Douglas v North Tyneside Metropolitan Borough Council; Secretary of State for Education and Skills (Interested party)

JurisdictionEngland & Wales
JudgeLord Justice Scott Baker
Judgment Date19 December 2003
Neutral Citation[2003] EWCA Civ 1847
Date19 December 2003
Docket NumberCase No: C3/2003/0896
CourtCourt of Appeal (Civil Division)

[2003] EWCA Civ 1847

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

(Mr Justice Hooper)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Thorpe

Lord Justice Jonathan Parker and

Lord Justice Scott Baker

Case No: C3/2003/0896

Between:
Douglas
Claimant
and
North Tyneside Metropolitan Borough Council
Defendant
and
The Secretary of State for Education and Skills
Interested Party (Defendant)

Mr Philip Plowden (instructed by Hay & Kilner) for the Claimant

The Defendant did not appear and was not represented

Mr Clive Lewis (instructed by The Treasury Solicitor) for the Interested Party

Lord Justice Scott Baker
1

There is before the court a claim for judicial review, Sedley L.J having so ordered under CPR Part 52.15(3) on an application for permission to appeal. Judicial review is sought by Eric James Douglas of the decision of North Tyneside Metropolitan Borough Council ("the local authority") on 1 November 2002 to refuse to grant him a student loan. The ground for the decision was that he was too old and therefore ineligible under regulation 30 of the Education (Student Support) Regulations 2002 (S.I.2002 No.95), ("the Student Support Regulations").

2

The claimant's case is that the refusal of a student loan amounts to a breach of Article 14 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention") taken together with Article 2 of the First Protocol to the Convention.

3

Because the case raises issues of principle and there is common ground between the local authority and the Secretary of State for Education and Skills, who is an interested party, the local authority has not participated in the hearing before this court, leaving the argument to Mr Clive Lewis on behalf of the Secretary of State. By consent the Secretary of State has been joined as a defendant in the proceedings. The regulations with which the court is concerned are the Secretary of State's regulations. The local authority was simply implementing them in accordance with his policy.

4

Article 2 of the First Protocol to the Convention provides:

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

Article 14 of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

5

Chapter 1 of Part II of the Teaching and Higher Education Act 1998 is headed "Student support." S.22 provides that:

"(1) Regulations shall make provision authorising or requiring the Secretary of State to make grants or loans, for any prescribed purposes, to eligible students in connection with their attending-

(a) higher education courses, or

(b) further education courses,

which are designated for the purposes of this section by or under the regulations."

S.22(2) outlines the provisions that may be addressed by the regulations. These include the making of provision for determining whether a person is an eligible student in relation to any grant or loan available under the section.

6

By s.23 the Secretary of State is entitled to delegate his functions to a local education authority and that is what happened in this case.

7

The relevant regulations are the Student Support Regulations. Reg 28 provides that a student is eligible for support in connection with his undertaking a part-time course if he is a person mentioned in Schedule 1. Schedule 1 lays down certain nationality and/or residence conditions. Reg 29 lays down certain requirements as to courses that are to be treated as designated courses, including the requirement that such a course is listed in Schedule 2. Schedule 2 includes a course for the Higher National Diploma or Higher National Certificate of the Business and Technician Education Council (BTEC).

8

The key provision in the present case is reg 30 which, so far as material, provides as follows:

"(1) Subject to and in accordance with the following paragraphs, an eligible part-time student shall be eligible for a loan if:

(a) he is under the age of 50 on the first day of the first academic year of the course; or

(b) he is aged 50 or over and under the age of 55 on that day, if the Secretary of State is satisfied that he intends to enter employment after he has completed his part-time course or such other higher education course which he intends to start undertaking immediately after completing his present course, disregarding any intervening vacation; and

(c) in respect of the second and any subsequent year of his part-time course, he is ordinarily resident in England and Wales on the first day of the academic year."

9

Reg 31 provides that the amount of a loan for a part-time course in respect of each academic year is £500.00.

10

The provisions for repayment of student loans are to be found in the Education (Student Loans) (Repayment) Regulations 2000 (SI 2000 No.944). Broadly, the loan is repayable once a threshold income has been reached. Reg 12, which deals with cancellation, provides:

"(1) Subject to paragraph (4) where a borrower is not ….. in breach of any obligation to repay any other loan mentioned in paragraph (2) and the Secretary of State is satisfied that he –

(a) has died;

(b) has attained the age of 65; or

(c) receives a disability related benefit and because of his disability he is permanently unfit for work.

the Secretary of State shall cancel his liability to repay his student loan."

The remainder of the regulation is not material.

The material facts

11

The Claimant was born on 13 April 1944, so he will be 60 next April. Until 1996 he was a marketing manager with a computer company. Then he became unemployed. Following an accident in 1999 he was awarded incapacity benefit and income support. In September 2001 he began a part-time two-year course to obtain a BTEC Higher National Certificate in counselling skills. He completed this in June 2003 and is now on a one-year course to obtain a Higher National Diploma in counselling skills. On 5 October 2002 he applied to the local authority for a student loan of £500.00. He had not applied the previous year. On 1 November 2002 the local authority wrote refusing his application because he was over the age of 55 on the first day of the first academic year of the course. That apart he would have qualified for a loan.

12

The claimant has been working as a voluntary trainee counsellor at a clinic that works with victims of sexual abuse. His aim is to find paid employment as a qualified counsellor. He points out that, unlike many occupations, counselling is an area where age and experience of life can be an asset in seeking employment. Obtaining his qualification involves a considerable commitment on his part both in terms of money and time. This, he claims, is a strong indicator that he will in fact take up paid work when he is qualified.

13

In 1998 student support arrangements for full-time students were changed when the government implemented a new system of funding. Previously support for living costs was made in the form of a fully means tested grant and a non-means tested 'mortgage style' loan. By 1997 the balance was approximately 50% support from the grant and 50% support from the loan. Income contingent student loans became the main support of students' funding for living costs. The government considered that it was right that graduates should contribute more towards the costs of their higher education through the repayment of loans as they stood to benefit both economically and socially from access to higher education.

14

In 1998 and 1999 the change was made from the 50/50 provision to a 100% loan. Given the need for the loan to be repayable (unlike a grant), and given that repayment was to be linked to earning levels, the government regarded it as essential that the graduate was intending to re-enter the labour market for a length of time sufficient to repay the loan. The change in student support was made as the numbers participating in higher education continued to increase in line with government policy to extend access to higher education so that the economy can benefit from more highly skilled people with higher education qualifications.

15

The essential elements of income contingent loans are as follows: 75% of the maximum rate of loan available to the individual student is not subject to a means test. 25% is means tested on parental/spousal income or that of the student if financially independent.

16

Before 2000 there was no statutory provision for financial support for undergraduate part-time students. In the academic year 2000/2001 a new £500.00 loan available under the Student Support Regulations was introduced for part-time students who met the personal eligibility criteria and whose income was less than the threshold (set at £13.000 for the 2003/2004 academic year). Loans are not intended for better off part-time students, or for those who already hold a first degree. A student must also complete a course in not more than twice the length of time it would take to complete a full-time course leading to the same qualification. Thus the loan is not intended to assist those who are undertaking shorter courses, or who are studying less intensively or where the...

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