Mr Justice Holroyde:
- Ms Cecile Jagoo ("the Appellant") lives in Bristol. Bristol City Council ("the Respondent") is the statutory billing authority for council tax purposes in that city. The Appellant is a student of the University of Exeter, studying for an M Phil/Ph D in Education. She has the misfortune to suffer from dyslexia, and as a result her studies take her longer than they would if she did not suffer from that disability. The Appellant believes that she is entitled to a student's exemption from liability to council tax. She asserted that entitlement when the Respondent assessed her property as liable to council tax, and sought payment from her accordingly. By a letter dated 15th January 2016 the Respondent's Local Taxation officer confirmed that in his view the Appellant was not entitled to a student exemption. On 24th June 2016 the Appellant's appeal against that decision to the Valuation Tribunal for England ("VTE") was refused. She now appeals to the High Court, contending that the decision of the Respondent (upheld by the VTE) was wrong in law.
- I am grateful to both Mr Milsom (for the Appellant) and Mr Mackenzie (for the Respondent) for their written and oral submissions.
- I can deal briefly with a preliminary point which was raised at the hearing before me. The appeal is brought pursuant to regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009. So far as material for present purposes, that regulation provides:
"43.—Appeals to the High Court
(1) An appeal shall lie to the High Court on a question of law arising out of a decision or order which is given or made by the VTE on an appeal under section 16 of the 1992 Act or the CT Regulations…
(2) Subject to paragraph (3), an appeal under paragraph (1) may be dismissed if it is not made within four weeks of the date on which notice is given of the decision or order that is the subject of the appeal…
…
(4) The High Court may confirm, vary, set aside, revoke or remit the decision or order, and may make any order the VTE could have made."
- The appeal was brought by the Appellant, at that stage acting in person, and was not validly commenced until more than four weeks after the date of the VTE's decision. The Appellant had however made clear her wish to appeal, albeit that she did so by an inappropriate procedure, and there was no prejudice to the Respondent as a result of her delay in commencing the correct procedure. It is unnecessary to go into the details of the submissions which were made as to how the court should exercise the discretion granted by the regulation. Both parties submitted, and I accept, that the test set out in Denton v TH White [2014] 1 WLR 3926 was not directly applicable to the circumstances of this appeal. It suffices to say that Mr Milsom advanced a number of reasons why the appeal should be heard, and Mr Mackenzie very fairly indicated that the Respondent adopted a neutral stance. It was in my view clear that this was an appropriate case in which to allow the Appellant to proceed, and I therefore permitted her to do so.
- I should also add, by way of preliminary, that it was common ground during the hearing that the relevant evidence was in a number of respects at best incomplete, and at worst absent; and the Respondent argued that the evidence put forward by the Appellant was insufficient for her to be able to succeed in her appeal. It was however also common ground that the issue of law which arises in this appeal is one which may affect other cases, and I heard full argument on it. Moreover, neither the Local Taxation officer nor the VTE reached their decisions on the basis of a detailed analysis of factual issues: rather, they tacitly accepted the Appellant's assertions as to the facts, but rejected her claim for an exemption on the basis of their interpretation of the relevant statutory provisions. In those circumstances, and notwithstanding the evidential deficiencies, it is in my view appropriate that I should decide the issue of statutory interpretation which lies at the heart of the appeal.
- After those initial observations, I turn to the statutory framework within which this appeal is brought.
The statutory framework: liability to council tax
- By section 4(1) of the Local Government Finance Act 1992,
"Council tax shall be payable in respect of any dwelling which is not an exempt dwelling."
- The classes of dwelling which will constitute an exempt dwelling for this purpose are listed in the Council Tax (Exempt Dwellings) Order 1992. By regulation 3, Class N a dwelling is exempt if the only occupier (or, as in this case, the only occupier and her dependant young child) is a student. By regulation 2, "student" means a person falling within the definition of student in paragraph 4 of Schedule 1 to the 1992 Act. That paragraph empowers the Secretary of State to assign a meaning to the word "student"; and the Secretary of State has done so in the Council Tax (Discount Disregards) Order 1992. The terms of that Order – hereafter referred to for convenience as "the 1992 Order" – lie at the heart of this appeal.
