Petition Of Elizabeth Hunter V (first) Student Awards Agency For Scotland, (second) The Scottish Ministers, (third) The Right Honourable Lord Wallace Of Tankerness, The Advocate General For Scotland And (fourth) The Right Honourable Frank Mulholand Qc, The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lady Scott |
| Neutral Citation | [2016] CSOH 71 |
| Published date | 20 May 2016 |
| Date | 20 May 2016 |
| Court | Court of Session |
| Docket Number | P414/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 71
P414/15
OPINION OF LADY SCOTT
In the petition
ELIZABETH HUNTER
Petitioner;
against
(FIRST) STUDENT AWARDS AGENCY FOR SCOTLAND; (SECOND) THE SCOTTISH MINISTERS; (THIRD) THE RIGHT HONOURABLE LORD WALLACE OF TANKERNESS, THE ADVOCATE GENERAL FOR SCOTLAND; and (FOURTH) THE RIGHT HONOURABLE FRANK MULHOLLAND, QC,THE LORD ADVOCATE
Respondents:
for
Judicial Review of the decision of the Student Awards Agency for Scotland of 29 April 2014 to refuse the petitioner’s application for a student loan under the Education (Student Loans) (Scotland) Regulations 2007
Petitioner: Irvine; Balfour + Manson LLP
Respondents: Springham; Scottish Government Legal Directorate
20 May 2016
[1] This is an action for judicial review of a decision of 29 April 2014 by the Students Awards Agency for Scotland (SAAS) (“the first respondents”) to refuse the application of the petitioner for a student loan under the Education (Student Loans) (Scotland) Regulations 2007 (“the 2007 Regulations”). That decision was made in accordance with the terms of Regulation 3(2)(ii) of the 2007 Regulations which restricts eligibility for a loan to persons under the age of 55 years. The action is raised on two grounds. Firstly, the petitioner claims that this decision and the relevant regulations unlawfully discriminate against her in violation of article 14 along with article 2 (protocol 1) of the European Convention on Human Rights (“the Convention”) and fall to be reduced. Secondly, that the Scottish Ministers (“the second respondents”) 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 the Equality Act 2010 (“the EA”).
[2] The issues raised under these grounds are rehearsed below at paragraph 4. The relevant legislation is listed in an addendum to this opinion and is reproduced in the first volume of authorities lodged by parties.
[3] The first ground raises a devolution issue and the Advocate General and the Lord Advocate are also respondents to the petition.
The issues
[4] The issues arising within the two grounds of review were as follows:
Ground 1: Whether the decision taken under Regulation 3(2) of the 2007 Regulations to refuse the petitioner a student loan was in violation of her right not to be discriminated against under Article 14 of the Convention. Within this argument the following discrete issues arise:
- Do the facts fall within the ambit of A1P1 which protects the right to property?
- In the alternative, do the facts fall within the ambit of A2P1 which protects the right to education?
- If so, in respect of either (1) or (2), does the engagement of Article 14 result in an infringement of the right against age discrimination?
- Is any such infringement of Article 14 justified or disproportionate?
- If disproportionate, is Regulation 3(2) of the 2007 Regulations capable of being read in a way which is not discriminatory and within the devolved competence?
- If not, what is the appropriate remedy?
Ground 2: The second respondents are in breach of their PSED in terms of section 149 of the EA.
If so, in the circumstances, is any order or remedy necessary?
The petitioner
[5] The petitioner was born on 7 December 1958. She left school at 16 with 2 ‘O’ levels. The petitioner is single and has no dependents. Prior to 2011, she had been out of work for a period of around 30 years. She had previously trained as a hairdresser but required to leave work after 5 years due to ill‑health. She was reliant on welfare benefits as her source of income. In 1992 she became the full-time carer for her elderly father until his death in January 2014. She has no pension. She is now 56 years old.
[6] In 2011, the petitioner enrolled on a cookery course. She had been thinking for some time about establishing her own catering business and wanted to secure a qualification to that end. She wanted to improve her situation and to do something with her life. She has a friend who runs a successful outside catering firm. She is familiar with the work which is involved with doing so and wishes to run a similar operation. She has received advice in this regard from a lecturer at the college who also runs a catering business. She is confident that, with her age and experience, she will be able to make her own catering business a success.
