[2005] UKSSCSC CCS_1181_2005 (18 July 2005)

DECISION OF THE CHILD SUPPORT COMMISSIONER

1.	My decision is given under section 24(2) and (3)(a) of the Child Support Act 1991. It is:
I SET ASIDE the decision of the Brighton appeal tribunal, held on 14 January 2005 under reference U/45/171/2004/00072, because it is wrong in law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is the same as that of the appeal tribunal, which is to dismiss the absent parent’s appeal against the Secretary of State’s decision under appeal. 

The appeal to the Commissioner
2.	This appeal comes before me with the leave of a district chairman. It concerns the formula assessment of child support maintenance in respect of Daniel and Ben. The issue is whether Daniel is a qualifying child for the purposes of the child support scheme. Specifically, it is whether Daniel was receiving full-time education when he was not attending for all his timetabled work. 
3.	In terms of the child support legislation, the appellant is Daniel’s absent parent and the second respondent is his parent with care. I shall refer to them in those terms. The Secretary of State has not supported the appeal. The parent with care has made a ‘no comment’ response to the Secretary of State’s observations and the absent parent has made detailed observations. 
Evidence
4.	The evidence of Daniel’s timetable and attendance was contained in this letter:
I am writing to provide you with the information … regarding the timetable of Daniel from September 2002.
I hope that the following notes will be of assistance to you:
•    Daniel was enrolled on a full-time programme of study in the sixth form
•    His main course was the GNVQ Intermediate in Information Technology
•    Additionally, he took a course in GCSE Mathematics in order to re-take the exam
•  He was also enrolled on a course in Communication in order to develop and improve literacy skills (this in place of a re-take GCSE course in English)
Daniel would have had a two week timetable with:
- 19 periods of ICT
- 4 periods of Maths
- 4 periods of Communication
- 2 periods of Tutorial
- 1 period of PSHE
- [10 periods of work experience was also expected to be undertaken]
Each period lasts 60 minutes, making a potential total of 30 taught hours per fortnight. This represents 60% of the 50 period school fortnight. With work experience included, this would represent an 80% occupation of time. We would also expect students to employ much, if not all of the remaining "non-contact" time in independent study and preparation of portfolios. I am unable, from this distance in time, to annotate our attendance records for 2002-03. In other words, any absences which we would regard as "authorised", that is, caused by illness or because Daniel was engaged in approved non-school based learning, will not be reflected in the figures on record. We can verify the following as the minimum attendance for the whole year for Daniel:
Communication:	48%	
PSE:	44%	
Tutorials:	38%	
Mathematics:	58%	
GNVQ ICT:	62%	
Daniel passed his Maths GCSE with Grade D. He achieved a Merit in his ICT GNVQ - the equivalent to 4 GCSE grade B passes. He appears to have concentrated on these courses at the expense of Communication, where his attendance and preparation for accreditation seem to have diminished over the course of the year. In all, Daniel completed a successful year in the sixth form.
The law
The legislation
5.	Section 55 of the Child Support Act 1991 provides that
‘(1)	… a person is a child if-
…
(b)	he is under the age of 19 and receiving full-time education (which is not advanced education)-
(i)	by attendance at a recognised educational establishment; or
(ii)	elsewhere, if the education is recognised by the Secretary of State’.
6.	There is no definition of ‘receiving full-time education’ in the Child Support Act. However, there is power for the Secretary of State to make deeming provisions:
‘(5)	The Secretary of State may provide that in prescribed circumstances education is or is not to be treated for the purposes of this section as being full-time.’
The only deeming provision is in paragraph 3 of Schedule 1 to the Child Support (Maintenance Assessment Procedure) Regulations 1992:
‘Circumstances in which education is to be treated as full-time education
3.	For the purposes of section 55 of the Act education shall be treated as full-time if it is received by a person attending a course of education at a recognised educational establishment and the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course, exceeds 12 hours per week, so however that in calculating the time spent in pursuit of the course, no account shall be taken of time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.’
Deeming provisions
7.	Deeming provisions can operate in either or both of two ways. They may certain what might otherwise involve difficult issues of fact or judgment. The difficulty may lie in the investigation of the issues or in their determination. In the case of paragraph 3, it puts beyond doubt that a person who meets the criteria is receiving full-time education. No further investigation or consideration is needed. Deeming provisions may also extend the scope of a provision by bringing within it circumstances that, on the wording of the legislation, would otherwise not be covered. Taking paragraph 3 as an example, it might extend the scope of section 55(1)(b) to include persons who would not, on the wording of that provision, be receiving full-time education. 