- In material part, paragraph 4 of the 1992 Order defines "student" as meaning
"a person, who is to be regarded as –
…
(b) a person undertaking a full time course of education, by paragraphs 3 and 4 of [Schedule 1 to the Order]"
- It is not necessary for me to set out the terms of paragraph 3 of Schedule 1 to the 1992 Order, which require a "student" to be enrolled with a "prescribed educational establishment" at the material times, because it is common ground that the requirements of that paragraph are fulfilled by the Appellant. The issue between the parties is as to the correct interpretation of paragraph 4(1) of Schedule 1 to the 1992 Order, which provides as follows:
"4.—
(1) A full-time course of education is, subject to subparagraphs (2) and (3), one—
(a) which subsists for at least one academic year of the educational establishment concerned or, in the case of an educational establishment which does not have academic years, for at least one calendar year;
(b) which persons undertaking it are normally required by the educational establishment concerned to undertake periods of study, tuition or work experience (whether at premises of the establishment or otherwise) —
(i) of at least 24 weeks in each academic or calendar year (as the case may be) during which it subsists, and
(ii) which together amount in each such academic or calendar year to an average of at least 21 hours a week."
- With respect to the draftsman, the wording of paragraph (b) is rather clumsy. It might have been preferable if that paragraph began
"in respect of which, persons undertaking it are normally required … "
- It should be noted in passing that paragraph 5 of Schedule 1 to the 1992 Act requires an educational institution to supply on request a certificate containing such information as may be prescribed by the Secretary of State about a person who is following a course of education at that institution.
- Before coming to the facts of the case, and the competing submissions as to the correct interpretation of paragraph 4(1) of Schedule 1 to the 1992 Order, it is convenient to set out the features of the equality legislation on which Mr Milsom relies.
The statutory framework: disability
- By section 6 of the Equality Act 2010 –
"6 Disability
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse affect on P's ability to carry out normal day-to-day activities.
(2) A reference to a disabled person is a reference to a person who has a disability."
- By section 15 of that Act –
"15 Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not have reasonably have been expected to know, that B had the disability."
- Section 20 and 21 of the 2010 Act, so far as material, provide –
"20 Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
…
21 Failure to comply with duty
(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person."
- Section 29, so far as relevant, provides –
"29 Provision of services etc.
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation."
- I next summarise the relevant facts as they appeared at the hearing before me.
The facts
- The Appellant began her course of study at Exeter University on 5th January 2015, her starting date having been deferred because she was on maternity leave at the time when she would otherwise have commenced the course. The course is one which is offered by the University on either a full-time or a part-time basis. In a letter dated 2nd November 2015, which as I understand it was a certificate issued pursuant to a requirement of the kind mentioned in paragraph 5 of Schedule 1 to the 1992 Act, the University confirmed that the Appellant –
"is currently registered as a Part Time student at the University of Exeter studying PhD Education 4 year (part time)."
- The Appellant's case is that for students who are not disabled, the course requires 20 hours study per week over at least 24 weeks each year; but she says that in her case the course requires a substantially greater number of hours of work, because of her dyslexia. She therefore contends that she is in fact required to undertake more than 21 hours per week of study, with the result that her course meets the definition in paragraph 4(1) of Schedule 1 to the 1992 Order of a full-time course of education and she qualifies for the student exemption from council tax. She points to the fact that her dyslexia inevitably means that it takes her longer than others to read and assimilate documents, and so in reality, she says, she is required to study at least 25 hours per week. She relies in particular on the fact that both the University and Student Finance England have made a number of allowances and adjustments in her favour because of her dyslexia:
i) First, she receives specialist one to one study skills support to assist her in managing and prioritising her work. In this regard, the Appellant points to a letter dated 27th June 2016 from Access Ability, The University of Exeter Forum which states –
"To whom it may concern
I can confirm that Cecile Jagoo … is currently studying at the University of Exeter and is registered with AccessAbility, the disability support service.
