Hi I wondered if anyone could help me with this.

I have a client who has had a student loan taken into account as notional income under 42(2) HB Regs.

He didn't apply for the loan for religious reasons.

Does anyone know if there is any milage in a discrimination argument on this.

Thanks

Has the decision actually been made under reg 42(2)? If so, I would try to argue that the decision should have been made under reg 64(3) (treatment of student loans). Here the applicable limb is (b) which states “he could acquire such a loan in respect of that year by taking reasonable steps to do so”.

I would argue that the key phrase is “reasonable steps” and that it was not reasonable to take steps, which fundamentally breach any core principles upon which a person’s sincerely held religious belief or faith stands.

The corresponding phrase under reg 42(2) is “from the date on which it could be expected to be acquired were an application made” with the key phrase being “could be expected to be acquired”. In my view, the expectation must be a legitimate or reasonable one and thus I would advance the above argument.

For good measure, I would ground a further argument based upon article 9(1) of The Human Rights Act (freedom of thought, conscience and religion). However, I would be aware of the caveat that although the right to hold a particular religious view is absolute, the right to manifest that belief can be limited under article 9(2).

Thats really helpful Nevip, thank you.

The issue of "notional" student loans was considered in CIS/2174/2005.

Link: http://www.rightsnet.org.uk/pdfs/CIS_2174_2005.doc

Unless there is a marked difference in the circumstances, I don't think (on the face of it) there is any mileage is pursuing an appeal in this case.

With respect, that case is distinguished. The ‘failure to apply for provision’ (reg 66A (3)(b)) did not apply to the claimant in that case and is, therefore, not part of the ratio of that decision, so that decision is not binding. Furthermore, arguments were not put under that limb on behalf of the claimant, so the commissioner did not have to decide whether that limb applied to the claimant’s circumstances at all, of which (as far as we know) her religious beliefs were not part.

Secondly, as far as the commissioner did hear argument on Reg 66A(3)(b) it was as to the vires of the reg as a whole and its purpose.

Finally, no argument was heard as to article 9 of the HRA.

If I were a betting man.... .

Lol! I am, but not a very successful one.

Isn't the difficulty here that the religious belief potentially brings with it an advantage that wouldn't be open to those that don't hold the belief ?

The issue is really around discrimination that comes out of the belief held and in this case it would mean that the applicant would be wanting to demonstrate his right to be treated more favourably rather than the usual position where the applicant would need to establish differential treatment showing that he had been treated less favourably than others in the same situation.

That is one reason why both of the arguments I would run (as above) are not based on discrimination, whether at common law, or under statute.

*bump*

Something was flickering at the back of my mind about the "discrimination" aspect.

An argument relating to religious discrimination, specifically in the context of student loans, was considered in CH/4429/2006. In summary, the (then) Cmmr found there was no breach of Article 14.

A copy of this CD is being sent to Rightsnet.

thanks to kevin, here's CH/4429/2006 ...

http://www.rightsnet.org.uk/pdfs/CH_4429_2006.doc