating inter alia that he was spending nine to ten hours per week on his studies. Evidence contained in a letter from the Registrar to the Council of Legal Education as to the status of the course included the following: that the bar vocational course is compulsory for those who wish to qualify as a barrister and practice at the Bar of England and Wales; that the school did not formally designate the course as either full or part-time; but that the course required attendance at the Inns of Court School of Law of, on average, 15 hours each week for a total of 30 weeks and in addition it was envisaged that each student would spend approximately 20 hours each week in unsupervised private study. The social security appeal tribunal, accepting the evidence contained in the letter from the registrar, decided that the claimant was a full-time student within the meaning of regulation 61 of the Income Support (General) Regulations 1987 and so not to be treated as available for employment and stated that in doing so it had regard to R(SB) 40/83 where it was said that “it is the course and not the student which is to be full-time” and “the number of hours the student actually attends is irrelevant”. R(SB) 25/87, which concerned a qualified barrister who claimed benefit during his pupillage, was distinguished. The claimant appealed to the Commissioner. 
Held, dismissing the appeal, that:
in the absence of any contention that the School of Law was not an educational establishment, the course was a “course of study” giving an ordinary meaning to those words, the length of which could be taken to be 35 hours since time required to be spent outside the formal attendance at the School could be taken to be part of the course as a whole. The course was of a definite length with no possibility of any question of spreading it over a longer, or uncertain, period of time. The appeal tribunal were perfectly entitled to reach the conclusion that the claimant was a “student” for the purposes of regulation 61 and in those circumstances there was no obligation for them to go on to consider whether the claimant was available for employment. The case of the pupil barrister was correctly distinguished.
 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. 	My decision is that this appeal must be dismissed. The claimant was not entitled to receive income support as from 10 September 1994.
2.	 I held an oral hearing of this appeal, at which the claimant appeared in person and the adjudication officer was represented by Ms. J. Hartridge of the Solicitor’s Office, Department of Social Security.
3. 	The claimant, a law graduate, had from October 1993 been attending a bar vocational course at the Inns of Court Council of Legal Education, London. On       10 May 1994 he submitted a claim for income support. On such form he stated that he was undertaking studies in the course, and was spending nine to ten hours per week on his studies. He further stated that the course was expected to end on 23 June 1994.
4. 	Further to such claim, an enquiry was made of the Council of Legal Education as to the status of the course. A reply was received from the Registrar dated 31 May 1994. It confirmed that the claimant was a student on the 1993/94 bar vocational course. The letter went on to state that the school did not formally designate the course as either full‑time or part‑time, continuing:
“The bar vocational course is compulsory for those who wish to qualify as a barrister and practice at the Bar of England and Wales. It is a post‑graduate recognised course for the purpose of reduction/exemption for council tax and eligibility at the discretion of each LEA to whom an intending student may apply.
The bar vocational course is as the name implies, the stage whereby the skills and specific knowledge needed by barristers are acquired in the course of one academic year.
The course requires attendance at the Inns of Court School of Law, of on average, 15 hours each week for a total of 30 weeks.
In addition it is envisaged that each student spend approximately 20 hours each week in private study. This is unsupervised. As the participants on this course are postgraduates the assumption is made they have the capacity to determine themselves how, when and where they study.”
5. 	The adjudication officer decided that the claimant was not entitled to income support. He appealed to the Birmingham social security appeal tribunal, which heard his appeal on 20 October 1994. The tribunal decided that the appeal failed, and that the claimant was not entitled to income support as from the date of claim.
6. 	The material part of the reasons for the decision were:
“It is a condition of entitlement to income support that a claimant is available for employment. A student during the period of study, is not to be treated as available for employment in accordance with reg. 10(1)(h), Income Support (General) Regulations.
The tribunal are satisfied that the claimant falls within the definition of student contained in regulation 61 and that his course was full‑time.
In arriving at this conclusion, the tribunal considered carefully the letter dated 31 May 1994 from the Council of Legal Education. It is clear that the School of Law declined to designate itself either full‑time or part‑time. References to Community Charge Regulations does not assist.