Cecile has a diagnosis of specific learning difficulties – dyslexia, and is entitled to 1 hour per week of study skills support, which is in addition to the standard hours of study for her programme. "
ii) Next, she relies on the fact that she receives assistance with proof reading, which appears to amount to 30 hours per year. As I understand it, this involves the provision by the University of a person who can proofread the Appellant's written work.
iii) The Appellant then relies on the fact that Student Finance England has assessed her as qualifying for funding of the cost of the study skills support (24 hours per year) and proof reading (30 hours per year), and also for other Disabled Students' Allowances including the cost of specified equipment.
- It appears that dyslexic students are often allowed 25% extra time for timed written examinations. The Appellant at one stage relied on that as a general indication that her studies take 25% longer than they would if she did not suffer from her disability. That was an inappropriate attempt to extrapolate from the specific to the general, and the point was not pursued before me. It is however relevant to note that in an undated e mail to the Appellant a DSA Needs Assessor and Specialist Study Tutor explained –
"Although I appreciate that dyslexic students are often recommended 25% extra time for timed written examinations, I cannot extrapolate that to infer that a 20 hour course will take another 5 hours to complete, as tasks vary. All I can state is that in addition to the 20 hours you are expected to study, you have been recommended both Study Skills and proofreading support which adds up to an extra hour of support per week each year."
- As I have indicated above, the Appellant's claim for a student exemption from council tax was initially refused by the Local Taxation officer. The Appellant appealed to the VTE, which dismissed the appeal by a written decision given on 24th June 2016. Having summarised the criteria for a full-time student contained in paragraph 4(1) of Schedule 1 to the 1992 Order, the written decision continued –
"It was established that the University of Exeter has confirmed to the Council that the PhD in Education undertaken by Miss Jagoo is a three to four years full-time course or a six to seven years part-time course. The University has confirmed that Miss Jagoo is registered as a part-time student as stated on her student certificate.
It was the Panel's determination that although Miss Jagoo states that she is dyslexic and so needs to study for longer than the course specifies but [sic] the course that she is undertaking does not qualify her as a full-time student for the purposes of council tax. Legislation does not provide discretion on this matter.
The Appellant failed to satisfy the Panel that the charge for the appeal dwelling was incorrect for the period in dispute, as above."
- Miss Jagoo sought a review of that decision, on the ground that she had received a further document from the University which the Panel had not seen. This, as I understand it, was the letter dated 27th June 2016 to which I have referred above. The Vice-President of the VTE carried out a review, taking into account the additional document, and upheld the Panel's decision. In a decision letter dated 21st July 2016 he summarised the issue which the Panel had had to consider, and continued –
"The Panel having considered all the evidence before them rightly correctly dismissed the appeal as a certificate provided by the University of Exeter confirmed that the Appellant was only undertaking a part-time course of study.
The document to which the Appellant now refers and which was not made available to her (or indeed the Panel) until after the hearing and the issue of the decision does not in any way change the fact that her course of study was part time in its nature. As such even had the document been available in advance of the hearing and had been placed before the Panel its decision would not have been altered in any way."
- Against that factual background, I come to the submissions of the parties.
The submissions
- For the Appellant, Mr Milsom argued as follows:
i) The Appellant has been recognised as disabled by reason of dyslexia. Both the University and Student Finance England have afforded her reasonable adjustments so that she meets the standards of persons who normally undertake the course.
ii) Because of her disability, the reading time in fact required of her is longer than in the case of a non-disabled student, and she is also in fact required to receive the additional support summarised above in order to meet the same standards as others enrolled on the same course. She in fact undertakes at least 21 hours per week of "study, tuition or work experience" and so should be treated as engaged in a full-time course of education within the meaning of the 1992 Order.
