Neutral Citation no. (2002) NICA 2
Ref:     
CARC3567

 
Judgment: approved by the Court for handing down
Delivered:
11.01.2002
(subject to editorial corrections)

 
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
_____ 
 
BETWEEN
 
BRONWYN WRIGHT-TURNER
 
                                                                                    Appellant
and

DEPARTMENT FOR SOCIAL DEVELOPMENT

                                                                                     Respondent
_____ 
 
CARSWELL LCJ
 
Introduction
            This is an appeal against the decision of a Social Security Commissioner, Mrs Moya Brown, given on 5 October 2000, whereby she  dismissed the appellant’s appeal against the decision of a Social Security Appeal Tribunal dated 20 May 1999, rejecting her claim to be entitled to an award of invalid care allowance.  The appellant on 13 December 2000 applied to the Commissioner for leave to appeal, but the Commissioner refused leave on the ground that the matter did not raise any point of law.  The appellant renewed her application to this court and on 22 March 2001 we gave her leave to appeal.  The Commissioner on 19 July 2001 stated and signed a case for the opinion of this court on the questions therein set out.  
The Statutory Provisions 
            Entitlement to invalid care allowance is governed by section 70(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (the 1992 Act), which provides:
“70.-(1)           A person shall be entitled to an invalid care allowance for any day on which he is engaged in caring for a severely disabled person if –
 
(a)        he is regularly and substantially engaged in caring for that person;
 
(b)       he is not gainfully employed; and
 
(c)        the severely disabled person is either such relative of his as may be prescribed or a person of any such other description as may be prescribed.”
 
The exception on which this appeal turned is contained in section 70(3):
“(3)      A person shall not be entitled to an allowance under this section if he is under the age of 16 or receiving full-time education.”
 
It might be reasonably straightforward in most cases to determine whether a university student is to be regarded as in receipt of full-time education, but that determination is made more difficult by the fact that in pursuance of a power contained in section 70(8) of the 1992 Act the Department of Health and Social Security made regulations prescribing in what circumstances a person is or is not to be treated as receiving full-time education.  These were no doubt designed to facilitate the task of adjudication officers in achieving consistency of decision among applicants for invalid care allowance, but they are so framed as to cover persons receiving education in a wide range of schools, colleges of further education and universities.  They are not specifically designed for university students or apt for their circumstances, and their effect is to increase rather than reduce the difficulty of determining whether any student comes within the definition.
            The material provision is Regulation 5 of the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 1976 (the 1976 Regulations):
“5.-(1)For the purposes of section 70(3) of the Contributions and Benefits Act, a person shall be treated as receiving full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for twenty-one hours or more a week.
 
(2)        In calculating the hours of attendance at a course of education under paragraph (1) of this regulation –
 
(a)        there shall be included 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; and
 
(b)        there shall be excluded any time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment.
 
(3)        In determining the duration of a period of full-time education under paragraph (1) of this regulation, a person who has started on a course of education shall be treated as attending it for the usual number of hours a week throughout any vacation or any temporary interruption of his attendance until the end of the course, or such earlier date as he abandons it or is dismissed from it.”
 
Notwithstanding the wording of the regulation, which has the appearance of a deeming provision, it appears that this definition was intended to be comprehensive.  It was common case that in order to be regarded as being in receipt of full-time education the appellant had to be brought within the definition contained in Regulation 5.
The History of the Proceedings
            The appellant’s claim has had a complex history.  She first claimed in May 1996 to be entitled to an invalid care allowance for caring for her mother.  At that time she was studying for an arts degree at Queen’s University, Belfast.  In her claim form she stated that her course required nine hours of study each week.  The Dean of the Faculty stated in a letter, on the other hand, that she would be expected to undertake approximately 36 hours of work per week, comprised of a mixture of lectures, tutorials and independent study time.  An adjudication officer disallowed her claim, on the ground that she was receiving full-time education.  She appealed successfully to an appeal tribunal, which found that lectures and tutorials took up only thirteen hours per week and that the only supervised study time consisted of a few hours each semester researching and writing up an essay.  The time which she spent in study on her own was to be regarded as unsupervised.
            The adjudication officer appealed to the Social Security Commissioners, and the Chief Commissioner held in a written decision C2/97 (ICA) that the tribunal had failed to apply the correct test in deciding whether independent study time should be classified as supervised or unsupervised.  He agreed with the conclusion reached by some Social Security Commissioners in England that study can be regarded as supervised at university level if work is set by a supervisor and done privately in the student’s own time.  He did not consider that because study is done privately it becomes unsupervised in a university context.  He regarded it as a matter of fact for the appeal tribunal to decide, having regard to the circumstances of the case and applying the principles which he had accepted.
            The matter went back to a differently constituted appeal tribunal, which dismissed the appellant’s appeal, finding that to meet the basic requirements of the course she spent some 24 hours per week in instruction and supervised study.  The appellant appealed again to the Social Security Commissioners, and Mrs Commissioner Brown dismissed the appeal, on the ground that the appeal tribunal had made sustainable findings of fact and had applied the correct test to the classification of private study time, in accordance with the directions given by the Chief Commissioner.
            In its decision the Appeal Tribunal set out a number of paragraphs entitled “Findings of Fact Material to the Decision”:
“1.       On 25 September 1995 the claimant started a 3 year course at the Queen’s University of Belfast.  The course is considered by the university to be a full time degree course.
 
