Hunter, Re Judicial Review,  CSOH 71 – read judgment.
The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.
The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.
The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.
Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance.
Article 1, Protocol 1 (paras. 18-21)
Article 1, Protocol 1 (“A1P1”) protects the rights to peaceful enjoyment of property and possessions. In previous cases, the European Court of Human Rights has recognised that some payments from public funds, such as welfare benefits, can fall within the scope of A1P1 (Stec and Others v. United Kingdom, nos. 65731/01 and 65900/01, 12 April 2006).
However, Lady Scott held that a student loan did not constitute a “possession” in this instance. In contrast to the situation surrounding welfare benefits, even if the age restriction did not exist, the petitioner would not have an established legally enforceable right to the student loan. This lack of a legally enforceable right to the payment resulted in it falling beyond the scope of A1P1.
Article 2, Protocol 1 (paras. 22-33)
Article 2, Protocol 1 (“A2P1”) states that “[n]o person shall be denied the right to education”. Whilst this does not impose upon states a duty to provide tertiary education, it does include a right to practical and effective access to any education that has been put in place (Leyla Şahin v. Turkey, no. 44774/98, 10 November 2005, at paras. 136-137).
Domestic courts had previously considered that the requirement to pay tuition fees falls within the ambit of A2P1. In R (Kebede) v. Secretary of State for Business, Innovation Skills,  EWHC 2396 (Admin), Burnett J. stated that such loans were “for a very large number of people, the only practical way of paying” tuition fees and accordingly constituted an “important feature in providing practical and effective access to university education”.
Lady Scott drew comparisons with the situation in R (Kebede) and the present case. Despite the petitioner being provided with tuition fee support and a modest bursary from her college, without assistance for living expenses the petitioner would be unable to take up the education offered. Lady Hale in R (Tigere) v. Secretary of State for Business, Innovation and Skills,  1 WLR 3820 at 24 stated that making tertiary education prohibitively expensive would result in the right to access education under A2P1 becoming illusory. In the present case, without provision of a student loan to assist with living expenses, the petitioner’s right to access to education would also become illusory. Accordingly, Lady Scott held that the provision of a student loan, in these circumstances, fell within the scope of A2P1.
As a result of this, the scheme that regulates the provision of student loans must be operated in a manner that complies with Article 14.
Article 14 (paras. 36-63)
It was not contested that the relevant regulations discriminated on the basis of age. However, Article 14 is not absolute in character and certain forms of discrimination can be justified provided the measure pursues a legitimate aim and is proportionate.
The 2007 Regulations governing the provision of student loans were made for the purpose of “encouraging greater access to higher education, primarily for those wishing to improve their skills and qualifications”. Lady Scott accepted that this aim pursued by the regulations was legitimate. As a result, the main issue to be dealt with was whether the application of the regulations to the petitioner was proportionate.
However, the relevant test, and the intensity of review, was contested by the parties. The petitioner submitted that a simple proportionality test should be applied that weighed the relevant public and private interests. The Scottish Ministers argued that due to the regulations encompassing general measures of political, economic, and social strategies, then they would only be considered disproportionately discriminatory if they were “manifestly without reasonable foundation” (see Stec at para. 52).
This issue had previously been considered by the Supreme Court in R (Tigere). Lady Hale and Lord Kerr favoured the application of the established rule of proportionality. In contrast, Lords Reed and Sumption held that the provision of funds to assist with living costs constituted a form of state benefit. Accordingly, in line with established Strasbourg jurisprudence, the scheme adopted by the legislature should be respected unless “‘manifestly’ without reasonable foundation” (see Stec at para. 52).
Lady Scott agreed with the petitioner proposal. First, the provision of student loans did not constitute a welfare or state benefit. Secondly, it was important to note that the student loan was necessary to realise the important right to education contained within A2P1. Accordingly, the “very high threshold test” of manifestly without reasonable foundation was not applicable. Lady Scott proceeded to apply the four stage proportionality test as set out by Lord Reed in Bank Mellat v. Her Majesty’s Treasury (No 2),  AC 700 (see David Hart QC’s previous post here)
One of the stages of this proportionality assessment is whether the measure is “rationally connected to the objective”. The decision to refuse the petitioner a student loan was solely due to the cut off age of 55 imposed by the regulations. Lady Scott found nothing to suggest that this measure was connected to the legitimate aim of the regulations of “encouraging greater access to higher education, primarily for those wishing to improve their skills and qualifications”. No further reasons were put forward by the Scottish Ministers that appeared appropriate for imposing such a restriction.
Additionally, a less intrusive measure could have been adopted, such as imposing a requirement for older individuals to show that they intended to enter employment or that the prospect of repayment could be investigated before a decision was made (such measures already existed, but were obviously not applicable to those over 55 – see para. 60). Accordingly, Regulation 3(2)(b)(ii) was considered by Lady Scott to be disproportionate discrimination and therefore in violation of her right under A2P1 combined with Article 14.
There was no interpretation under section 3, HRA 1998 that could be adopted to read the regulation in accordance with the relevant Convention rights. The provision clearly limited student loans to those under 55 years old, in violation of the petitioner’s rights under Article 14 combined with A2P1. As a result, the decision denying the petitioner a student loan was to be reduced (paras. 64-67).
Public Sector Equality Duty under the Equality Act 2010 (paras. 70-78)
Section 149, Equality Act 2010 imposes upon public authorities a duty to have due regard to the need to eliminate discrimination when exercising their functions. This duty includes the need to consider ways in which powers can be exercised in a manner that eliminates discrimination if there are “grounds to believe” that are not currently achieving this.
The petitioner submitted that the Scottish Ministers had “grounds to believe” that regulation 3(2)(b)(ii) could have discriminatory effects. Lady Scott agreed. The regulations had been amended to remove the application of the age limit for individuals undertaking a vocational course that lead to “a Postgraduate Diploma or to a Postgraduate masters degrees” (Regulation 4, The Education (Fees, Awards and Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2012). If the Scottish Ministers had reasonably scrutinised regulation 3(2)(b)(ii) when adopting this amendment they would have realised its evidently discriminatory effects.
Accordingly, the PSED under section 149, Equality Act 2010 was triggered and the Scottish Ministers had failed to comply with it.
Following the issuance of a compliance notice by the Equality and Human Rights Commission in December 2014, a review of the impacts of the 2007 Regulations is currently underway. This decision, albeit from the first instance court, could go some way in ensuring that this review includes an amendment to the current strict age limitations for student loans.