iii) If those additional hours of study, in fact required of the Appellant, were left out of account in interpreting the 1992 Order, with the result that a disabled person who is in fact a full-time student is treated as a part-time student and therefore has to pay council tax, that would put her at a substantial disadvantage compared to students who were not disabled (whose part-time studies would leave them free to take paid employment for at least part of the week). It would amount to discrimination by the Respondent in exercising a public function, and would be contrary to section 29 of the Equality Act 2010.
iv) On a proper interpretation of the 1992 Order, the additional hours of study must be taken into account in determining whether a student is engaged in a full-time course of study. Those additional hours include the extra hour per week which is taken up by the Appellant's study skills support and proof-reading assistance, and that extra hour in itself brings her within the requirement of 'at least 21 hours a week'. The VTE erred in law when it decided otherwise.
v) Further or alternatively, the VTE was obliged to construe the 1992 Order in the light of the Human Rights Act 1998, EU Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of Persons with Disabilities. Consistently with those instruments, and without going "against the grain" of the 1992 Act and Order, the relevant provisions can and should be interpreted as meaning that the definition of a student should take account of additional hours of work and study which are necessary because of a disability. Mr Milsom suggests that paragraph 4 of schedule 1 to the 1992 Order should be read as if it included, immediately after paragraph 1(b)(ii) words such as these:
"Insofar as a person would satisfy the provisions of (i) and/or (ii) above were periods of study, tuition or work experience which arise in consequence of a disability as defined in s6 Equality Act 2000 to be included, that person shall be regarded as satisfying the requirements of this regulation."
- In support of his first point, Mr Milsom relied on Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763, in which it was held that a police officer who suffered from dyslexia, and who for that reason required 25% extra time to complete a written assessment as part of his application for promotion, was a disabled person within the meaning of the Disability Discrimination Act 1995. The Employment Appeal Tribunal held that in deciding whether a disability is "substantial", the correct approach is to consider how the person concerned in fact carries out the relevant activity compared with how he would do it if not suffering the impairment. That principle was adopted in PP, SP v Trustees of Leicester Grammar School [2014] UKUT 520 (AAC), on which Mr Milsom also relies. Applying that principle to the circumstances of this case, Mr Milsom submits that the Appellant clearly meets the definition of disability on section 6 of the Equality Act 2010.
- In support of his third point, Mr Milsom relied on R (Hardy) v Sandwell MBC [2015] EWHC 890 (Admin), in which Phillips J held that discretionary housing payments which could be paid by a local authority were "possessions" for the purposes of Article 1 of the First Protocol to the Human Rights Convention, and Article 14 of the Convention was accordingly engaged when the local authority decided whether to award such a payment to a disabled applicant. The local authority was therefore under a duty, by virtue of section 29(6) of the Equality Act 2010, not to do anything which constituted discrimination in its performance of a public function.
- In support of his fifth point, Mr Milsom relied on a passage in the judgment of Underhill LJ in Blackwood v Birmingham and Solihull NHS Trust [2016] EWCA Civ 607. Having rejected a submission based on ordinary principles of construction of domestic legislation, Underhill LJ turned (at paragraph 48) to an alternative submission based on the principle that English courts are obliged to construe domestic legislation consistently with Community law obligations. He referred to recent case law on the ambit of that principle and continued –
"For working purposes, it is sufficient to adopt the summary in the judgment of Sir Andrew Morritt C in Vodafone 2 v Revenue and Customs Comrs [2010] Ch 77 para 37:
In summary, the obligation on the English courts to construe domestic legislation consistently with Community law obligations is both broad and far-reaching. In particular: (a) It is not constrained by conventional rules of construction (per Lord Oliver of Aylmerton in Pickstone at p725E). (b) It does not require ambiguity in the legislative language (per Lord Oliver in Pickstone at p725E; Lord Nicholls of Birkenhead in Ghaidan at para 32). (c) It is not an exercise in semantics or linguistics (see per Lord Nicholls Ghaidan at paras 31 and 35; per Lord Steyn at paras 48-49; per Lord Rodger of Earlsferry at paras 110-115). (d) It permits departure from the strict and literal application of the words which the legislature has elected to use (per Lord Oliver in Litster at p371D; per Lord Nicholls in Ghaidan at para 31). (e) It permits the implication of words necessary to comply with Community law obligations (per Lord Templeman in Pickstone at 720F; per Lord Oliver in Litster at p371D); and (f) The precise form of the words to be implied does not matter (per Lord Keith of Kinkel in Pickstone at p712C; per Lord Rodger in Ghaidan at para 122; per Arden LJ in R (IDT Card Services Ireland Ltd) v Customs and Excise Commissioners [2006] STC 1252 at para 114)".
