Memo DMG 04/11
 
CARER’S ALLOWANCE: FULL-TIME EDUCATION

INTRODUCTION

1      This memo gives guidance on the effect of two UT decisions¹ concerning FTE for CA purposes. These decisions follow on from a recent Court of Appeal Judgement² and should be considered in conjunction with memo DMG 38/10.

Note: Copies of the decisions are attached to this memo.  

¹ SSWP v ZC(CA) [2011] UKUT 2 (AAC); SSWP v PW(CA) [2011] UKUT 3 (AAC);
² SSWP v Amanda Deane [2010] EWCA Civ 699

BACKGROUND

2      The first case¹ concerned a claimant who was undertaking a F/T BA Honours Degree course at university. She undertook less than 21 hours a week of study because she had completed a BTEC National Diploma course on the same subject.  

¹ SSWP v ZC(CA) [2011] UKUT 2 (AAC)

3      The second case¹ concerned a claimant who was undertaking an entry to employment course with a local training provider. The training provider stated the course was F/T but was only for 18 hours per week. The claimant stated she was undertaking the course on a P/T basis.
 

¹ SSWP v PW(CA) [2011] UKUT 3 (AAC)

 
4      In both cases the DM decided that, as the courses were described as F/T by the education establishment, the carer was in FTE, and therefore was not entitled to CA.
 

No evidence of exceptional circumstances or approved exemptions from the courses was supplied by the claimants or the educational establishments.

5      Both claimants made an appeal against the DM’s decision. Both appeals were allowed by the FtT. The Secretary of State appealed both FtT decisions to the UT.

UT DECISIONS

6      In the first case the UT Judge decided that, even though there was an overlap of the BTEC National Diploma and the higher degree course, there was no formal exemption from the degree course. The course was categorised by the university as F/T¹.

Therefore there was no need to consider whether the claimant was treated as being in FTE². The UT Judge decided that the claimant was not entitled to CA on the law as it has now been declared by the Court of Appeal³.

¹ SSWP v ZC(CA) [2011] UKUT 2 (AAC); ² SS (ICA) Regs, reg 5; ³ SSWP v Amanda Deane [2010] EWCA Civ 699

7      In the second case¹ the UT Judge decided that the FtT had erred in law in not considering the relevant legislation² correctly. Although the college designated the course as a full-time course, the hours of attendance were only 18.5 hours per week. The nature of the course was such that private study was not expected of the student. On that evidence the UT Judge decided the course was P/T not F/T and therefore the
claimant was entitled to CA.  

¹ SSWP v PW(CA) [2011] UKUT 3 (AAC); ² SS CB Act 92, s. 70(3)

ACTION TO TAKE

8      If it is clear that the claimant is in fact receiving FTE¹ the DM does not have toconsider whether the claimant is treated as receiving FTE² by calculating the hours. If the course on which the claimant is enrolled is a F/T university course there is a presumption that the claimant is in FTE³.

¹ s. 70(3); ² SS (ICA) Regs, reg 5; ³ SSWP v Amanda Deane [2010] EWCA Civ 699

9      However there can be exceptions to the presumption in paragraph 8 above¹. For example, the claimant may have exemptions from part of the course because they
1.      do not have to undertake all the modules or
2.      have availed themselves of an “Accreditation of Prior Learning”².
 
Therefore, where the claimant is enrolled on a F/T university course but states they study P/T, the DM should consider whether there is an exception to the presumption that they are in FTE.

Note: Cases of doubt should be sent to DMA Leeds for advice.

¹ SSWP v Amanda Deane [2010] EWCA Civ 699; ² SSWP v ZC(CA) [2011] UKUT 2 (AAC)

10     Also, if the claimant is undertaking a course which is not a conventional university course, the exception to the presumption in paragraph 8 above may apply¹. Where the claimant is undertaking such a course, the DM should consider all relevant evidence in order to decide whether the claimant is in FTE. This includes evidence regarding the number of hours of study expected by the educational establishment, and consider if this is less or more than 21 hours per week.  

Note: See DMG 01300 et seq for guidance on evidence.

¹ SSWP v PW(CA) [2011] UKUT 3 (AAC)

11     If it is decided that the course on which the claimant is enrolled is not F/T, the DM
should then consider whether the claimant should be treated as receiving FTE¹ under
the relevant regulations (see DMG 60070 et seq).

¹ SS (ICA) Regs. reg 5

ANNOTATIONS
Please annotate the number of this memo (Memo DMG 04/11) against DMG
paragraph 60068.   

CONTACTS

If you have any queries about this memo, please write to Decision Making and
Appeals (DMA) Leeds, GS36, Quarry House, Leeds. Existing arrangements for such
referrals should be followed, as set out in Memo DMG 26/08 - Obtaining legal advice
and guidance from DMA Leeds.
DMA Leeds: March 2011