Scottish Government

Consultation Document: Consolidation and Alignment of Student Support Regulations

Introduction

1. This consultation paper invites comments on the consolidation and alignment of student support regulations, and on a number of proposed policy amendments for future change.

2. As well as consolidating the 7 student support regulations listed below, we intend to make several amendments and clarify the regulations where the policy intention is not clear. In addition we are proposing a number of recommendations for changes which would align the residence criteria across student support for Further Education, Higher Education and Education Maintenance Allowances, as set out below within the regulations,

3. The regulations to be consolidated and amended are:-

• The Nursing and Midwifery Student Allowances (Scotland) Regulations 1992
• The Education Authorities Bursaries (Scotland) Regulations 1995
• The Education (Fees and Awards) (Scotland) Regulations 1997
• The Students' Allowances (Scotland) Regulations 1999
• The Education (Student Loans) (Scotland) Regulations 2000
• The Graduate Endowment (Scotland) Regulations 2001
• The Education Maintenance Allowances (Scotland) Regulations 2004.

Background

4. The Scottish Executive provides fee and living costs support for eligible students undertaking study at advanced (higher education) level in Scotland or elsewhere in the UK, and non-advanced (further education) level in Scotland (support for further education study in England is generally at the discretion of local authorities). This includes Higher Education ( HE) student support, Further Education ( FE) student support, Education Maintenance Allowances ( EMAs) and Individual Learning Accounts ( ILAs).

5. In order to be eligible for support, students must meet certain residence criteria. These criteria, which have been a feature of student support across the UK in some form since 1962, ensure that eligibility is determined by residence rather than nationality.

6. Since the regulations listed above were first introduced there have been a number of amendments made to each resulting in numerous amending regulations that have to be taken into account before an interpretation of the regulation can be made. It is normal practice to consolidate regulations (and produce a new 'clean' version) after 5 or 6 amendments have been made to the original. The draft consolidated regulations are set out in Annexes E to K for your information and comment.

7. Following the Review of Funding For Learners ¹ ( FFL) Division in the Scottish Executive in 2004, it was decided that a one-off project should examine the current residence criteria which govern HE and FE student support, EMAs and ILAs, with a view to aligning these, as appropriate, to improve the coherence, equity and effectiveness of student support.

The Residence Project undertaken by FFL made a number of recommendations for changes which would align the residence criteria across FE, HE and EMAs ². Although the Project did not look at the Nursing and Midwifery Regulations ³ or the Education Authority Bursary Regulations ⁴, these also have been amended where similar issues apply.

Consultation Issues

8. We would welcome your comments on the proposed clarifications and technical changes listed in Annex A and the draft consolidated regulations in Annexes E to K. In particular, you are asked to consider the proposed amendments to align the residence criteria across the regulations and also the proposed future policy changes listed below.

Proposed alignment amendments

8.1 Amendment 1. We propose to Amend Regulation 2(3) and 2(4) of the Student Loans Regulations ⁵ and Schedule 1 Paragraphs (11) and (12) of the Fees and Awards Regulations to consider eligible periods of temporary study abroad by the student, parent or spouse towards ordinary residence and amend Schedule 2 Paragraph (10) of the Fees and Awards Regulations ⁶ to include periods of temporary study abroad by the student's parents towards the ordinary residence criteria.

Background and Impact: These paragraphs determine whether a student should be considered to fulfil the ordinary residence criteria at the start of the course and for the 3 year period, despite temporary absence. Generally this relates to temporary employment or study by the student, partner or parent, although there are slight differences in the regulations relating to student loans and the level of fees to be charged in HE. These amendments will ensure that the same provision applies across the support packages, and so avoid, for example, an HE student being eligible for support but ineligible for home rate fees.

Do you agree to this proposed amendment and/or have any comments?

8.2 Amendment 2. We propose to amend Schedule 1 Paragraph 11 of the Students' Allowances Regulations, ⁷ Nursing Bursary Regulations and the Education Authority Bursaries Regulations to refer to the first day of the academic year for which the student is seeking support, rather than the "relevant day".

Background and Impact: This paragraph is intended to enable students who have received an award in the previous year of a course to continue to be eligible for support. It was first introduced prior to the introduction of the settled status requirement to ensure that continuing students retained their eligibility for support. However, as currently drafted in the Student Allowances Regulations, reference is made to the year prior to the relevant day (which is defined as the first day of the course), rather than to the year prior to the current year of the course. This amendment will clarify the intention that students can be eligible if they received support in the previous year of the same course, and will align this with similar provision in the EMA Regulations ⁸.