Sir Andrew continued, at para 38:
"The only constraints on the broad and far-reaching nature of the interpretative obligation are that: (a) the meaning should 'go with the grain of the legislation' and be 'compatible with the underlying thrust of the legislation being construed' (per Lord Nicholls in Ghaidan at [2004] 2 AC 557 para 33; per Dyson LJ in Her Majesty's Commissioners of Revenue and Customs v EB Central Services Ltd [2008] STC 2209 para 8I. An interpretation should not be adopted which is inconsistent with a fundamental or cardinal feature of the legislation since this would cross the boundary between interpretation and amendment (see per Lord Nicholls in Ghaidan's case at para 33 and Lord Rodger at paras 110-113; Arden LJ in IDT Card Services at paras 82 and 113); and (b) the exercise of the interpretative obligation cannot require the courts to make decisions for which they are not equipped or give rise to important practical repercussions which the court is not equipped to evaluate. (See Ghaidan case, per Lord Nicholls at para 33; per Lord Rodger at para 115; per Arden LJ in IDT Card Services at para 113."
- On behalf of the Respondent, Mr Mackenzie did not dispute that the Appellant's dyslexia is a disability within the meaning of the Equality Act 2010, but argued –
i) This appeal raises a straightforward issue of statutory interpretation, the answer to which is clear and is in any event decided by earlier case law. The words of paragraph 4(b) of Schedule 1 to the 1992 Order are clear and unequivocal: they require a focus on the requirements of the course, not the requirements of the individual student.
ii) The circumstances here are that the Appellant, though entitled to receive additional support from the University, was not required by her course to undertake at least 21 hours per week of study. Like other students on the course, she was only required to undertake 20 hours. The decision of the VTE, that she is not undertaking a full-time course of education, is therefore unassailable. The Respondent in its role as billing authority correctly assessed the Appellant's property as liable to council tax, and she was unable to bring herself within the statutory definition of the student exemption. No error of law can be shown, either on the part of the Respondent or on the part of the VTE.
iii) There is no warrant in domestic law for adopting an unnatural interpretation of the plain words of paragraph 4(b) so as to reach the conclusion for which the Appellant contends.
iv) The natural interpretation of those words does not give rise to any discrimination within the meaning of the Equality Act 2010, and therefore there does not arise any obligation to interpret the legislation consistently with all or any of the international instruments on which the Appellant relies.
v) Even if the Appellant could succeed in her case as to the correct interpretation of paragraph 4 of schedule 1 to the 1992 Order, the factual evidence she has put forward would not suffice to entitle her to the student exemption: there is no evidence that the course requires periods of study for at least 24 weeks each year; there is only her assertion that the "official" hours (to use a term which the Appellant herself used in correspondence) are 20 hours per week; and there is no evidence to explain how the provision of the services of a proof reader comes within the category of "study, tuition or work experience".
- The features of the case law on which Mr Mackenzie particularly relies can be summarised as follows. In Wirral Borough Council v Farthing [2008] EWHC 1919 (Ch) HH Judge Hodge QC, sitting as a deputy High Court judge, held that each of the subparagraphs of paragraph 4 must be satisfied for the exemption to apply. It was therefore not possible to extend the scope of paragraph 4 to include a student who undertook an intensive course which lasted for less than one academic year and so could not fulfil the requirement in paragraph 4(1)(a).
