Jonathan Bishop v The Student Loans Company Ltd trading as Student Finance Wales (sued as The Student Loans Company)

Hearing date: 3 December 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 16 December 2024 by circulation to the parties by email and by release to the National Archives.

Jonathan Bishop is a disabled student who is in receipt of a Disabled Postgraduate Student's Grant. By these applications, Mx Bishop seeks interim injunctive relief to enforce the obligations of the Student Loans Company Limited trading as Student Finance Wales (“the SLC”) in respect of the provision of the grant. Mx Bishop's core complaint is that the SLC has failed to provide them with the support recommended by needs assessments and, in particular, with continuity of support from workers employed by a community interest company called Carers, Educationalists, Anarchists, Religionists, Shippers & Writers C.I.C. (“CEARSW”). Both the underlying claim and Mx Bishop's two applications for interim relief are resisted by the SLC which asserts that the claim constitutes an abuse of process and, in any event, has no merit.

THE STATUTORY SCHEME

Section 22 of the Teaching and Higher Education Act 1998 requires regulations to be made authorising or requiring the Secretary of State to make grants or loans to eligible students in connection with their higher education courses. In Wales, such powers and duties are now conferred on the Welsh Ministers pursuant to s.44 of the Higher Education Act 2004 and Schedule 11 to the Government of Wales Act 2006. The Education (Student Support) (Wales) Regulations 2018 (“the 2018 Regulations”) were made by the Welsh Ministers pursuant to the powers conferred on them by ss.22 and 42 of the 1998 Act.

Schedule 4 to the 2018 Regulations makes provision about Disabled Postgraduate Student's Grant. The essential scheme is as follows:

3.1 Paragraph 1(1) defines the grant as a “grant made available by the Welsh Ministers to an eligible postgraduate student with a disability to assist with additional expenditure in respect of living costs which the student is obliged to incur in connection with a designated postgraduate course by reason of the student's disability”.

3.2 To qualify, the course must be a designated postgraduate course as defined by paragraphs 2–3 and the disabled student must be eligible within the meaning of paragraphs 4–16. Further, paragraph 17 requires that the student must make an application for the grant in relation to the particular academic year.

3.3 By paragraph 18, the Welsh Ministers may take such steps and make such inquiries as they think necessary to make a decision on an application. Such steps may include requiring the applicant to provide further information or documents.

3.4 Paragraph 18(5) provides that the Welsh Ministers must notify the applicant of a decision on an application. Paragraph 18(6) provides:

“The notification must state–

(a) whether the Welsh Ministers consider the applicant to be an eligible postgraduate student,

(b) if so, whether the eligible postgraduate student qualifies for a disabled postgraduate student's grant in relation to the academic year,

(c) if the student does qualify, the amount payable in relation to the academic year,

(d) a breakdown specifying the amounts of grant payable in respect of each type of expenditure mentioned in paragraph 20(2), and

(e) in the case of a provisional decision, the fact that the decision is provisional and the consequences of that fact.”

3.5 Paragraph 20(1) provides:

“The amount of disabled postgraduate student's grant payable to an eligible postgraduate student in respect of an academic year is the amount–

(a) which the Welsh Ministers think appropriate, but

(b) which does not exceed the aggregate amount of the limits applicable in respect of the Cases listed in sub-paragraph (2).”

3.6 Paragraph 20(2) provides for two cases:

a) Case 1: “Expenditure required on a non-medical helper, major items of specialist equipment and any other expenditure the eligible student incurs in connection with the course by reason of the student's disability (apart from the expenditure specified in Case 2).” Case 1 expenditure is currently capped at £33,460 in respect of an academic year. b) Case 2: Additional expenditure actually incurred for the purpose of attending an institution.

By s.23(4) of the 1998 Act, the Welsh Ministers may make arrangements for another body to exercise on their behalf any function exercisable by virtue of regulations made under s.22. Pursuant to such power, the Welsh Ministers have delegated their functions under the 2018 Regulations to the SLC. The copy of such instrument for the current academic year requires the SLC to comply with any directions that the Welsh Ministers may make as to the exercise of the delegated functions.

Among other matters, the SLC was required by the Welsh Ministers to apply the Welsh Government's policy on conflicts of interest. Such policy provided:

“Due to the potential conflict of interest, DSA funding will not normally be available to any company, partnership or other organisation that is owned or controlled by the student being supported, or in which the student has a financial interest.”

[While this document and others, including the parties' correspondence, evidence and submissions, referred to DSA — or Disabled Students' Allowance — it is clear that this term is being used generically and that this case actually concerns the variant payable to postgraduates.]

Accordingly:

6.1 Where an application is made for a Disabled Postgraduate Student's Grant by an eligible student in respect of the additional living costs incurred in connection with a designated postgraduate course by reason of the student's disability, the SLC is under a duty to make a decision.

6.2 Where the SLC decides that the student qualifies for the grant, it is under a duty to determine the amount that should be paid.

6.3 In fixing the amount that should be paid, the SLC has a discretion to fix the amount that it thinks appropriate subject to the caps specified in paragraph 20(2).

6.4 In assessing applications, the SLC was required, among other matters, to apply the Welsh Government's policy on conflicts of interest.

THE PART 7 CLAIM

This claim was issued using the Part 7 procedure. By the Particulars of Claim, Mx Bishop seeks the following relief:

“7.1 An injunction requiring the Defendant to comply with Section 13 of the Education (Student Support) Regulations 2002, specifically by providing the support workers recommended in the Claimant's needs assessment.

7.2 An order prohibiting the Defendant from preventing the Claimant from receiving support from individuals known to them, including those affiliated with [CEARSW], on the basis of an unsubstantiated conflict of interest.

7.3 A declaration that the Defendant's actions violate the Claimant's rights under Article 2 of Protocol 1 and Article 14 of the Human Rights Act 1998 and constitute disability discrimination under the Equality Act 2010.

7.4 Damages for the emotional distress and harm caused by the Defendant's failure to provide reasonable adjustments, including the prevention of educational access and the Claimant's resulting meltdowns.”

There are some obvious issues with this formulation but the claim remains intelligible:

8.1 The reference to the 2002 Regulations is mistaken and it is common ground that the relevant provisions in this case are the 2018 Regulations.

8.2 Further, the references to the First Protocol and to Article 14 are obviously to the European Convention for the Protection of Human Rights and Fundamental Freedoms which was incorporated into domestic law by the Human Rights Act 1998.

Christian Howells, who appears for the SLC, argues that the claim seeks mandatory orders and was therefore required by r.54.2 of the Civil Procedure Rules 1998 to be brought by way of judicial review. Mx Bishop insists that the claim was properly brought by a Part 7 claim and that the claim under the Equality Act 2010 could not be brought by judicial review.

These proceedings engage the rule in O'Reilly v. Mackman [1983] 2 A.C. 237, namely that as a general rule it is contrary to public policy and an abuse of process for a claimant to seek to establish that a decision is contrary to public law by way of an ordinary claim rather than by judicial review proceedings. Two obvious potential abuses in bringing an ordinary claim where the judicial review procedure should be used are that the claimant can thereby circumvent the need for permission to apply for judicial review (r.54.4), and the strict time limits requiring the claim to be made promptly and in any event within three months (r.54.5).

There are exceptions to the rule in O'Reilly v. Mackman where the claim concerns both public law and private claims: see, for example, An Bord Bainne Co-Operative Ltd v. Milk Marketing Board [1984] 2 C.M.L.R. 584 and Secretary of State for Transport v. Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259, [2020] 1 P.&C.R. 17. It is not, however, necessary in this judgment to consider the precise ambit of the rule since the Civil Procedure Rules 1998 provide bright-line rules in respect of claims for mandatory orders against public bodies exercising a public-law duty.

Rule 54.2 provides that the judicial review procedure “must” be used in a claim for judicial review where the claimant is seeking a mandatory...