Law Report: Students validly denied benefit: Regina v Secretary of State for Social Security, ex parte Rouse; ex p Moore - Queen's Bench Division (Mr Justice Popplewell J), 22 January 1993

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The Secretary of State for Social Security had power under sections 17(2) and 166(2)(a) of the Social Security Act 1975 to make regulations which had the effect, not merely of defining the days to be treated for benefit purposes as days of unemployment or incapacity for work, but of removing a whole category of persons, namely students, from the ambit of social security.

Mr Justice Popplewell refused applications by two students, David Rouse and Robin Moore, seeking judicial review by way of declarations that regulations made by the Secretary of State for Social Security were invalid and should be quashed.

Mark Rowland (Penelope B Wood) for the applicants; Genevra Caws QC and Rabinder Singh (DSS Solicitor) for the Secretary of State.

MR JUSTICE POPPLEWELL said that the Social Security (Unemployment, Sickness and Invalidity Benefit) Amendment (No 2) Regulations 1986 (SI 1011) had amended the principal regulations of the same name (1983 SI 1598) in order to provide that 'in the case of a student a day shall not be treated as a day of unemployment if it is a day on which he is attending his course of education'.

Regulation 6(2) of the Social Security Benefits (Students Loans and Miscellaneous Amendments) Regulations 1990 (SI 1549) then further amended the principal regulations to provide that 'a day shall not be treated as a day of unemployment if on that day a person is a student'. Under paragraph 3 a person was defined as a student during all vacations.

The effect of this was to preclude the applicants from claiming unemployment benefit for the duration of their courses. They argued that the Secretary of State had no power to make such regulations, since section 20(3) of the 1975 Act only permitted him to make regulations 'imposing, in the case of any prescribed category of persons, additional conditions . . .'

But while 'additional conditions' clearly did not cover removing an entire category, it was clear that the Secretary of State had ample power under other sections of the Act, namely sections 17(2) (a) and 166(2)(2), to make the regulations concerned, and section 20(3), which was concerned with 'additional conditions' did not prevent him doing so.

Accordingly, the Secretary of State had power to make the regulations and they were valid.

Paul Magrath, Barrister