- In R (Feller) v Cambridge City Council [2011] EWHC 1252 (Admin) Mr Timothy Corner QC, sitting as a deputy High Court judge, said at paragraphs 49-51:
"49. The requirements of paragraph 4 are to be applied to the course which the person is following. In summary, 4(1)(b) requires that the course be one which the persons undertaking it are normally required to attend (whether at the premises of the educational establishment or otherwise) for periods of at least 24 weeks in each academic or calendar year. Paragraph 4(1)(c) requires that the nature of the course be such that a person undertaking it would normally require to undertake periods of study etc which together amount in each academic or calendar year to an average of 21 hours per week during the periods of attendance mentioned in 4(1)(b)
50. These are requirements which are applied to the course itself, and not to any particular person, although I accept that the position of a particular person might be evidence of the requirements of a course on which he is enrolled.
51. The meaning of paragraphs 4(1)(b) and (c) is in my view clear. Those paragraphs define the course on which the person applying for the disregard is enrolled. If the course complies with those requirements, it does not matter whether that person was required to attend for 24 weeks per year, or undertake study or tuition averaging 21 hours per week."
- In R (Hakeem) v London Borough of Enfield [2013] EWHC 1026 (Admin) the VTE had refused an exemption to an MBA student who was enrolled on a course which allowed up to 4 years to complete the course and gave individual students an element of choice as to how many modules they studied at any one time. The VTE found that that the university in question recommended a certain number of hours of study per week, but did not impose a normal requirement. Mr Nicholas Paines QC, sitting as a deputy High Court judge, dismissed the student's appeal, saying (at paragraph 29) that the VTE –
"…were entitled to draw a distinction between a recommendation of for example 12 to 15 hours of weekly study, and a requirement as referred to in paragraph 4 of the Schedule. The two concepts are undeniably different and I can see nothing to criticise in the Tribunal's explanation of its understanding of the Regulations."
He went on to observe, at paragraph 34 –
"The Regulations are intended to distinguish between the full-time students who, by virtue of being full-time, do not have an opportunity to earn, and part-time students who do have such an opportunity."
Discussion
- I respectfully agree with the three decisions on which Mr Mackenzie relies. Whilst paragraph 4(1)(b) of Schedule 1 to the 1992 Order is clumsily phrased, its meaning is clear. There can in my judgment be no doubt that Parliament intended that, in determining whether the fiscal advantage of an exemption from council tax should be afforded to a student, attention should be directed to the normal requirements of the course which the student is undertaking. The focus must be on the study normally required of persons enrolled on the relevant course, and not on the study in fact undertaken by an individual student enrolled on that course. Mr Mackenzie accepted the possibility that there might in some circumstances be a need to focus on the study normally required of a particular sub-group of those enrolled on the course, though he emphasised that no such point arises in this case. He was in my view correct to acknowledge the possibility: the evidence in another case might show, for example, that the educational establishment concerned normally required X hours of study per week by those undertaking a particular course, but increased that requirement to X + 5 hours per week for the sub-group of students who had not previously passed a particular examination, or had not attained a particular diploma. But that possibility does not alter my conclusion that the words of the paragraph are clear and their meaning unequivocal. It follows that it cannot be said that additional words need to be read into the paragraph in order to resolve any ambiguity.
- There is an obvious and important reason why Parliament would wish to legislate in the terms of paragraph 4: it enables the billing authority, in assessing whether a student is entitled to an exemption or discount from a liability to council tax which would otherwise arise, to rely on information about the course certified by the educational establishment concerned. To shift the focus from the normal requirements of the course to the circumstances of an individual student would require a time-consuming and potentially contentious enquiry in relation to every claim for a student exemption. It would moreover risk favouring the student who was slow in his work (for example, because of a want of aptitude for the subject, or because he did not speak English as his first language) and penalising the able student who was able to complete the required work in less time than the education establishment expected.