8.	It is important to understand exactly what paragraph 3 provides. It is, as I have said, a deeming provision. Its effect is that, if the conditions set out are met, the student is a child for the purposes of the Child Support Act. However, it is not an exhaustive definition of what constitutes ‘receiving full-time education’. In other words, it provides that ‘education shall be treated as full-time if’. It does not provide that ‘education shall be treated as full-time if and only if’. It leaves open the possibility that a person who is not within paragraph 3 may nonetheless be ‘receiving full-time education’ in the normal meaning of those words. 
Similar social security provisions 
9.	There are a number of similar provisions in the social security legislation. They vary in their wording and their context. It is important to bear this in mind when considering the way that they have been interpreted by the Social Security Commissioners and the courts. 
10.	In R(F) 2/85, a Tribunal of Commissioners considered provisions that were similarly structured to section 55 and paragraph 3. On the Tribunal’s analysis, a person who fell outside the scope of a deeming provision, could nonetheless fall within the basic wording of the statute:
‘13.	… save where the legislature makes provision as to “treating” persons as receiving full-time education who in reality and fact are not doing so, the question whether a person is receiving full-time education within the meaning of that term as used in the … Act is in our judgment a question of fact ….’
The Tribunal later explained (in paragraph 17(2)) how to approach this question of fact:
‘The correct approach is to look to the substance of the situation overall – and beyond the form alone. We re-affirm … the undesirability – indeed impropriety - of an adjudicator’s attempting to prescribe what the legislature has refrained from prescribing or has omitted to prescribe. Accordingly we make no attempt to define exhaustively the circumstances which might properly be taken into account – or the weightings to be attributed to any particular factor.’ 
11.	The result of this is that there are two ways in which Daniel may be a child. He may satisfy the conditions set out in paragraph 3. Or he may come within the ordinary meaning of the words of section 55(1)(b).
The tribunal’s reasoning
12.	The tribunal’s reasoning is mainly set out in the chairman’s detailed decision notice. This was supplemented in the full statement of the tribunal's decision. Omitting the reference to the evidence, the stages in the chairman’s reasoning in the decision notice were as follows.
First, the chairman identified the issue as: ‘whether at the effective date of 08.01.03 Daniel was receiving full-time education (which is not advanced education) by attendance at a recognised educational establishment.’ 
13.	This is correct. It repeats the precisely the wording of section 55(1)(b). That is important, because the operation of paragraph 3 has to be fitted into these statutory words. That paragraph was made under section 55(5) and, therefore, can only affect the words ‘receiving full-time education’. It is not concerned with ‘attendance at a recognised educational establishment’. It is important to bear this in mind, because paragraph 3 refers to attendance, but in a different context. 
Second, the chairman identified the issue raised by the absent parent as whether Daniel had ‘“attended” the course.’
14.	This is correct as a matter of record. This was the way that the issue was put by the absent parent at the hearing. The absent parent argued that ‘by “attendance” at a recognised establishment I would not say that he “attended” full-time education.’
15.	However, that does not mean that that is the correct way to formulate the issue in law. In his formulation, the absent parent drifted from attendance at an establishment to receiving education. Those are different concepts in the context of section 55: the former links the person to an establishment providing education and the latter links the person with the education provided by the establishment. It is the education received that has to be full-time, not the attendance. 
16.	Clarity of issue is also important when considering paragraph 3. This is, as I have emphasised, is a deeming provision relating to whether a person is receiving full-time education. Clarity is especially important here, because paragraph 3 also uses the concept of attendance, but his time ‘attending a course of education’, not an establishment. This is in contrast to ‘receiving’, which is confined to study and tuition. 
17.	This, I believe, is where the mistake entered into the chairman’s reasoning. He accepted the issue as expressed by the absent parent. What he should have done was to exercise his inquisitorial approach in order to translate the absent parent’s arguments into the legal issues arising on the legislation. I do not blame or criticise the absent parent for putting the issue as he did. He was making a point about ‘attendance’ in its ordinary meaning. It is not surprising that he failed to understand that this word was used with different significance in the legislation. In terms of that legislation, the issue should have been identified as the hours of tuition or study that Daniel was ‘receiving’. 