2.         The claimant successfully completed the course on time.
 
3.         Each of the university years is divided into two semesters.  Each semester contains 3 modules.  The semester lasts 15 weeks.
 
4.         The University, in designing its course has a notional amount of hours assigned to each module.  This is composed of formal contact hours such as attendance at lectures and tutorials and often periods when there is no client contact but supervised study is required to include any assignments.  Generally, the figure of 160 hours in total is appropriate per module but there is some variation between faculties.  In the claimant’s faculty 120 hours per module is considered necessary by the University.  This equates to 24 hours a week which includes 9 hours spent in direct contact either at lecturers or tutorials.  The balance is spent in supervised study.  By supervised study it is not meant that a supervisor is physically present but consists of study by the claimant at a time and place of her choosing and for periods of her choosing of work set by her supervisor.
 
5.         Over the academic year the claimant’s average weekly study, including direct contact, exceeds 21 hours.  It is not possible to say how much her study exceeds 21 hours but the Tribunal finds as a fact that to meet the basic requirements of the course she spends in or about 24 hours a week in instruction and supervised study.  It is likely that her study time exceeds this in time spent directly on the course and in peripheral study but this cannot be quantified more precisely.
 
6.         The claimant does no practical work nor does she take part in any exercise, experiment or project in her course.”
 
            The Commissioner sought the opinion of the Court of Appeal on two questions of law:
“(1)      Was I correct in holding that no error arose in relation to the Tribunal’s interpretation of “supervised” and “unsupervised study” in Regulation 5(2) of the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 1976; and
 
(2)        Did I err in law in not upsetting the said Tribunal’s finding of fact that the Appellant spent an average of over 21 hours per week in study over the academic year.”
 
The Parties’ Submissions 
            Mr Larkin on behalf of the appellant submitted, first, that the object of the exclusion of persons in full-time education was to withhold entitlement to invalid care allowance from those whose commitments would make it impossible for them to devote the proper level of care to the invalid.  He contended, secondly, that to be classified as supervised study the work done by the student must be carried out on the university premises, in the physical proximity and under the oversight of a tutor.  He pointed to the word “attends” in section 70(1) of the 1992 Act, citing the opinion of the tribunal of Commissioners in the supplementary benefit case R(SB) 26/82, that attending a course denotes the student’s physical presence, either at the educational establishment or when participating in some compulsory educational activity (such as a botany field class) directly controlled by the establishment.  He quoted the opinion expressed in paragraph 18 of that decision:
“The draftsman’s selection of the word ‘attend’ must import the notion of place or function … He has eschewed such wider terms as ‘following a course of education’ or ‘pursuing a course of education.’”
 
