Miss G says the SLC provided contradictory and conflicting reasons for the refusal of her student loan application
10. Our Principles expect organisations to be open and accountable. Public bodies should give people information and, if appropriate, advice that is clear, accurate, complete, relevant, and timely. Public bodies should be open and truthful when accounting for their decisions and actions. They should state their criteria for decision making and give reasons for their decisions.
11. The SLC’s ‘Long Residency’ eligibility regulations (the Regulations) affect students who have limited, discretionary, or exceptional leave to remain and have lived most of their lives in the UK. For Miss G, this meant she needed to satisfy the following to qualify for a student loan: · lived in the UK for at least seven years before the first day of the first academic year of her course · ordinarily resident in England on the first day of the first academic year of her course · been ordinarily and lawfully resident in the UK the three years before the first day of the first academic year · in those three years, not have moved to the UK wholly or mainly for the purpose of education.
12. The SLC’s guidance says ‘ordinarily resident’ can be any residency status so long as it was granted by the Home Office and covers the relevant period. We understand only the Home Office can grant residency status through visa applications, and so it is reasonable only evidence from the Home Office will satisfy these criteria.
13. Miss G’s circumstances meant she was unable to show she was ordinarily resident for three years before the start of her course, as required by the Regulations. The Home Office letter confirming her residency status refers to discretionary leave to remain from 9 June 2015. As her course would start in September 2016, Miss G needed to satisfy her residency status from September 2013. Therefore, it is clear Miss G did not meet the SLC’s guidance for being ordinarily resident in the UK for three years before the start of her course, based on the evidence available from the Home Office.
14. Miss G appealed an initial decision to refuse her funding in April 2016, citing the then interim SLC policy on long residency. The SLC did not progress the appeal at this time as the Regulations were being updated. The SLC wrote to Miss G on 9 June 2016 saying she was ineligible for funding but invited her to supply information about her life in the UK and her residency status for the previous there years. Miss G supplied the Home Office letter, dated 9 June 2015, along with evidence of her education and her mother’s council tax and P60 forms. On 28 June 2016, the SLC wrote to Miss G asking her for more information about her life in the UK, and her residency status. These requests were repeated on 20 July, 1 September, and 8 November 2016. The SLC’s communication of why it could not proceed with Miss G’s application then became contradictory and conflicting. Instead of simply saying Miss G’s immigration status could not be satisfied, based on the evidence of the Home Office letter, its letters requested more evidence of different ways she could demonstrate residency and her immigration status. This was not clear to Miss G as she believed she had provided this information.
15. Based on the evidence we have seen, it is not clear why the SLC kept asking for this information. It had made its own enquiries with the Home Office on 5 July 2016 and had information of Miss G’s immigration status, from 2003 to the then present date. This showed there were gaps in Miss G’s ordinarily residency. From this point onwards, there was no information Miss G could supply which would challenge the information the SLC received directly from the Home Office. It was only the first appeal response, dated 19 May 2017, which explained why Miss G did not satisfy the long residency requirement, and explained the Home Office had confirmed she did not hold a valid status (for the purpose of the Regulation) for three years before the start of her course. The SLC’s failure to provide Miss G with accurate reasons for its decision meant it was not open and accountable and amounts to maladministration.
16. We find the SLC’s repeated failure to provide information that was clear, accurate, complete, relevant, and timely was not open and accountable and amounts to maladministration.
Miss G says the SLC did not consider the basis of her appeal appropriately
17. Our Principles expect organisations to get it right. They say all public bodies’ decision making should take account of all relevant considerations, ignore irrelevant ones, and balance the evidence appropriately.
18. We have explained earlier that the interpretation ‘ordinarily resident’, relevant to the SLC, is a status granted by the Home Office. We have said the SLC had the full history of Miss G’s immigration status on 5 July 2016. The SLC could not give an independent view of Miss G’s immigration status and could not appropriately consider evidence other than the Home Office’s position. There is no power in the Regulations, or any guidance or policy, for the SLC to have considered Miss G’s claim her period of being ordinarily resident was longer than the evidence from the Home Office shows. The SLC has told us it took a customer focused view when answering Miss G’s appeal. It told us the ‘long residency’ criteria was new to the Regulations, and it needed to research the points Miss G sent in her appeal to answer them thoroughly. We understand the SLC’s position of being customer focused and the uncertainty of operating a new regulation. However, the immigration principles it was being asked to consider are simply not within its remit. It is only the Home Office who have the power to make decisions on an individual’s immigration status. The SLC should have considered only what was relevant to its decision and, for anything else relating to her immigration status, advised her to seek external advice.