Do you agree to this proposed amendment and/or have any comments?

8.3 Amendment 3. We propose to amend regulations governing HE support to ensure that reference is made to the same dates when determining residence eligibility for each form of support. No amendments are to be made to the EMA, Nursing and Midwifery and Education Authority Regulations. The proposed definition of "the relevant date or day" is:

(a) as respects a course starting in the period 1st August to 31st December, 1st August;
(b) as respects a course starting in the period 1st January to 31st March, 1st January;
(c) as respects a course starting in the period 1st April to 30 June, 1st April; and
(d) as respects a course starting in the period 1st July to 31st July, 1st July,

in each case the relevant date being in the year of commencement of the appropriate academic year of the course;

Background and Impact: Reference is made to a date in relation to the start of the course when determining a student's ordinary residence. Different dates are currently used in relation to various elements of HE support. This amendment will ensure that students' eligibility for all HE support will be established with reference to a single date. FE support will remain flexible according to the start date of the course, and the policy intentions of the EMA programme, where students can become eligible part way through the academic year, will be reflected.

Do you agree to this proposed amendment and/or have any comments?

8.4 Amendment 4. We propose, as appropriate, to ensure that regulations and directions refer to applicants in gender-neutral terms.

Background and Impact: There is a mix of gender-neutral and gender-specific terms used in the various regulations. There is no direct impact on students' eligibility caused by this, as terms can be interpreted to apply to all genders as necessary. However, it is appropriate that references are updated.

Do you agree to this proposed amendment and/or have any comments?

8.5 Amendment 5. We proposed to amend the definitions of "parent" and "child" in the EMA Regulations, Student Loans Regulations and Fees and Awards Regulations to that used in the other regulations. The Proposed definition is:

"parent" includes step-parent, a guardian, any other person having parental responsibilities for a child and any person having care of a child, and "child" shall be construed accordingly;

Background and Impact: There is no real consistency in the way "child" and "parent" are defined in the student support legislation. This amendment will ensure that a consistent approach is taken to the concept of "parent" and "child" across the sectors.

Do you agree to this proposed amendment and/or have any comments?

8.6 Amendment 6. We propose to choose one of the definitions for "independent" and "married" currently used in the various regulations and directions, and amend all/some others to suit. Proposed definition is:

" an independent student" means a person who prior to the relevant date/day -

(a) has attained the age of 25 years;

(b) is married or in a civil partnership;

(c) has no parent living;

(d) has been self-supporting out of their earnings for periods aggregating not less than 3 years.

Background and Impact: It is sometimes necessary to establish whether a student is "independent" when assessing their residence criteria. Whether or not a student is "married" can also be a factor in this, but the regulations currently use various definitions of these terms. This amendment will align these criteria to develop a consistent, more practical system, on which eligibility for "independent" and "married" status is based on one single set of criteria.

Do you agree to this proposed amendment and/or have any comments?

Proposed Future Policy Amendments

8.7 Future Amendment 1. Eligible Courses - We propose to amend the Students' Allowances Regulations and the Fees & Awards Regulations with regards to the definition of courses which are eligible for support, and make no changes to the other regulations.

Different approaches are taken in defining what courses should be eligible for support, which can potentially be difficult when applying the criteria. This amendment will ensure consistency in the way HE students are assessed for home fee status and other (non-loan) student support.

Background and Impact: There are different approaches taken to defining the education covered, for example the Fees and Awards regulations define "course" by the institution which provides it while The Student Loans regulations provides much more detail as to what these courses actually are.

Different definitions are used in terms of eligibility for living costs support. Some provide minimum periods of duration (for example 24 weeks for full-time in the Graduate Endowment regulations, and 18 weeks for sandwich courses in the Student Loans regulations) while others do not. Student Awards regulations refer only to "course of education", although SAAS offers further quasi-legal guidance on course eligibility under the Students' Allowances Scheme, including, for example, the term "continuous programme of study".

This potentially creates difficulties in the application of the different eligibility criteria for a particular student, rather than just which courses are eligible .

There is potential for a student on a "continuous programme of study" to become residentially eligible for a loan part way through the programme, but to continue to be ineligible for fees and grants. In addition, there may be courses of shorter duration which otherwise ought to be eligible for support, for example some HNC courses of 16 or 17 hours per week.