[7] The course on which the petitioner enrolled in 2011 was the NC Professional Cookery (Bronze) at Motherwell College (now New College Lanarkshire) (the “College”). She subsequently progressed to the NC Professional Cookery (Silver). On completion of the “silver” programme a student may progress to the NC Professional Cookery (Gold). In the course of the 2013‑2014 academic year she was invited by the College to undertake a City & Guilds Professional Cookery Diploma instead. She was encouraged to do so as the City & Guilds qualification is internationally recognised and offers greater employment opportunities. The petitioner graduated from the City & Guilds course in June 2014.
[8] The petitioner then enrolled on an HNC in Hospitality Management. The course start date was on or around 22 August 2014. The HNC course programme includes modules in “Financial Control”, “Accounting” and “Hospitality Supervision”. The petitioner considers the breadth of coverage offered by the HNC, in particular in relation to management and accounting, to be vital in order to make any catering business a success.
[9] Prior to enrolling on the HNC, the petitioner had been in receipt of a college bursary in respect of her studies. The bursary awarded to the petitioner consisted of a payment in the region of £430 per month (6/2 in process). That payment assisted with, but did not cover, the petitioner’s living expenses and travelling expenses from her home in Coatbridge to the College campus in Motherwell.
[10] In 2014, after enrolling on the HNC in Hospitality, the petitioner applied to the first respondents for a student loan to fund her living expenses in undertaking her studies during the 2014-2015 academic year.
[11] On 29 April 2014, the first respondents wrote to the petitioner to advise that she was not eligible to apply for this student loan on the basis of her age. The decision of the first respondents was made pursuant to the 2007 Regulations.
[12] She was subsequently issued with a letter confirming her eligibility for support with tuition fees, and the amount of the bursary awarded in lieu of the student loan. The bursary which was awarded to the petitioner works out at around £63 per month which amount does not cover her travelling expenses to the College campus in Motherwell and she is left with an income shortfall of around £300 per month.
The Student Loan
[13] The general scheme of support by way of student loans is contained within the affidavit of the second respondents’ policy officer (7/1 of process). The student loan in question is, as stated above, provided for under the 2007 Regulations which came into force on 1 August 2007. Regulation 3(2)(b)(ii) of the 2007 Regulations provides that a person shall be eligible for a loan in connection with their undertaking a designated course if that person is:
“(ii) aged 50 or over and under the age of 55 on that day and Scottish Ministers are satisfied that person intends to enter employment after completion of the course”.
Applications for a student loan or “student living loan” are made to the first respondents who decide whether the student is eligible for the student loan. That loan is a regulated lending agreement between an eligible student and the Student Loans Company (“the SLC”) who are responsible for administering payment and repayment of the loan. The SLC is a non‑profit making government‑owned organisation. It administers various loans and grants to students in universities and colleges in the UK. In Scotland, interest on student loans is charged at either the Bank of England base rate plus 1 per cent or in line with the Retail Price Index (“RPI”), whichever is lower. In England, the rate charged is RPI up to a maximum of RPI plus 3 per cent.
[14] A student loan offers distinct advantages over and above standard commercial lending. There is no fixed term repayment period. No repayment obligation arises until the April following the date of graduation. No repayment is required at all unless and until an individual’s annual income exceeds £17,335. An individual will thereafter be expected to repay 9 per cent of his or her annual income over and above that amount. Interest on a student loan is linked to inflation in line with the RPI. The value of the amount paid back will thus be equivalent in real terms to the amount borrowed.
[15] The increase to the state pension would mean that the petitioner at the time of her application would have approximately 12 years of working life.
Ground 1: Whether the decision taken under Regulation 3(2) of the 2007 Regulations to refuse the petitioner a student loan was in violation of her right not to be discriminated against under article 14 of the Convention
Article 14
[16] It is helpful to consider the scope of Article 14 under the Convention and the protection against discrimination at the outset. Article 14 provides that:
“[t]he 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”.
In this context it was agreed between the parties that “other status” includes a distinction drawn on grounds of age and that article 14 is not a “free‑standing” prohibition on discrimination, but rather applies only where the facts at issue fall “within the ambit” of one or more of the Convention’s substantive provisions. There was however...
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