He submitted that the word “supervised” must retain its ordinary meaning, personally overseen by a supervisor, whether the student is studying at a school or a university.  It is accordingly envisaged that to come within the definition in Regulation 5 the student must be carrying out study on the premises of the educational institution in the presence of the supervisor.  He further submitted that the appeal tribunal had failed to examine the facts sufficiently, in particular in respect of study in the Christmas and Easter vacations.  The Commissioner should therefore have reversed the Tribunal’s findings of fact or remitted the appeal for further findings. 
            Mr Maguire for the respondent argued that the policy behind the exclusion of full-time students from entitlement to invalid care allowance was the same as that followed in respect of other benefits, that students’ needs are to be catered for by the education maintenance system.  Invalid care allowance is intended to assist those who give up or reduce their paid employment in order to care for a severely disabled person.  It was not to be resorted to as a source of funding for those engaged in full-time education.  He drew a distinction between attending a place and attending a course (we interpose the comment that the latter is an unfortunately infelicitous usage of the verb).  He submitted that attending a university course should be read as engaging in the completion of the requirements of the course.  These considerations helped to determine the construction of “supervised” in the present context.  If the appellant’s submissions were accepted, virtually no students, undergraduate or post-graduate, in the humanities and in many other areas of study would be classified as persons receiving full-time education, which would subvert the purpose of the exclusion in section 70(3) of the 1992 Act.  He accordingly submitted that the words “supervised study” in Regulation 5 must bear the meaning of study undertaken by a student under the direction of a tutor or supervisor.
The Construction of Regulation 5
            It is undeniable that there are difficulties whichever construction one adopts.  In favour of the appellant’s construction is the use of the word “attends” and the fact that all the other activities referred to in Regulation 5(1)(a) require the physical presence of the student on the premises or on field work, so that construction ejusdem generis with these words might be said to lead to the conclusion that supervised study carries the same requirement.  Moreover, it may be quite feasible for some students engaged in full-time education, unlike persons in full-time employment, to combine that with caring for a disabled person.
            On the other hand, to restrict the category of persons receiving full-time university education to those who are physically on the university premises in receipt of instruction or engaging in study in the presence of a supervisor is wholly unrealistic, for it would exclude the huge majority of students in many disciplines in which the learning process is centred on individual reading of material rather than on lectures or practical laboratory type of work.  It is common for students in many universities to carry out their private study in a variety of places, in libraries, halls of residence, flats or other accommodation off campus or their own homes.  The study being carried out by each may be exactly the same, but it would be productive of undesirable distinctions to treat these students differently for the purpose of entitlement to benefits.  Unlike the case of schools, for which the definition is much more apt, study is not physically overseen at universities, and the commonest arrangement is for the tutor to give the students a reading list for them to cover in their own time, with possibly an essay or other assignment to complete by a stated time.  Even where a course is largely taught by a series of lectures rather than tutorials or seminars, much the greater part of the student’s time is typically spent in reading, before or after the lectures, the material on which they are based.
            It was these considerations which led Social Security Commissioners in a number of decisions to conclude that in the case of university students the term “supervised study” must be intended to mean study under the direction of a supervisor, who prescribes, in broad or more detailed terms, what material the students are to read and leaves them to do so in their own time and at the place and in the manner of their choosing.  It is indeed widely regarded as an essential attribute of the process of higher education that students are guided and encouraged in this way to develop skills of research and absorption and ordering of knowledge and ideas.
Commissioners’ Decisions
            We are unaware of any decision of an appellate court on the issue, but we were referred to a number of decisions by Social Security Commissioners, from which we derived considerable assistance.  The main current of that authority favours the construction advanced by the respondent Department in the present case, that supervised study is not confined to study carried out on the university premises in the presence of an academic supervisor.  A firm dissenting view has, however, been expressed, and this will require consideration.
            The first decision in the former group was CSB/1010/1989, given by Mr Commissioner Rice in 1990.  It concerned the claim of a student on a mathematics A-level course at Brunel Technical College, Bristol to supplementary benefit, to which he was not entitled if he was attending a course of full-time education.  He could claim benefit, however, if he was engaged only in a part-time course of education involving less than 21 hours per week.  The definition of the activities to be counted in calculating the hours for this purpose was similar to that applicable to invalid care allowance.  The claimant had to attend at the College for “contact hours” totalling 19 hours a week, and was expected to spend some 13 1/2 hours per week in private study.
            The Commissioner upheld the decision of a tribunal that the claimant was attending a course of full-time education.  He stated at paragraph 5 of his decision, in a passage which has been frequently quoted since:
“It is to be noted that regulation 7(4)(a) excluded “unsupervised study”.  However, unsupervised study must not be confused with study done in the absence of the physical presence of a supervisor.  Study can perfectly well be supervised if work is set by a supervisor and is to be done privately by the student in his own time.  Most University degree courses proceed on this basis.  The “contact hours” will be few, but the number of hours spent in private study will be considerable.  However, that study, because it is done in private, does not become unsupervised.”
 
