Mature student denied loan suffered age discrimination, as judge rules regulations restricting support to under 55s is ‘ultra vires’
Scottish secondary legislation restricting student loans to under 55s breaches the right against age discrimination and is therefore “ultra vires”, a judge in the Court of Session has ruled.
Lady Scott upheld a claim by a 56-year-old woman that the relevant regulations amounted to “unlawful discrimination” in violation of her human rights.
The court heard that the petitioner Elizabeth Hunter left school at 16 with two ‘O’ levels and trained as a hairdresser before having to leave work after five years due to ill-health.
She had been out of work for around 30 years and was reliant on welfare benefits as her source of income until 2011, when she enrolled on a cookery course with a view to establishing her own catering business.
She subsequently progressed and gained various related qualifications, before going on to graduate having completed a City & Guilds Professional Cookery Diploma in 2014.
Ms Hunter then enrolled on an HNC in Hospitality Management and applied to the first respondents, the Students Awards Agency for Scotland (SAAS), for a student loan to fund her living expenses in undertaking her studies during the 2014-2015 academic year.
But on 29 April 2014 SAAS wrote to the petitioner to advise that she was not eligible to apply for this student loan under the Education (Student Loans) (Scotland) Regulations 2007 on the basis of her age.
The decision was made in accordance with the terms of regulation 3(2)(ii), which restricts eligibility for a loan to persons under the age of 55 years.
The petitioner sought judicial review of the decision, arguing that the decision and the relevant regulations unlawfully discriminated against her in violation of article 14 along with article 2 (protocol 1) of the European Convention on Human Rights.
She also claimed that the second respondents, the Scottish Ministers, failed to assess the discriminatory effects of the 2007 regulations as regards age and thereby acted in breach of the public sector equality duty (PSED) imposed by section 149 of theEquality Act 2010 (EA).
The court was told that the “primary purpose” of student loans was “to encourage greater access to higher education, primarily for those wishing to improve their skills and qualifications, and hence to improve the skills and qualifications of the workforce”, which was a “legitimate aim”.
In addition, the respondents submitted that a “subsidiary aim” to the regulations was to seek “to “encourage younger people to enter the workforce.
“This it seems to me is a legitimate objective and a cut off of 55 years of age in this context makes sense or is rationally connected to that aim. But the difficulty for respondents is that this is not the agreed primary purpose which is much broader and without qualification and is a purpose which corresponds to the circumstances of the petitioner,” Lady Scott said.
She continued: “The scheme of the Regulations does seek recovery of the loan by repayment by recipients who have obtained employment. Under the relevant regulations a person who does not obtain employment, or who does not obtain employment with a sufficiently high salary, is not required to repay the loan. The loan is cancelled from the 35th anniversary from the date when the borrower became liable to repay the loan.”
The respondents’ also submitted that it was “much less likely” that a loan provided to a student aged 55 or over (compared to a younger student) would be repaid or repaid in full and this was a reasonable basis for providing the cut off at 55, but the judge did not find this persuasive.
She observed that the provisions for repayment in the regulations were combined along with provisions giving powers to investigate the prospect of repayment (regulation 5(5) and (6)) and a “safety valve” provision within regulation 3(2)(ii) itself which applied to those over 50 but under 55 seeking student support, whereby they require to satisfy the respondents that they intend to enter employment.
“All are designed to protect against loss and secure a reasonable recoupment of the resources paid out. Accordingly the Regulations already provide protection for finite resources and the need for the cut off at 55 is in my view weakened”, the said.
In a written opinion, Lady Scott said: “Considering all of the above and after weighing the various factors I am not persuaded that there is a sufficiently clear and rational connection between the cut off in regulation 3(2)(b)9ii) and the primary aim of encouraging access to education. Indeed there is inherent conflict.
“Reviewing the relevant regulations in the round, including provision of the safety valve for those over 50 and under 55, I am not satisfied there is no less intrusive measure which could be employed, and I do not consider a ‘fair balance’ has been achieved. Accordingly I am not satisfied that Regulation 3(2) is proportionate. As such the decision made in applying that regulation to the petitioner is in violation of her article 14 right against age discrimination.”
She added: “For the reasons given above, I find the following: Regulation 3(2)(b)(ii) of the 2007 Regulations is incompatible with the petitioner’s rights under article 14 read with article 2 (protocol no 01) of the Convention and such is out with the competence of the second respondents and falls to be reduced.
“The decision of the first respondent of 29 April 2014 to refuse the petitioner’s application for a student loan being made in pursuance of regulation 3(2)(b)(ii) of the 2007 Regulations, which regulation I have found to be ultra vires falls to be reduced. The second respondents failed in their duty imposed by section 149 of the EA 2010 and declarator of said failure falls to be pronounced.”