England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 May 2007

1. MR JUSTICE GIBBS: Mrs Amoako, the applicant, renews her application for permission to challenge a decision of the Secretary of State for Education and Skills denying her funding for a university course. She renews her application following a refusal of it by Munby J on consideration of the papers. In refusing the application, Munby J said as follows:

"The Secretary of State has set out in his acknowledgment of service carefully and clearly his defence to this claim and the reasons why he asserts that permission to apply for judicial review should be refused. I can see no even arguable answer to what the Secretary of State is saying, and on that ground permission must be refused. The Secretary of State seeks to rely upon the claimant's delay in bringing this claim. I make clear that that is not the reason why I am refusing permission. Had I thought that her claim was otherwise arguable I would not have refused permission on the ground of delay alone."

2. I share Munby J's view on the question of delay, and delay is certainly no bar to my considering this application on its merits. The basis of the claim sought to be put forward can be summarised in this way: that the refusal of financial support to her is an infringement of her right to education under Article 2 of Protocol 1 of the European Convention on Human Rights. It is an infringement of her Article 8 right to family life, and it is also an infringement of Article 14 since the application of the relevant policy is discriminatory in that it discriminates against people of low income.
3. Further, it is submitted that the refusal to provide financial support on the basis given by the defendant is inconsistent with other policies of the Government, particularly that under the new deal for lone parents, which sets out a number of measures to encourage lone parents to get back into the workplace.
4. The discrimination point which is advanced is, it is argued, reinforced by the fact that students who seek to go on certain courses, for example teacher training, are not faced with this barrier to finance that this applicant has to contend with.
5. The applicant also makes the point that she did not receive public funding for the first degree that she obtained in the United Kingdom many years ago, and therefore any argument that it would be an undue call upon public funds to finance her degree course on this occasion would be without foundation.
6. The legal framework which applies in the case is in Chapter I of Part II of the Teaching and Higher Education Act 1988 under the heading "Student support". It provides:

"(1) Regulations shall make provision authorising or requiring the Secretary of State to make grants or loans, for any prescribed purposes, to eligible students in connection with their attending—

(a) higher education courses, or

(b) further education courses,

which are designated for the purposes of this section by or under the regulations."

7. Section 22(2) outlines matters which may be addressed by the regulations, which include provisions for determining whether a person is an eligible student for a grant or loan. The regulations relevant to this case are the Education (Student Support) Regulations 2005. In relation to part-time students, Regulation 34 provides as follows:

"(1) An eligible part-time student shall qualify for support in connection with his undertaking a designated part-time course subject to and in accordance with this Part.

...

An eligible part-time student shall not qualify for support under regulation 37 if he holds a first degree from an educational institution in the United Kingdom."

The facts here are that the applicant has asked for funding for a designated part-time course as mentioned in the regulations, and has applied to undertake such a course. She is excluded, however, on the face of the regulations by the fact that she has obtained a first degree in the United Kingdom. The regulations make no distinction on the basis of whether or not funding was granted by the state for that first degree. Nor do the regulations provide any discretion to the Secretary of State either to waive the mandatory exclusion of persons such as the applicant, or indeed any general discretion on the matter at all. Accordingly, for the claim to succeed it seems to me that the applicant would have to show that the provisions involved, either generally or in their application to her particular case, were unlawful and/or fell foul of the European Convention on Human Rights.

The applicant makes a powerful case that it is unfair to her that she cannot get access to this particular course. She stresses the point about those courses which may be funded even for those who have obtained a first degree in the United Kingdom. She says that she cannot get past "go" so far as this course is concerned because she cannot even raise the deposit from her own private means. She elaborates the point about the encouragement of lone parents to get back into the workplace, and says that the situation which she now faces is a positive and unreasonable discouragement to her to pursue her chosen course. She notes that the qualification she obtained in her first degree many years ago is irrelevant to the kind of job that she wishes to seek now.

In relation to the issue of making an undue call on public funds, if that is a consideration, she stresses the fact that her first university course was privately paid for, not publicly funded.

I have considered those points with care, and as I have indicated, I have sympathy with the situation in human terms which the applicant finds herself in. But that is not the test so far as this court is concerned. This court has to apply the relevant law. As it seems to me, the regulations provide no discretion to the Secretary of State to do other than to refuse the applicant's application for funding. In my judgment, therefore, it is a question of whether the Act and the regulations approved by Parliament are unlawful or in breach of the applicant's human rights.

It seems to me that the case that they are unlawful cannot reasonably be argued. The policy which gave rise to the regulations in question is, so it is submitted by Ms Patry-Hoskins on behalf of the Secretary of State, broadly informed by two aspects of the matter: first that the priority, so far as limited public funds are concerned, should be given to funding those who have not already got a degree; and second by the fact that the grant of funding to those who already have a degree provide limited or reduced returns for the public funds expended. It seems to me that this underlying policy cannot be described as unreasonable and that its application cannot be described, even arguably, as an infringement of human rights.

As Ms Patry-Hoskins points out, an inevitable consequence of a policy, even a sensible and properly based policy, can be that it impacts more favourably on some individuals than on others. I accept Ms Patry-Hoskins' submissions that such inconsistency (if it can properly be so described) cannot be relied on here as a matter of law. Taking for example the case of trainee teachers, the Government is, as it seems to me, entitled to set up schemes in relation to such people which are more favourable in terms of the grant of public funding than schemes under which the applicant has applied. It is legitimate for the Government to determine its own priorities and to legislate accordingly.

I am also bound to accept the written submissions made by Ms Patry-Hoskins that the decision is not a denial of access to education, and that it is proper to draw a distinction between funding for education and the right to education itself. The regulations apply equally to all, whatever their financial situation, and whether they are lone parents or otherwise. It is, in my judgment, not possible to argue with any realistic prospect of success that they are discriminatory in the sense intended by the European Convention of Human Rights.

Essentially, my conclusion is that the points made by the applicant from a legal point of view have no arguable merit. A change in the regulations, if that is to be achieved, are in the political sphere rather than the legal one. For those reasons, the renewed application must be refused.

8. MS PATRY-HOSKINS: My Lord, there is no further application.
9. MR JUSTICE GIBBS: Thank you very much.