The definitions currently used in the other regulations reflect the nature of the programmes to which they apply, such as non-advanced education for EMAs, and age criteria for loan support.

By amending the Student Allowances regulations and Fees & Awards regulations there will be enhanced consistency in the way students are assessed for home fee status and other (non-loan) student support.

Do you agree to this proposed amendment and/or have any comments?

8.8 Future Amendment 2: We would like your views on revoking the Education Authority Bursary Regulations

Background and Impact: Education authorities have the power (in section 49 of the Education (Scotland) Act 1980) to pay bursaries to pupils who are over compulsory school age and in full-time or part-time education. These are known as Higher School Bursaries ( HSBs) and the criteria for their payment are limited by the Education Authorities Bursaries (Scotland) Regulations 1995. These Regulations mean that:

• a person must be "ordinarily resident" in a place for, or at, a particular time, to be eligible for an HSB;
• authorities decide the amount of an HSB, and it can include sums to cover such things as tuition fees, travelling expenses, and maintenance for the bursary holder or those dependent on the holder;
• an HSB holder must meet certain conditions to keep their bursary, including that the holder regularly attends the course of study in respect of which the bursary was awarded.

The introduction of the Education Maintenance Allowances ( EMAs) for 16-19 year olds in school means that Higher School Bursaries are effectively being replaced by EMAs. As a result of this the Scottish Executive has been phasing out financial support for HSBs, and this funding will end in March 2007.

As set out above the Education Authority Bursaries (Scotland) Regulations 1995 currently restrict authorities so they can only pay bursaries based on the HSB eligibility criteria and other measures in the Regulations. We are interested in your views on whether we should:

(a) revoke the Regulations, which would mean authorities would not have to follow the Higher School Bursaries eligibility criteria when awarding bursaries; or

(b) keep the Regulations in place, which would mean authorities would continue to have to follow the HSB eligibility criteria when awarding bursaries, and follow the other requirements of the Regulations. If we decide to keep the Regulations in place we will consolidate them.

Do you have any comments on revoking the Education Authority Bursaries (Scotland) Regulations 1995?

Arrangements for Consultation

9. This consultation paper is being issued to a wide range of organisations that have an interest in how student support is paid, as detailed in Annex D. Anyone who has an interest is encouraged to respond. It would be very useful if individuals could indicate in which country they are ordinarily resident when responding to the consultation. This is discretionary and entirely the choice of those who respond.

Responding to this Consultation Paper

10. We are inviting written responses to this consultation by 22 December 2006. Please send your response to:

Or by email to:

Claire.neads@scotland.gsi.gov.uk

11. If you have any queries please contact Kathleen Robertson on 0141 242 0242

12. We would be grateful if you could clearly indicate in your response which questions or part of the consultation paper you are responding to as this will aid our analysis of the responses received.

13. This consultation, and all other Scottish Executive consultation exercises, can be viewed online on the consultation web pages of the Scottish Executive website at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

14. The Scottish Executive now has an email alert system for consultations (SEConsult: http://www.scotland.gov.uk/consultations/seconsult.aspx ). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). SEconsult complements, but in no way replaces Scottish Executive distribution lists, and is designed to allow stakeholders to keep up to date with all Scottish Executive consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Alternative Formats

15. The text of this consultation paper will be made available, on request, in alternative formats. Anyone requiring the document in an alternative format should contact Claire Neads at the above address.

Handling your Response

16. We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form enclosed with this consultation paper as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential and will treat it accordingly.

17. All respondents should be aware that the Scottish Executive is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

Next Steps in the Process

18. Where respondents have given permission for their responses to be made public (see the enclosed Respondent Information Form), these will be made available to the public in the Scottish Executive Library by 25 January 2007 and on the Scottish Executive consultation web pages by 1 February 2007. We will check all responses where agreement to publish has been given for any potentially defamatory material before logging them in the library or placing them on the website. You can make arrangements to view responses by contacting the Scottish Executive Library on 0131 244 4552. Responses can be copied and sent to you, but a charge may be made for this service.

What Happens Next?

19. Following the closing date, all responses will be analysed and considered along with any other available evidence to help us to reach a decision on reviewing the distribution of payments for Higher Education student support. We aim to issue a report on this consultation process by the end of May 2005 and, if appropriate, make changes for the academic year 2006-2007.

Comments and Complaints

20. If you have any comments about how this consultation exercise has been conducted, please send them to: