Law Report: Student who lost placement could not claim benefit

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Driver v Chief Adjudication Officer; Court of Appeal (Lord Justice McCowan, Lord Justice Peter Gibson, Lord Justice Waller) 6 December 1996

A student attending a sandwich course did not become eligible for income support if, during the semester of the course when she was on industrial placement, the firm employing her ceased to do so and she was then in receipt of neither pay nor a student grant.

The Court of Appeal by a majority (Lord Justice Waller dissenting) dismissed an appeal by Hilary Mary Diana Driver against the decision of the Social Security Commissioner, on 8 December 1994, that the appellant did not qualify for income support on 5 November 1991 because she was then a student within the meaning of the relevant regulations.

Nathalie Lieven (Richard Poynter, Crouch End) for the appellant; Rabinder Singh (Treasury Solicitor) for the respondent.

Lord Justice McCowan said that in September 1989 the appellant began a full time sandwich course in interior design at the Polytechnic of North London. The course was for seven semesters, finishing in February 1993. Semester 5, between September 1991 and February 1992 had to be spent on industrial placement.

In September 1991 the appellant began an industrial placement with a firm of architects but in October 1991 the firm ended her placement because of financial difficulties caused by the recession. The appellant then had no source of income because she was in receipt of neither pay nor her student grant.

She applied for income support but was refused on the ground that she was a student attending a full-time course of study. The Social Security Appeal Tribunal agreed and on 8 December 1994 the Commissioner upheld that decision.

On 14 February 1995 the Court of Appeal decided, in Chief Adjudication Officer v Clarke and Faul (Law Report, 15 February 1995), that a student who withdrew from his course during an intercalated period was eligible for income support. Following that decision, the present appellant was granted leave to appeal.

At the material time, reg 10(1)(h) of the Income Support (General) Regulations 1987 provided that a claimant was not to be treated as available for employment (and therefore eligible for income support) if he was a student during a period of study. By reg 2(1), "student" had the meaning prescribed by reg 61, namely:

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 attend-

ing 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;

(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 appellant accepted that she had not abandoned or been dismissed from the course, but argued that she should be treated in the same way as the applicants in the Clarke and Faul case, who were held not to be "students" within the meaning of the regulations during the intercalated periods when their attendance at their courses had been suspended. There were certain unnamed periods in a course which were neither term nor vacation and these, it was said, were the equivalent of the intercalated year relied on in Clarke and Faul.

His Lordship did not agree. The difference in the facts was crucial. The intercalated year could not be equated with the unnamed periods relied on here.

The regulation clearly stated that a person who had started on such a course should be treated as attending it throughout any term or vacation within it until the end of the course.

His Lordship quite understood Hoffmann LJ in Clarke and Faul saying one could not sensibly have periods of term or vacation within the course "when the students are not attending the course at all" or Glidewell LJ that the intercalated year "cannot fairly be described as a period of either term or vacation within the course".

But in this case his Lordship had no problem in concluding that in semester 5, when the appellant was on a sandwich course, she was to be treated as attending a course of study and accordingly ineligible for income support.