The fact that there are other students on the course who perhaps work part‑time or attend other courses at the same time, as referred to in the said letter, is also inconclusive.
It is clear from R(SB) 40/83 that “it is the course and not the student which is to be full‑time”. Perhaps of equal significance is the statement that “the number of hours the student actually attends is irrelevant”.”
The tribunal, on the terms of the letter referred to, held that the total number of hours required to achieve the necessary standard on the course was 35 per week for 30 weeks. The tribunal went on to distinguish the case R(SB) 25/87, in which a qualified barrister claimed income support during his pupilage. That decision held that to constitute a course, there had to be some set form of curriculum, and that a course of study had to be implemented through an organisation whose primary purpose was education. The reasons continue:
“In view of these conclusions, it is not necessary to consider the availability of the claimant for work as if he was on a part‑time course or not a student.”
7. 	The claimant now appeals, by leave of the Commissioner. The written submission of the adjudication officer dated 2 October 1995 refers to the statutory provisions, of which the most immediately relevant to the issues in this case is the definition of “student” in regulation 61 of the Income Support General Regulations. This reads:
“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 throughout any period of term or vacation within it, until the last day of the course or such earlier date as he abandons it or is dismissed from it ...”
8. 	At the oral hearing, the claimant submitted that he should not be treated as a student within such definition. He argued that the course he was attending was not a full‑time course, but a part‑time course. He went on to submit that the only evidence before the appeal tribunal had been that contained in the letter of 31 May 1994, which was inconclusive, and that there was not sufficient material upon which the appeal tribunal could have reached its conclusion that he was within the definition of “student”. The adjudication officer had relied upon a Commissioner’s decision CIS/50/1990. The Commissioner had stated (record of this case, p. 43) in his view there was no doubt that the 30 hours per week attendance in that case was to be regarded as “full‑time”. The claimant pointed out that the hours of attendance at the School of Law was only 15 hours. The claimant concluded by summarising the grounds on which he argued that he was available for work, so that he would have been entitled to income support, if he had been held to be only working “part-time”.
9. 	Ms. Hartridge, for the adjudication officer, submitted that the cases R(SB) 40/83 and 41/83 had never been questioned and ought to be followed in the present case. The case relating to the pupil barrister was clearly distinguishable. The two cases referred to in 1983 held that the existence or otherwise of a “full‑time course” was basically a question of fact, and the decision of the appeal tribunal should be upheld, unless there was some error of law demonstrated in the course of giving that decision. She submitted that no error of law had been shown. There had been quite sufficient evidence in the letter of 31 May 1994 referred to to justify the conclusions reached by the appeal tribunal. Since they had correctly decided that the claimant was, at the material time, a “student” within the definition in regulation 61, there was no need for the appeal tribunal to go on and consider whether or not the claimant had at the material time been available for employment. If he was a “student” then he was deemed under the regulations to be not available for employment, which was decisive of that question.
10. 	I accept the submissions made on behalf of the adjudication officer, and it follows that I reject those made on the part of the claimant. As to the application of regulation 61, it was not contended before me that the School of Law was not an educational establishment for the purpose of the regulation. I am satisfied that the weekly length of the course, for the purposes of the present case, could be taken to be 35 hours, since, in my view, for the purposes of the bar vocational course the period of time required to be spent outside the formal attendances at the school can be taken to be part of the course as a whole. The course was of a definite length, with no possibility of any question of spreading it over a longer, or uncertain, period of time. The course was, in my view, a “course of study” giving an ordinary meaning to those words. The fact that it involved teaching the claimant and others skills required for advocacy is in no way contrary to the concept that it is “study”. In my view, the appeal tribunal was perfectly entitled to reach the conclusion which they did that the claimant was a “student” for the purposes of regulation 61. In those circumstances, there was no obligation for them to go on to consider whether he was available for employment. This would in the circumstances have been wholly unnecessary for them to consider.
11. 	It follows that this appeal must be dismissed, for the reason that the claimant was excluded from consideration for income support for the reason that he was a “student” for the purpose of that benefit.

Date: 16 April 1996	(signed) Mr. M. Heald QC
	Commissioner