19. We find the SLC’s actions to be maladministrative. It failed to properly consider relevant factors. Instead of focussing on what it needed to make its decision, the SLC strayed into a discussion of what ‘ordinarily resident’ was and engaged Miss G in a discussion of how she might qualify, when none of this was within its control.
Miss G complains about the time the SLC took in resolving her complaint
20. We have explained above, we consider the SLC’s actions in considering Miss G’s appeal to be maladministrative. The time the SLC spent inappropriately considering the wrong things, through the complaints process, is a repetition and consequence of this earlier maladministration. This will be considered in the injustice section below.
Injustice
21. We will now consider the injustice to Miss G arising from the maladministration we identified. When considering injustice, we look at whether the impact to Miss G could have been avoided or minimised if the maladministration had not taken place.
22. If the SLC had explained it could not come to a different decision on Miss G’s immigration status, Miss G would have known where she stood and been able to make an informed decision about her next steps. The SLC was in a position to clearly communicate its position, along with the Home Office evidence on 5 July 2016. Instead, Miss G was not told about the Home Office check until 19 May 2017. The SLC have said Miss G was told she was not eligible, under long residency, as early as 28 July 2016. We agree this letter does say Miss G is not eligible but there is no explanation as to why, the full long residency criteria are simply listed in the letter. The evidence shows Miss G called the SLC for an explanation of its decision and was told it required further evidence from her. With clear and uncontradictory evidence, Miss G would have known the existence of the Home Office check, and that it was its decision she needed to challenge. This meant she experienced a delay of ten months, and she experienced stress and frustration in having to provide evidence and engage in correspondence which would not challenge the information the SLC already held.
23. We have identified the SLC did not get it right in the appeals process. It should have told Miss G clearly that it could not consider her immigration status as part of the appeal. There was no evidence Miss G could provide at that point which would change the information the SLC independently held from the Home Office. By engaging her in a discussion about her immigration status, it created an impression it might come to a different decision on her case. This wasted Miss G’s time, causing needless stress and frustration. The appeals process lasted from 4 October 2016 (her first email challenging the decision) to 10 September 2019. This was an injustice to her.
24. We understand the SLC’s comments on how it responded to the appeal. It believed it was considering all aspects. However, in terms of its decision, nothing had changed, and it should have been clear about that and signposted Miss G elsewhere (to the Home Office or to seek her own advice). Instead, the SLC delayed Miss G taking the appropriate action. This extended the injustice for a further two years and four months, to the end of the appeals process. This is a total of three years and two months.
25. Miss G has told us her stress and frustration went beyond not being able to pursue her degree. She says, during the appeals process, she worried her leave to remain was incorrect. She says this caused her and her mother panic. Being told she did not qualify for funding to study for her future career would have been an upsetting time. We understand this would have been confusing. We do not think it is any more than that. It is reasonable for individuals to understand their own status and seek their own independent advice if they are concerned. She also had her own evidence from the Home Office which clearly stated her leave to remain date as 9 June 2015. However, the SLC’s action did cause the inconvenience of prolonging the process for her.
26. Miss G told us she self-funded the first year of her degree, believing her concerns would be resolved by the SLC and her student loan would be granted. She said she would not have spent this money if she had known the SLC could not change its decision. She has shown us evidence of her financial losses during this time, and we have considered whether this can be linked to the maladministration we have identified. On balance, we cannot say Miss G would not have started her first year of her degree if she had been told by the SLC to take her concerns to the Home Office or elsewhere. This is because the SLC’s decision at the time was clear about one thing, she was not eligible for a student loan. Miss G took a measured risk in self-funding her first year hoping the decision would be overturned in some way. We cannot say she would not have taken a similar risk under different circumstances. This was a personal risk for Miss G to take, with no certainty of the outcome. We do recognise the emotional impact to Miss G through the delays and unclear communication she received from the SLC during this time. This is the impact we will go on to remedy in our recommendations.
27. The SLC has provided us with the 2022/23 guidance it used to determine ‘long residency’ eligibility for student funding. It is clearly stated in the guidance that the SLC ‘will validate the award of an immigration status based on a derivative right of residence via the Home Office.’ This succinctly explains the SLC’s position for deciding future applications, in that it is reliant on the information from the Home Office. This is consistent with the maladministration we have identified in Miss G’s case. We are satisfied with the update to the guidance this maladministration is unlikely to be repeated.