This decision was followed by Mr Commissioner Jacobs in CG 16491/96 in 1998.  He stated at paragraph 14 of his decision:
“(a)      “Supervised” is an ordinary English word.  As such, it does not require to be interpreted.  See paragraph 12 of R(F) 1/93.  The only question which arises is: how does it apply on the facts found by the tribunal?
 
(b)       Supervision may take different forms and be exercised to different degrees.
 
(c)        The nature and degree of supervision that is relevant will depend on at least three factors.
 
(i)        What is being supervised.  For example: when an examination is being supervised, the candidates are not left alone, whereas if a teacher is supervising a period of quiet study, the pupils may be left alone for part of the tiem.  All the Commissioner was doing in CSB/1010/1989 was to point out that `supervision’ of `study’ is not necessarily limited to supervision in the physical presence of another person.
 
(ii)       The context in which the supervision takes place.  For example:  the degree of supervision undertaken at a kindergarten will involve tighter control than that at a university.
 
(iii)      The legislative context in which the word is used.  This was emphasised by the Commissioner in R(F) 1/93 at paragraphs 14 to 17.” 
 
The decision in CSB/1010/1989 was also followed by the Chief Social Security Commissioner for Northern Ireland in C2/97 (ICA), to which we have referred.  
            The dissenting opinion was most strongly expressed by Mr Commissioner Levenson in CG/4343/1998, decided in 2000.  The claimant, who cared for her invalid mother, was a student on a degree course at a university.  Her “contact time” consisted of a total of 14 hours per week, and the evidence was that the amount of private study, which she could carry out at home, was in the region of 12 to 14 hours per week.  The social security appeal tribunal allowed her appeal against the adjudication officer’s refusal of invalid care allowance, on the ground that her private study did not constitute  supervised study.  The Commissioner dismissed the adjudication officer’s appeal, holding that (i) the only hours which can be taken into account at all are those spent attending at the establishment (ii) private study, even reading from a prescribed reading list, is unsupervised study.
            At paragraph 7 of his decision the Commissioner stated:
“It is important to note that these provisions have to be construed in the context of invalid care allowance and that the exclusion from the allowance of those receiving full-time education is influenced by the desire that the allowance be restricted to people who are genuinely caring for the disabled person as required.”
 
He also placed some weight on the decision of a Tribunal of Commissioners in R(SB) 26/82, in which the contention was rejected that study other than time spent on compulsory and predetermined periods of private study on the premises of the establishment could qualify as supervised study in a claim for supplementary benefit.  Mr Commissioner Levenson quoted the opinion expressed at paragraph 25 of the Tribunal’s decision that its conclusion –
“seems to us to be the natural and proper construction of regulation 7(2) of the 1980 Regulations.  It has, moreover, the merit of posing questions the answers to which are objectively ascertainable.  Little more need to be done than to refer to the claimant’s school or college timetable.  If benefit officers and appeal tribunals were to be called upon to assess the amount of time spent by a claimant on home-work and/or unscheduled private study on the establishment’s premises they would be faced with an almost impossible task.  The claimant’s own evidence would be virtually incapable of effective verification.  Moreover, a premium would be put on indolence.”
 
It is to be noted, however, that R(SB) 26/82 concerned a claim by a boy of 16 who had returned to his school to study for two further O-level examinations.  The decision is an understandable interpretation of the regulations as they apply to pupils at school, but we cannot agree with Mr Commissioner Levenson that the same conclusion should follow when dealing with university students and their very different patterns of learning.  
            In his discussion of the meaning of attending at an establishment Mr Commissioner Levenson referred to but did not follow the decision of Mr Commissioner Mitchell in R(F) 1/93, a case of child benefit.  The situation in that case was somewhat unusual, in that the claimant’s daughter had not obtained sufficiently high grades in two A-level subjects for university entrance and decided to re-sit those subjects the following summer.  Instead of returning to school and repeating the whole year’s course, she was taught by a special arrangement made through the headmaster of the school.  She received some tuition at the school and was tutored by her former teachers in the relevant subjects, who had both just retired, and worked both in the school library and at home in accordance with the guidance given by the respective teachers.  Her contact hours were below the level of 12 hours per week prescribed by the regulations for full-time education, but it was accepted that she worked as many hours in a week as she would have done if attending the school as an ordinary pupil.  The Commissioner held that she was “in sufficient contact with the school to be properly regarded as attending a course of education thereat”.  When considering the meaning of the word “supervised” he laid emphasis on the fact that those in receipt of “advanced education” are expressly excluded from the child benefit sphere, and that the word had to be construed in the context of schools or similar educational environments.  Not surprisingly he held that in that context “supervised” imported the presence or close proximity of a teacher or tutor.  The decision is accordingly of limited assistance in considering cases of claims by university students to payment of invalid care allowance.
            Mr Commissioner Jacobs reviewed all these decisions in CG/5519/1999, decided in 2001, which was concerned with the entitlement of a university student to invalid care allowance.  Before commencing his review he observed at paragraphs 12 to 15 of his decision:
“12.     Before considering the decisions of the Commissioners, I consider the approach that I would take to this legislation if I were free from authority.
 
13.       The purpose of education is to help the student to acquire knowledge and skills.  They are acquired in two ways.  In part, teachers impart information and instruct in skills.  In part, students assume responsibility for their own learning.  The balance between the contributions of the teachers and the students varies according to the nature and level of the education.
 
14.       The same language is used of all types of education at all levels.  But its meaning varies with the context.  So, the nature of supervision varies.  A teacher “supervising” children at nursery school would need to be present in the room with the children, but a lecturer “supervising” a doctoral research student would not.  Likewise, what is involved in “attending” a course varies.
 
15.       Invalid care allowance may be awarded to anyone who has attained the age of 16.  So, the legislation has to be applied to the range of courses that might be taken from that age.  Given the way that the language of supervision and attendance varies in its meaning, the proper approach is to emphasise the application of the legislation rather than its interpretation.  It is not appropriate to impose on the language an interpretation that is relevant to one particular type or level of education.  Rather it is appropriate for the language to float free of definition so that it can be applied according to the context.”
 
He distinguished R(SB) 26/82 and R(F) 1/93 as being concerned with school education and disagreed with Mr Commissioner Levenson’s interpretation of the legislation in CG/4343/1998.  He agreed with the reasoning and followed the decisions in CSB/1010/1989 and C2/97 (ICA).  He regarded the words “attends” and “supervised study” as ordinary English words, which did not have to be interpreted but applied.  He expressed the view that what is involved in attending a course or undertaking supervised study will vary depending on the nature and level of the course.  He stated at paragraph 37 of his decision:
“37.     It is not possible to lay down rigid rules, as each case will depend on its own circumstances.  But in the case of an undergraduate arts degree, here is a rough guide to how a tribunal could determine the number of hours of supervised study.  The obvious starting point is the number of contact hours for lectures, tutorials and so on.  That will be shown by the student’s timetable.  Then the tribunal must consider the work set as preparation for discussion in class or for written work.  That will probably count as supervised study.  Next, there is the work done as a follow-up to classes or as part of the general background reading for the subject.  It is probably at this point that the issue of whether or not the work is supervised becomes difficult.”
 
