Restriction of student loans in Scotland to under-55s deemed to be unlawfully discriminatory

Photo credit: The Guardian

Hunter, Re Judicial Review, [2016] 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.

Background

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. Continue reading

Volunteers not entitled to protection of disability discrimination laws

Citizens-Advice-Bureau-007X(Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondent) [2012] UKSC 59 – read judgment

The Supreme Court has confirmed the Court of Appeal’s view that voluntary occupation does not attract the protections of the Equality Act or the Framework Directive.

Background

The appellant had worked as a volunteer adviser for the Citizens’ Advice Bureau since 2006. In 2007 she claimed that she was asked to cease work in circumstances amounting to discrimination on grounds of disability. She sought to bring proceedings against the respondent but the Court of Appeal held that the Employment Tribunal had no jurisdiction to hear the case as she was a volunteer rather than an employee, and therefore fell outside the scope of protections against discrimination under the  Disability Discrimination Act 1995 (now covered by the Equality Act 2010) and Directive 2000/78/EEC  (“the Framework Directive”). See Isabel McArdle’s post on that decision here. Continue reading

US Supreme Court to rule on affirmative action

The US Supreme Court’s term begins today, and race relations is at the top of the court’s agenda. The US press hails Fisher v University of Texas as the most important case the Court has agreed to hear thus far. Word is out that it could sound the death knell for affirmative action in the United States.

The justices are being asked to decide whether race-based affirmative action in college admissions is still constitutional.  The petitioner is a white student who was turned down by the University of Texas in 2008. She claims she was a victim of illegal race discrimination under their policy of affirmative action.

In 1997 the Texas legislature enacted a law requiring the University of Texas to admit all Texas high school seniors ranking in the top ten percent of their classes.   Whilst this measure improved access to tertiary education for many, the colleges protested at having their hands tied with regard to highly talented students who showed promise in certain subjects but did not come in to the top ten percent (including minority students in highly integrated high schools).  To redress this balance the Supreme Court ruled in 2003 that universities could consider a minority student’s race as a “plus factor” in admissions. The Court based its ruling on the need for colleges to ensure a diverse student body. Following this judgment, the University of Texas added a new affirmative action policy to go along with the automatic admission rule  with race being a “plus factor” in admission. Continue reading

Are Christians really marginalised in this country?

We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.

Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.

The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School [2006] UKHL 15

The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]

(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.) Continue reading

Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…

“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.

There have been a number of developments since we last blogged on this issue:

First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party)  & Ehrc (Intervener) [2011] Ewca Civ 1586, The appellants failed to overturn the dismissal of their application for judicial review of a local authority’s decision to close half its public libraries.  See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body.  Given the scale of the spending reductions required the decision was not unlawful.

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Poor not singled out by rise in university fees, rules court

Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment

This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s  FA Mann Lecture  on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).

The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties. Continue reading

Is it legal to teach gay hate in schools?

Updated, 20 Feb 2012 | Following the news recently it would seem that the UK is convulsed by a raging battle between religious observers and, in the words of Baroness Warsi, militant secularists. On the same day, the High Court ruled that Christian prayers held before a council meeting were unlawful, and the Court of Appeal upheld the decision of the High Court that two Christian hotel owners had discriminated against gay clients by not offering them a double room.

Today’s spat, according to The Guardian, involves a letter sent to the Education Secretary Michael Gove by the Trade Union Congress leader “expressing alarm that a booklet containing “homophobic material” had been distributed by a US preacher after talks to pupils at Roman Catholic schools across the Lancashire region in 2010.” From the quotes provided in The Observer, the book sounds pretty offensive:

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