[2023] UKUT 193 (AAC)

Were it not for the decision in CH/4429/2006, I would have said that the construction of regulation 64(3) was straightforward and that its meaning was plain.

I begin by reminding myself that under regulation 64(3), the claimant “is to be treated as possessing a student loan in respect of [the 2017/2018 academic year] where … he could acquire a student loan … in respect of that year by taking reasonable steps to do so”.

At paragraph 4 of CH/4429/2006, the Commissioner stated that the practical effect of that provision is that a person who is entitled to a student loan will suffer a diminution in the amount of housing benefit to which he or she would otherwise be entitled, and that the use of the words “entitled to a student loan” was deliberate. But unless the Commissioner was saying that his own use of the words “entitled to a student loan” earlier in the same paragraph was deliberate—which would be a strange thing to say given that he had emphasised them on both occasions—I judge that to be an impermissible gloss on the statutory wording. Not only does the phrase “entitled to a student loan” not appear in regulation 64; an electronic search suggests that it does not appear anywhere in the Regulations. For the purposes of regulation 64(3), students are “treated as possessing student loans”, rather than being “entitled” to them.

I therefore return to what that regulation actually says: the claimant is to be treated as possessing a student loan that he could have taken reasonable steps to acquire.

Leaving aside the issue of reasonableness for the moment, and assuming for the moment that the word “steps” has the significance that Mr Powell ascribed to it, it is thus necessary to consider what “steps” the claimant would have had to take to acquire a student loan.

In my judgment, such steps would have included:

obtaining an application form and supporting documents;

scrutinising the terms on which the loan was offered;