Conclusions
            It is not easy to discern the policy reasons behind the framing of the exclusions from benefit and it is tempting to suppose that they have simply been copied from other areas of social security law without giving sufficient consideration to the reasons for enacting them in respect of invalid care allowance.  The respondent’s counsel urged upon us the proposition that students were excluded because they are catered for by the educational maintenance system.  This does not appear to provide a complete answer, for it does not furnish an explanation why young persons of 16 and upwards attending school are excluded, nor does it affect the position of those in gainful employment.  It is difficult to avoid the conclusion that there is at least a savour of an attempt to exclude persons who may be expected to be too heavily occupied in work or study to be able to furnish a level of care to a disabled person to justify payment of invalid care allowance.  In view, however, of the clear conclusions which we have reached on the construction of Regulation 5 we do not find it necessary to express a definite opinion on the policy behind the exclusions, which does not determine our decision.
            We shall express our conclusions in a series of propositions, in as succinct a form as possible, which we hope will provide guidance for tribunals and Commissioners.  We shall refrain from giving examples, which, as Mr Commissioner Jacobs  observed at paragraph 36 of his decision in CG/5519/1999, are more likely to cause problems in later cases than to assist in understanding how to apply the legislation to the facts of a particular case.  These conclusions are as follows:
1.	Section 70(3) of the 1992 Act disentitles from receipt of an allowance a person who is receiving full-time education.  If Regulation 5 is interpreted in a way which excludes from its ambit the large majority of university students, who on any ordinary classification are regarded as full-time students, then it is unlikely that that interpretation is correct. 
2.	The words “attends” and “supervised” are ordinary English words, which take their meaning from the context. 
3.	That context varies, depending on the educational level of the establishment at which the claimant is receiving education. 
4.	 Attending a course of education at a university means engaging in the academic activities required of those who are enrolled in the course. 
5.	One component of a course of education at a university is study of the subject matter of the course, which may be carried on by the students at times and places of their own choosing. 
6.	 Where that study is in discharge of the requirements of the course, as prescribed by those who conduct it, it constitutes supervised study within the meaning of Regulation 5.  It does not have to be carried out on  university premises or in the physical presence of a supervisor. 
7.	Ascertainment of the hours of attendance at a course of education is a question of fact, to be determined by the adjudicating officer or tribunal.  In doing so they will have regard to the university’s requirements of attendance at the formal contacts specified in Regulation 5(2)(a), any estimate furnished by the university authorities of the supervised study time required to complete the course, the claimant’s own testimony and any other source of material evidence. 
8.	The tribunal of fact should ordinarily focus primarily on the standard amount of time which the university authorities expect students to devote to contact hours and supervised study in order to complete the course.  Some students, blessed with the ability to work more quickly than average, will get through the prescribed reading in less than the notionally allotted time, while some, less fortunate or perhaps more thorough and conscientious, will take longer.  It is notorious that others will do a minimum of work during the academic year and seek to pass their examinations with a last-minute burst of effort, leaving the average hours worked over the year materially below the level expected by the university authorities.  
     We also conclude that Mrs Commissioner Brown applied the law correctly in following the decision of the Chief Commissioner in C2/97 (ICA),  which was in accordance with the principles which we have set out.  We therefore answer the first question “Yes”.
The Tribunal’s Findings of Fact
            The second question raises the issue whether the appeal tribunal’s finding of fact that the appellant spent an average of over 21 hours per week in study over the academic year is sustainable.  The evidence from the university, as recorded by the tribunal, was that 120 hours were notionally assigned to each of the six modules in this discipline studied by full-time undergraduate students in each academic year as the necessary time for completion of the course.  The tribunal accepted that the year consisted of two semesters of 15 weeks each.  It divided the total of 720 hours by 30 weeks, which gave an average week of 24 hours, made up of nine contact hours and 15 hours of supervised study.  
      It was contended on behalf of the appellant that the Christmas and Easter vacations should be included in the divider, bringing it up to 38 weeks and the average number of hours down to just under 19 per week.  Counsel for the respondent submitted that Regulation 5(3) prevented this.  The primary purpose of that provision is to prevent students from claiming in vacation weeks that they are not receiving full-time education because they are not attending a course for 21 hours, and it does not govern the calculation of the length of the standard academic week.  We do not see any reason in principle why vacation weeks should be counted in for the purpose of that calculation, any more than school holiday weeks should be included in calculating the length of the standard school week.   It seems to us that by making special provision for vacations Regulation 5(3) gives support to this approach.
      A further suggestion was advanced on appeal before us, that the appellant carried out some of the prescribed study during the Christmas and Easter vacations (she having accepted in evidence that academic work did not carry on over the summer), and that this should have been taken into account by the tribunal, since it would have brought down the term-time average of hours of private study.  No evidence to this effect was recorded by the tribunal, and we do not consider that the Commissioner can be faulted for holding that the tribunal had sufficient evidence upon which to reach its findings of fact.  In any event, for the reasons which we have given we consider that the focus should be on the length of the prescribed week’s work.  We therefore are of opinion that the Commissioner did not err in law in declining to upset the tribunal’s finding of fact, and we answer the second question “no”.
      The appellant’s appeal will accordingly be dismissed.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
_____ 
 
BETWEEN
 
BRONWYN WRIGHT-TURNER
 
                                                                                    Appellant
and

DEPARTMENT FOR SOCIAL DEVELOPMENT

                                                                                     Respondent
_____ 

J U D G M E N T   F O R
CARSWELL LCJ
 
____