I finally have something worthwhile to say in 2016, and unfortunately it’s in response to a Conservative measure. An article by @JBeattieMirror highlighted that the Tories have blocked a debate concerning the end of maintenance grants. On Thursday the 14th of January this year, the Third Delegated Legislation Committee discussed the Education (Student Support) (Amendment) Regulations 2015 (Regulations) which was voted in favour for with a ten to eight majority. The explanatory memorandum to these Regulations maintain that 2016 cohort students, will no longer qualify for maintenance grant or special support grant, but will instead qualify for an increased loan for living costs in 2016/17 (para 4.2). A 2016 cohort student according to Regulation 4(iv) is a full-time student who begins their academic course on or after August 2016. Regulation 19 inserts the following into Regulation 56 of its predecessor:
A current system student who is not a 2016 cohort student qualifies in accordance with this regulation for a maintenance grant in connection with the student’s attendance on a designated course (other than a distance learning course) (bolded for emphasis).
Meaning precisely what has been said above, that grants and special support are to be made obsolete for students starting courses this year.
From a human rights perspective, what exactly are the implications of these Regulations? The starting point would be that university courses fall within the realm of higher education (Leyla Şahin v. Turkey – (Application no. 44774/98) para 141), and the corresponding right from the European Convention on Human Rights (ECHR) is Article 2 Protocol 1 (A2P1) which stipulates that:
[i] No person shall be denied the right to education.
[ii] In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
This Protocol is incorporated into UK law through Schedule 1 of the Human Rights Act 1998 (HRA 1998). Section 15(1)(a) of the HRA 1998 sets out reservations in Part II Schedule 3 to the effect that the principle affirmed in the second sentence of A2P1 only so far as compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. This as noted, by implication, that the UK accepts unreservedly the principle that “no person shall be denied the right to education” set out in the first sentence of A2P1.
The basis the argument would be that removing the maintenance grant and special support will indirectly discriminate against those from poorer backgrounds making them less likely to go into higher education. As the amount of grant was relative to household income, for example under the old Regulation 57(3)(a), a student whose household income was below £25,000 would receive £2,984. This is where Article 14 would take effect, this is the discrimination Article which states that:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground 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.
Article 14 is not a standalone right and can only be used in conjunction with another substantive right (Sommerfield v Germany – (Application no. 31871/96) para 84) in this instance A2P1. In terms of the poorest students, they would likely fall under the ‘social origin’ category which the Committee on Economic, Social and Cultural Rights (CESCR) refers to a person’s inherited social status (para 24). Also according to a handbook jointly collaborated upon by the European Court of Human Rights (ECtHR) and European Union Agency for Fundamental Rights (EUAFR) who regarded social origin as possibly relating to a position that they have acquired through birth into a particular social class or community (such as those based on ethnicity, religion, or ideology), or from one’s social situation such as poverty and homelessness. In the unlikely event poorer students would fall outside the ambit of ‘social origin’ they would fall under ‘other status’ where the Grand Chamber (GC) of the ECtHR in Carson and Others v United Kingdom (Application no. 42184/05) noted that only differences in treatment based on a personal characteristic (or “status”) by which persons or groups of persons are distinguishable from each other are capable of amounting to discrimination within the meaning of Article 14. Economic status based on residential income would and should quite easily fall into this as noted in Hurley and Moore, R (on the application of) v Secretary of State for Business Innovation & Skills  EWHC 201 (Admin) (para 29).
The jurisprudence of A2P1 has grown from not guaranteeing access to any particular educational institution the domestic system does provide, or that a breach requires evidence of a systemic failure of the national educational system as a whole resulting in the individual not having access to a minimum level of education within it (Simpson v United Kingdom (1989) 64 DR 188) to the point where for example A2P1 must be read in light of Articles 8-10 ((Leyla Şahin v. Turkey – (Application no. 44774/98) para 155). In the Belgian linguistic case the ECtHR held that although Article 8 does not grant a right to education as it mainly concerns protecting the individual against arbitrary interference by the public authorities in his private family life, that does not mean measures taken in the field of education won’t affect those rights (B para 7). Similarly A2P1 must be read in light of Article 10 which pertain to the freedom … to receive and impart information and ideas (Kjeldsen, Busk Madsen and Pedersen – (Application no. 5095/71; 5920/72; 5926/72) (para 52)). Thus the argument would be that the removal of maintenance grants and other forms of support create a restriction (Leyla Şahin v. Turkey – (Application no. 44774/98) para 157) on the right to education based on social origin/other status and also interferes with Article 8 and 10 in an indirectly discriminatory manner. But for the sake of (shortening) this blog post, A2P1 in conjunction with Article 14 will only be considered .
The trebling of tuition fees:
The starting point is the High Court decision in Hurley and Moore, R (on the application of) v Secretary of State for Business Innovation & Skills  EWHC 201 (Admin). This case concerned the trebling of tuition fees and its potential for (indirect) discrimination towards those from poorer backgrounds (para 4), the Secretary of State contested this (para 5). In order to demonstrate evidence of indirect discrimination, the GC in D.H. and Others v. the Czech Republic – (Application no. 57325/00) held that it adopts conclusions that are:
[S]upported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. (para 178).
