by Dee Masters
The Court of Session has recently handed down a decision which highlights the importance of public bodies reassessing assumptions concerning older people so as to ensure that they are not acting in a way which is discriminatory.
In Scotland, student loans, which cover living expenses during periods of study, are only available to people aged 50 to 54 if there is evidence that the student intends to enter employment after completion of the course. There is no requirement to consider future employment plans where a person is under 50. Once a person reaches 55, there is no entitlement to a student loan at all. These rules are set out in the Education (Student Loans) Scotland Regulations 2007 (“2007 Regulations”).
In R v (on the application of Hunter) v Student Awards Agency for Scotland and others  CSOH 71, a 56 year old student challenged a decision to refuse her application for a student loan. She argued that the 2007 Regulations infringed Article 14 of the European Convention on Human Rights. This article states that there should be no discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The parties agreed that “other status” included age and that the 2007 Regulations were prima facie discriminatory on the grounds of age. The battleground in the case was simply whether there was a valid justification defence.
No evidence was provided to the Court as to the rationale for excluding eligibility to students over 55 when the 2007 Regulations were initially formulated. However, a number of ex post facto justifications were advanced. All but one were rejected by the Court.
- A desire to encourage young people to enter the workforce.
This was rejected by the Court on the basis that the stated purpose of the student loans system was to ensure greater access to further education so as to improve the skills of the workforce and this was inconsistent with the purported, narrower aim of simply encouraging younger people to enter the workforce.
- A need to ensure that student loans were repaid, which was an obligation that only arose once the student started employment.
This was rejected by the Court on the basis that the state pension age had been increased to 67 so there was no reason to believe that older people would not repay their student loans by entering the workforce. Importantly, the Court also noted that if this were the aim then it could have been achieved in a more proportionate way, namely requiring evidence that students over 55 intended to enter employment after completion of the course in the same was as it was required for people aged 50 to 54. Since this “safety valve” existed for people aged 50 to 54, it tended to suggest that this was not a genuine aim for restricting eligibility for people aged 55 and over.
The only aim which the Court was prepared to accept as being legitimate and genuine was the need to distribute finite resources in an equitable way. The Court further accepted that an upper age limit could have been a valid means of achieving this aim. However, the respondents ultimately failed on the basis that there was no credible evidence that the cost of the student loan scheme would have increased, should eligibility not have been limited to under 55’s, in a way which made the restriction itself proportionate. In particular, the Court was dismissive of statistical evidence which had been provided to the Equality and Human Rights Commission in an effort to justify the upper age limit commenting that it proceeded on the basis of assumptions which were questionable.
Moreover, the Court concluded that even if a legitimate aim existed for the age restriction, there would have a more proportionate means of achieving it than simply denying eligibility to all people aged 55 and over. On this point, the Court appears to have in mind that the students aged 55 and over could simply have been required to provide evidence that they intended to enter employment after completion of the course.
This case is a powerful example of why organisations that rely on age based rules need to actively grapple with their justification. It is all too common for outdated assumptions about older people to guide decisions concerning their treatment. No doubt, when formulating the 2007 Regulations, policy makers were influenced by stereotypical assumptions that people over 55 are not committed or interested in paid work hence limiting eligibility. However, demographics are rapidly changing and the workforce is getting much older. Historic assumptions about older people are often no longer valid and this means re-evaluating discriminatory practices so as to ensure that they can be justified.