The Outer House of the Court of Session has found that the restriction of student loans to individuals under 55 years of age in Scotland is a form of discrimination under Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). The Court also found the Scottish Ministers had 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.
In 2014 the applicant successfully enrolled in a hospitability management course and applied to Student Awards Agency for Scotland (SAAS) for a student loan to fund her living expenses. The SAAS determine eligibility for student loans under the Education (Student Loans) (Scotland) Regulations 2007 (the ‘Regulations’).The applicant was refused on the basis that the Regulations restrict eligibility for a student loan to persons under the age of 55. The applicant argued she had been unlawfully discriminated on grounds of age and that the Scottish Ministers had failed in their public sector equality duty. Ministers must have due regard to their duty to eliminate discrimination when exercising their functions. The 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’ they are not currently achieving this.
The Court noted the applicant’s age was the sole basis for SAAS’s refusal of loan, a fact supported by a letter written to the applicant from the SAAS. The Court accepted that the rights contained in Article 14 are not absolute and certain forms of discrimination could be justified provided the measure pursues a legitimate aim and is proportionate. However, it found that Article 14 should be construed in a way as to provide effective safeguards and protections from discrimination. The stated of aim of the Regulations was to ‘encourage greater access to higher education, primarily for those wishing to improve their skills and qualifications’. The Court found the refusal was not proportionate and as result of which the applicant’s access to education became merely illusory. Less intrusive measures such as imposing a requirement that older individuals demonstrate an intention to enter employment and/or the prospect of repaying the loan. Accordingly, the restriction in the Regulations was found to be disproportionate.
The Court also considered the case under the Equality Act 2010 which imposes upon public authorities a duty to have due regard to the need to eliminate discrimination when exercising their functions. The Regulations had been previously 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. The Court determined if the Scottish Ministers had reasonably scrutinized the Regulations when adopting this amendment they would have realised its evidently discriminatory effects. As such it should have been amended to remove the age restriction on the availabiluty of student loans.
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