Student loan age limit of 55 breaches human rights, judge rules
The regulations governing student loans in Scotland are incompatible with human rights law so far as they set an age limit of 55 for qualifying for a loan, a Court of Session judge has ruled.
Lady Scott held that Elizabeth Hunter, born in December 1958, had been unlawfully discriminated against when she was refused a loan to support her taking an HNC in hospitality management in 2014 on the ground of her age.
Ms Hunter had been the full time carer for her elderly father from 1992 until his death in January 2014. Prior to that she had been out of work due to ill health. She undertook cookery courses from 2011 and wanted to establish a catering business. She had people available to advise her. For her HNC she qualified for support with tuition fees, and a bursary in lieu of a loan, but this left her with an income shortfall. At the time of her application she had 12 years to go until state pension age. Student loans had advantages over commercial loans.
The petitioner mantained that the refusal of a loan was discriminatory in terms of article 14 of the European Convention on Human Rights, taken with article 1 of Protocol 1 (the right to protection of property) and/or article 2 of the Protocol (the right to education), and was not justified or proportionate. Further, the Scottish ministers were in breach of the public sector equality duty in terms of s 149 of the Equality Act 2010.
Lady Scott rejected the article 1 ground, holding that the right to protection of property and to have the use of possessions "does not extend to a right to acquire what one does not already have, regardless of the interest of the individual in doing so". The loan was not a welfare benefit provided as of right.
However there was a breach of article 2. There was "no real distinction to be drawn" between student loans to support payment of fees and student loans for living expenses, "as both carry the same purpose under the respective regulations, namely, to secure practical and effective access to the education provided", Lady Scott said. "Just as making it prohibitively expensive for some students to gain access to higher education would make the right to education illusory... so too would the absence of living support for those students who need it in order to take up the education offered, render the right illusory."
Case law showed a difference of views over how to assess whether the discrimination was justified. Lady Scott considered it was not appropriate to apply a high threshold test applied to cases concerning welfare or state benefits, "because the benefit here concerns access to the important right to education and is within the ambit of [article 2]". The court "requires to go further than traditional review and to have a more intense scrutiny involving a balancing exercise in assessing proportionality by having regard to the circumstances, which may involve a substantive review".
Applying the established four stage test of proportionality, she was "not persuaded that there is a sufficiently clear and rational connection between the [age cut off] and the primary aim of encouraging access to education. Indeed there is inherent conflict". She was not satisfied that there was no less intrusive measure which could be employed, and did not consider a “fair balance” had been achieved.
The regulations could not be read consistently with the Human Rights Act and had to be reduced. The court would also declare the ministers in breach of their duty under s 149. However an order would be suspended pending further consideration by the ministers.