The GC also accepted that statistic (although not in the past) can be relied upon to demonstrate a difference in treatment between two groups (para 180). Once a rebuttable assumption has been established the onus then shifts on the respondent State/Government (para 189), nor is discriminatory intent required (para 184 and 194).
In Hurley, evidence took the form of the Browne Report, which looked at higher education funding. It drew from research regarding participation rates from more socially deprived students. One such research paper titled Assessing the Impact of the New Student Support Arrangements carried out by the Institute for Employment Studies maintained that since the reintroduction of grants and other support arrangements, there was no significant change in participation but acknowledged that any potentially negative impact on the propensity to enter HE amongst those from lower socio-economic backgrounds may have been masked by the counter pressures arising from the recession. They concluded that the introduction of grants and bursaries did not encouraged greater participation (p60-61). Other research also supported this assertion (para 17). However, it was incorrectly noted that research on the Impact of Tuition Fees and Support on University Participation in the UK which stipulated that a £1,000 increase in loan increased participation by 3.2% (para 17). When in actual fact, the research demonstrated that an increase in £1,000 in fees resulted in a decrease in participation of 3.9 percentage points (not 4.4% stated by the court), and maintenance grants with an increase of £1,000 had an increase in participation of a 2.6 percentage points (not 2.1% stated by the court) and the increase in loans the participation percentage points was never measured. Thus it seems the court itself made an error of fact (which I will come to later).
In the case, Elias LJ accepted that the case law of the ECtHR regarded tuition fees as a restriction on A2P1 (para 40) but that it did not agree that it impair the essence of the right (para 42). When it came to discrimination because of the hike in fees, Elias LJ accepted that an increase in fees alone would discourage many from going to university and would in particular be likely to have a disproportionate impact on the poorer sections of the community, but an increase in fees cannot be looked at in isolation (para 51). Furthermore, the increases in fees were mitigated by loans and various measures (i.e. maintenance grants) targeted at increasing university access to the poorest students (para 52). Elias LJ found that he did not think that at this stage it is sufficiently clear that as a group they will be disadvantaged under the new scheme (para 52). Elias LJ did not find the evidence whether statistical or by way of rebuttable presumption satisfactory to rule in the claimants favour, but accepted that in time the facts may prove them right. However, overall with Mr Justice King agreeing (para 101-102) the High Court did not conclude in the claimants favour (notwithstanding a declaration that there had been a failure in the Public Sector Equality Duty) of a violation of A2P1 in conjunction with Article 14.
Applying Human Rights and Hurley to the present facts:
Before going further into arguments, it is important to note, a certain obstacle, the ECtHR have noted that a Member State’s margin of appreciation (discretion) when it comes to university (the particular case regarded tuition fees) is much wider than it would be when compared to primary and secondary education (Ponomaryovi v Bulgaria – (Application no. 5335/05) para 56). This is why the trebling in fees was ruled as Convention compliant.
But the present situation is different. Firstly when Elias’ LJ referred to an increase in £1,000 loans increased participation, it was noted that the study did not consider this (unless I’m reading the wrong study) and should therefore be rejected and that particular study cannot be used to justify an argument that an increase in loans will increase participation.
Secondly, Elias LJ noted the importance (para 52) of measures directly targeted at increasing university access to poorer students. In the report titled Urgent reforms to higher education funding and student finance it was maintained that an increase in maintenance grants for the most socially deprived was aimed at ensuring that the 2010 Regulations i.e. trebling in tuition fees did not affect individuals from lower socio-economic backgrounds disproportionately (p5). This however, would no longer be the case if grants are to be removed.
Thirdly, Elias LJ did not buy into the assertion that the motivations for the measures were to save money (see para 59 and 62). However, one of the objectives announced by George Osborne last year, was to make savings in the higher education and further education budgets. Andrew McGettigan maintained back then (in 2015) that the cuts would likely affect grants (see here, and here) which was later confirmed by Osborne himself noting that it was unfair on the taxpayer to subsidise people who are more likely to earn more than them (divide and conquer much?). McGettigan also questioned whether the obligation to make savings on the public sector net debt, rather than the deficit, then a switch from grants to loans would not be sufficient as the loans would contribute to the debt. Therefore the argument of saving money would need to be taken into consideration.
One of the criticisms made by Elias LJ in Hurley was rejecting the contention that the decision was made without proper consultation and analysis. To my knowledge there had been no consultation, and thus no responses, so already these measures would be on the back foot.