Third, the chairman linked the evidence and the absent parent’s reasoning to the 12 hour rule in paragraph 3. 
18.	This emphasises that the claimant’s argument is confused in terms of the concepts used in the legislation. The chairman’s summary now refers to the evidence that ‘Daniel had not attended a minimum of 12 hours study’. That confuses receiving study or tuition with attending a course. The significance of the 12 hours is as a number of hours of tuition or study received, not the number of hours that Daniel attended the course. 
Fourth, the chairman considered R(SB) 40/83, which dealt with a similar provision in the income support legislation.
19.	This shows that the chairman had been misled by accepting the terms of the absent parent’s argument. The issue in that case was whether the claimant was ‘attending a course of full-time education’. Naturally, the Commissioner emphasised on that wording that it was the course and not the student that had to be full-time. The Commissioner emphasised this in paragraph 17 of his decision, where he distinguished R(SB) 26/82, which concerned similar wording to section 55(1)(b), although in a different legislative structure. 
20.	In reliance on R(SB) 40/83, the chairman decided that Daniel’s course was full-time and that it was irrelevant whether his hours of attendance were full-time. That reasoning is fallacious, because the legislation involved in R(SB) 40/83 was different from that in the child support legislation. 
Fifth, the chairman commented that it was unlikely that the legislation would require detailed inquiry into matters such as whether Daniel ‘had registered for a lesson and then left the class or had attended, or had just day-dreamed in the back’.
21.	These are sensible points that are pertinent to the interpretation of the legislation. See the comments of Mr Commissioner Rowland in R(CS) 14/98 at paragraph 16.
22.	I can now turn to the reasoning in the full statement of the tribunal's decision. The chairman referred to his decision notice and added two paragraphs.
In the first paragraph, the chairman said that he did not need to consider the ‘time spent receiving’ education, because the tribunal found that Daniel was ‘attending a course of full-time education.’
23.	This reasoning shows that the chairman confused the issue that he had to decide. He conflated ‘full-time education’ with ‘attended a course of education’ to produce ‘attending a course of full-time education’.
In the second paragraph, the chairman commented that he was reluctant to interpret the legislation in a way that defeated its aim of providing for child support maintenance while a child was unable to earn a living wage and therefore still a financial burden on the parent with care.
24.	This reasoning is sound so far as it goes. But it is far too general to override the clear wording of the legislation that defines the circumstances which set the liability-no liability boundary of the child support scheme.  It assumes what it seeks to prove. 
Disposal 
25.	The chairman’s reasoning is defective. I must set aside his decision. However, the evidence in this case is not in dispute. The only issue is how the legislation applies on that evidence. In those circumstances, it is expedient for me to substitute a decision for that of the appeal tribunal instead of direct a rehearing.
26.	The tribunal dealt with this case under paragraph 3. I find the evidence insufficient to allow me to apply that provision. I accept the evidence that I have quoted in paragraph 4. It refers only to Daniel’s minimum attendance and expressly excludes absences that are authorised or due to illness. The parent with care was unable to provide the tribunal with more precise information. Also, the figures cover the whole period of the course. It may be that they conceal significant variation over time. This possibility is supported by the writer’s remark that Daniel may have concentrated on Mathematics and Information Technology at the expense of Communication, ‘where his attendance and preparation for accreditation seem to have diminished over the course of the year.’ 
27.	Fortunately, it is not necessary to make findings of fact with the precision necessary to apply paragraph 3. I can apply the words of section 55(1)(b) without any reference to that deeming provision. In doing so, I am freed from the precise terms of and exclusions in paragraph 3.
28.	On the language of section 55, I consider that the evidence shows that Daniel was receiving full-time education by attendance at a recognised educational establishment. I take account of the following. (i) The fact that the course is described as ‘a full-time programme of study’. That is not decisive, but it is a description that is compatible with (ii) the hours allocated to tuition, independent study and preparation of portfolios. (iii) The hours of work-experience. Education is much broader in its scope that it once was. It is no longer limited to ‘talk and chalk’. (iv) The minimum number of hours of tuition that he received. 
29.	I therefore come to the same conclusion as the tribunal, but by different reasoning. My decision is the same as that of the tribunal, which is to dismiss the absent parent’s appeal against the Secretary of State’s decision. 

Signed on original
on 18 July 2005	Edward Jacobs
Commissioner