- Mr Milsom sought to counter that last point by saying that in this context, those who are required to undertake additional hours of study because they suffer a disability are different "in a legally-relevant way" from those who need to undertake additional hours of study for a different reason. I do not find that submission persuasive. It seems to me that there is no relevant difference between the Appellant, who is entitled to support which increases the number of hours per week which she devotes to her course, and – for example - a foreign student who is granted an entitlement to attend weekly English language lessons in order to bring his command of the language up to a level commensurate with the requirements of the course.
- The next question raised by Mr Milsom's submissions is this: although the natural meaning of paragraph 4 is clear, must additional words nonetheless be read into it in order that it may be given a meaning consistent with the provisions of the Equality Act 2000? In this regard, Mr Milsom argued forcefully that it would be an unfair discrimination against the Appellant, by reason of her disability, if she were granted reasonable adjustments which in fact increased her hours of study to those of a full-time student but were then refused the exemption from council tax which is granted to a full-time student. Mr Milsom argued that the state recognises the value of education, and that the purpose of the student exemption is to encourage and assist those who are undertaking studies for at least 21 hours per week, thus limiting their opportunities to earn an income.
- I was initially attracted by these submissions. I can well understand why the Appellant feels she should be treated as a full-time student, and that it is unfair to require her to pay council tax. I fully recognise the financial difficulties she faces if her liability to pay council tax is confirmed by my decision. But upon reflection, I am unable to accept the submissions on her behalf, for the following reasons.
- First, the Respondent is the billing authority, not the taxation authority. Having rightly assessed the Appellant's property as being liable to council tax, the Respondent levied council tax in accordance with the relevant legislation. I accept Mr Mackenzie's submission that the Appellant has been refused a student exemption because of the legislation, not because of anything done by either the Respondent or the VTE.
- Secondly, the legislation applies or withholds the student exemption on the basis of the normal requirements of the course. On the (limited) evidence in this case, the normal requirements of the course were for 20 hours of study per week. The extra support to which the Appellant was entitled was not a requirement of her as an individual, still less one of the normal requirements of the course. Even assuming that in every other respect the Appellant might be able to bring herself within the terms of paragraph 4, she was accordingly prevented by paragraph 4(1)(b)(ii) from being a person undertaking "a full-time course of education". The Respondent (and the VTE) did not treat her differently from other students on the same course: she, like her fellow-students, was treated as a person undertaking a part-time course. Like her, other students were so treated even if they in fact devoted more than 21 hours per week to their studies. As it was put by a representative of the Respondent in an e mail to the Appellant –
"… the requirements of the Equalities Act [sic] are met because the individual characteristics of the student undertaking a course are not part of the legislative qualifying criteria that is applied."
- Thirdly, the Respondent (and the VTE) did not treat the Appellant unfavourably "because of something arising in consequence of [her] disability". She was treated as a part-time student because she is enrolled on a part-time course. The refusal to treat her as a full-time student was not because of her disability: it was because she is enrolled on a part-time course. Mr Milsom rightly drew my attention to the decision in Hall v Chief Constable of W Yorkshire [2015] IRLR 893 to the effect that, in deciding whether there has been discrimination within the meaning of section 15 of the Equality Act 2010, the relevant disability need not be the sole cause of the discrimination. But in this case, the Appellant's disability was not even an effective cause of discrimination. No direct discrimination has been shown, and there was no evidence to suggest indirect discrimination.
- Fourthly, even if I were wrong in my third reason, the University did not discriminate against the Appellant by reason of her disability: on the contrary, she was rightly offered additional support to assist her to be in a similar position to her fellow-students. That support was offered to her by the University in compliance with its Equality Act duties in relation to the academic course on which the Appellant was enrolled. It does not follow that additional words must be read into paragraph 4 in order to secure for the Appellant the discrete fiscal advantage of a student exemption which is afforded to full-time students in accordance with the provisions of other legislation.