When it comes to analysis, pointing back to research which stipulated that an increase in tuition fee decreased participation, whilst an increase in maintenance grant increased participation, further research was carried out which stipulated that an £1,000 increase grants lead to an 3.9% increase in participation where it was concluded that ‘[t]hese results underlie the importance of government commitment to non-repayable forms of upfront support such as maintenance grants for undergraduate degree participation.’ Moreover, the analysis from the Institute of Fiscal Studies in their executive summary (p5) noted the possible effects of the measures as a whole. They said that reduction in participation of those from the poorest backgrounds depended upon how debt averse students are and how credit constrained they are, as well as on how responsive participation decisions are to expected increases in the long-run cost of higher education. Furthermore, although participation did not decrease due to the price hikes, the situations are not analogous as grants went up for the poorest and the net present of loans went down. They contend a system that abolishes grants and d the net present value of repayments is likely to increase substantially for those from the poorest backgrounds and therefore would expect ‘both of those changes to have negative effects on participation for the poorest students.’ However, the up-front support would be increased and may have an offsetting effect if these individuals are not very forward looking and/or they are very credit constrained and/or they expect to have low lifetime income. They concluded that t the potential negative effects on participation to be stronger if all of the proposed reforms are introduced.
With regards to debt aversion, research by the University of Edinburgh concluded that interviewees from Scotland and England were concerned that tuition fees may deter young people from poorer backgrounds from going to university (p13). Back in 2005, it was noted that students from poorer backgrounds were more debt averse than those from other social classes (p 15). In a research briefing paper, the National Union of Students, Sutton Trust, University and Colleges Union were not in favour of abolishing grants, whilst University Alliance would have preferred an increase in grants understood that the government had hard decisions to make. Million+ noted the importance of grants, and urged the government to assess the impact of this switch on university access. Universities UK noted financially the situation is no different bar the increased debt, but that changes to the funding systems do not deter students from the poorest background (p14-15). Therefore, some were totally against the idea, and others were concerned that assessments need to be made to determine whether the measures acted as a deterrence to higher education.
According to the Higher education: (student support) regulations 2015 – equality analysis the switch to loans will have a positive impact on students from low income backgrounds by potentially easing financial worries, reducing the need to work excessive hours during term time and supporting students in their studies. At the margin, for some students, it might make the difference between attending University or not (p52). This increase in £766 seems like a lot to a student (because it is) but actually wouldn’t require excessive hours of work, on minimum wage, 12 hours a week spread out of term time. This £766 may well even have been superseded anyway by bursaries that universities offer in combination with the £4k loan and £3k grant). Not that I’m assuming all universities offer them, but they are means tested like the maintenance grant, and the poorest receive the most. All it would seem that switching to loans as the analysis points out, equals more debt (p52), which indeed may never be paid back, but for those that do, perhaps another post on the loan freeze will be necessary.
Furthermore, the impact assessment specifically highlights that woman, mature students, those from ethnic minority backgrounds, those with disabilities, and certain groups of Muslims students are likely to feel the disproportionate effect of these measures (all within the ambit of Article 14) (p82-83). It also acknowledged that single parent mothers and mature students could be negatively impacted upon without any resolution, the other groups were regarded as either not being a significant risk (disability and religious belief), proposals were being put in place (ethnic minority background) (p84-85). Annex 2 points to various factors of increased participation from said groups above, but it would be unwise to ignore grants etc were available then. Either way, the onus would be on the government to disprove all this, as I would contend there are ample inferences to create a rebuttable presumption.
Although there was a Parliamentary discussion which favoured the Regulations, there is also a debate going on as I type, so the Parliamentary angle is still up in the air.
What makes the argument different than what was advocated in Hurley is obviously an increase in fees plus a removal of grants adds a further restriction to accessing universities. But what wasn’t used in the claimants arguments was that discrimination should be seen in light of Thlimennos v Greece – 34369/97  ECHR 162, where the ECtHR held that Article 14s can also be violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (para 44). And this is the crucial point when in concerns the poorest, disabled, single parents etc. The situation for those eligible for Special Support Grants (SSG) the human rights argument may be stronger as in Burnip v Birmingham City Council (Rev 1)  EWCA Civ 629 (a bedroom tax case) found a violation in line with Thlimennos for failing to treat different circumstances differently without objective reasonable justification. The Court of Appeal further held that the Thlimennos principle was not barred from applying positive obligation to the allocate resources (para 18). Thus this reasoning could be used to suggest that Thlimennos could be interpreted as creating a positive obligation to cater for those who are disadvantaged. However, a similar case in that of MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions  EWCA Civ 13 the Court of Appeal , felt that the tax was justified based on the discretionary payments were available. Unlike maintenance grants and SSP, there will be no discretion in their allocation, this would work against the abolition of grants.
Although the UK has a wider discretion when it comes to universities and how it is financed, they are not barred from treating different groups differently to correct factual inequalities (Stec and Others v United Kingdom – 65731/01  ECHR 1162 para 51), but consideration must also be taken into account when it comes to those a general rule will affect the most, thus applying Thlimennos may oblige them to permit grants for the most disadvantaged. The jury is out on whether a court would actually buy into my points (THIS IS NOT LEGAL ADVICE, I’m looking at you NUS ;)), but whatever the matter, the argument is now stronger than it was in 2012 because of the further restriction of access to education on the grounds of A2P1 in conjunction with Article 14. The government if taken to court would have to use stronger justifications rather than rhetoric such as ‘why should tax payers subsidise X?’ which could be used to justify essentially anything ever. I couldn’t go into a full ECHR analysis of all the Convention Rights at stake or even all the measures (loan freeze etc) because those require just as much consideration as this one post.