Amoako, R (on the application of) v Secretary of State for Education and Skills

Eligibility rules for public student support may lawfully exclude a part-time student who already holds a first degree, even where the earlier degree was privately funded. Mandatory regulations leave no discretion to waive the exclusion unless the statutory scheme or its application is unlawful.

Government may prioritise limited public funds for people without existing degrees and may create more favourable funding schemes for particular courses, such as teacher training. A refusal of funding is not itself a denial of the right to education. Rules applied equally to all applicants are not discriminatory merely because their practical impact differs according to income or personal circumstances. A challenge based only on unfairness or inconsistency has no realistic prospect of success.

The claimant sought permission for judicial review of the Secretary of State’s refusal to fund her proposed designated part-time university course. She already held a first degree obtained in the United Kingdom, although it had not been publicly funded. She argued that the refusal breached her rights under Article 2 of Protocol 1, Article 8 and Article 14 of the European Convention on Human Rights, and was inconsistent with government policies supporting lone parents and funding some other courses.

Munby J refused permission on the papers. The claimant renewed the application before Mr Justice Gibbs, who considered whether the claim was arguable despite delay.

1. Renewed application refused. Delay was not a bar, but the proposed claim had no arguable merit.
2. The statutory scheme in Chapter I of Part II of the Teaching and Higher Education Act 1988, together with the Education (Student Support) Regulations 2005, made the claimant ineligible. Regulation 34 provided that an eligible part-time student did not qualify for support under regulation 37 if she held a first degree from a United Kingdom educational institution. The regulations made no distinction between publicly and privately funded degrees and gave the Secretary of State no discretion to waive the exclusion.
3. The underlying funding policy was lawful. It gave priority to applicants without an existing degree and reflected the reduced or limited returns from funding a person who already held one. That policy could not realistically be characterised as unreasonable.
4. The existence of more favourable schemes for trainee teachers did not make the claimant’s scheme unlawful. Government was entitled to determine its funding priorities and legislate for different categories of course.
5. The refusal of financial support was properly distinguished from a denial of access to education. The rules applied equally regardless of income, lone-parent status or other personal circumstances, and their differing practical effects did not establish discrimination under the Convention.

Any change to the eligibility rules was a matter for the political process, not a basis for judicial review.

1. High Court (Administrative Court): Munby J refused permission on the papers. The claimant renewed the application.
2. High Court (Administrative Court): Mr Justice Gibbs refused the renewed application.