- Fifthly, with respect to Mr Milsom, there is in my view a flaw in his argument. He points out correctly that additional support, which could be quantified at an hour per week, has been allowed to the Appellant as a reasonable adjustment and thus as a consequence of her disability. But it does not follow that to fail to take the additional hours into account, with the result that the Appellant has to pay council tax, means that she suffers "unfavourable treatment arising from her disability". The additional support is provided to assist her, and she is no doubt glad to take advantage of it because she naturally wishes to do as well as she can in her studies; but the submission confuses the reasons why additional support is necessary and desirable with the normal requirements of the course which is undertaking. I agree with Mr Mackenzie's submission that the fact that the Appellant takes advantage of the additional support offered to her is legally irrelevant, because that support is an entitlement, not a requirement of the course. Her entitlement to the support does not convert a part-time course into a full-time course.
- For those reasons, I am unable to accept Mr Milsom's submissions to the effect that the ordinary principles of domestic law required paragraph 4 to be interpreted in the Appellant's case in such a way as to entitle her to a student exemption.
- The final stage in Mr Milsom's argument is based on the duty imposed by section 3(1) of the Human Rights Act 1998:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
- I accept Mr Milsom's submission - relying on Burnip v Birmingham City Council [2013] PTSR 117 and R (Hardy) v Sandwell MBC [2015] PTSR 1292 - that the student exemption from council tax should be treated as a "possession" within the meaning of Article 1 Protocol 1 of the Convention on Human Rights. I also accept his submission – relying on Thlimmenos v Greece (2000) 31 EHRR 411 – that Article 14 of the Convention, which guarantees a person's enjoyment of her Convention rights without discrimination on any ground relating to "other status", protects against discrimination on grounds of disability. But for the reasons which I have given above, I do not accept that the natural meaning of the words of paragraph 4 gives rise to any discrimination on grounds of disability, and I therefore do not accept that a different interpretation of those words is necessary in order to give them effect in a way which is compatible with Convention rights.
- Moreover, in the passage which I have quoted at paragraph 28 above, Sir Andrew Morritt's summary of the interpretative obligation (for which Mr Milsom contends in this case) identified two constraints on that obligation. In my judgment, the Appellant's submissions overlook both those constraints. A fundamental or cardinal feature of the 1992 Order (and one for which there is ample justification) is that the student exemption is only to be afforded to those students who meet an objective definition of a full-time course of education; to read in additional words such as Mr Milsom suggests would go "against the grain" of that approach. To read in such additional words would also give rise to important practical repercussions which the court is not equipped to evaluate: it would require the VTE to make detailed enquiries into every claim for a student exemption, with the educational establishment's certificate forming only a small part of what would have to be considered on a case by case basis.
- Although Mr Milsom referred to a number of other international instruments, which he submitted led similarly to the conclusion for which he was arguing, I do not think it necessary to consider them separately. They all support the argument that there must be no discrimination on grounds of disability; but they cannot assist the Appellant on the issue of whether paragraph 4 of schedule 1 to the 1992 Order gives rise to any such discrimination.
- For those reasons I conclude that the Appellant has been unable to establish any error of law in the decisions refusing her claim for a student exemption. The Appellant was in my judgment correctly treated as a part-time student, and was unable to bring herself within the definition of a person undertaking a full time course of education.
- As I have indicated, I have thought it right to give my decision on the issue of interpretation, and for that purpose to assume - as the VTE appears to have done - that the Appellant's evidence did establish all the facts which she asserts. I am however bound to observe that that is a substantial assumption in her favour. I see considerable force in Mr Mackenzie's submission that the proof reading assistance provided to the Appellant cannot be regarded as "study, tuition or work experience". I also see considerable force in his submission that the Appellant's assertions as to the normal requirements of the course lacked any objective support: a surprising deficiency in her case, given that one would expect the relevant details to be readily available from the University of Exeter. Had I decided the issue of interpretation in the Appellant's favour, I would have called for further submissions as to whether I should remit the matter to the VTE for further consideration of the merits of the claim for a student exemption. In view of my conclusion on the issue of interpretation, however, it is unnecessary for me to say more about the evidential weaknesses in the Appellant's case.
- This appeal accordingly fails and is dismissed. I was told that the parties have reached an agreement as to costs, and that no order is sought by either party in that regard.
