3. Mr S complains the SLC decided he was not eligible for student loan funding because he was not ‘ordinarily resident’ in the UK in the three years before the first year of his university course. Mr S says this decision is incorrect.
4. Mr S told us because of this he will struggle to pay his university tuition fees.
5. By bringing this complaint to us, Mr S would like the SLC to reconsider its decision. He would also like compensation.
6. Mr S told us he is a UK national, but had lived abroad for 12 years, since the age of three or four. His family moved abroad temporarily for his father’s work but kept UK citizenship and returned annually for about four weeks.
7. He told us they kept their UK residence and rented it out. Their banking and mortgage accounts stayed active in the UK and tax returns were provided to HM Revenue and Customs (HMRC) regularly.
8. Mr S told us his family originally planned to stay abroad for three years, but this was extended due to job opportunities for his father. The intention was never to stay abroad permanently.
9. Mr S also told us that if he had the opportunity he would have preferred to stay in the UK, but he was a child at the time so had no choice in the matter.
10. In May 2022 when he applied for student finance, the SLC decided he was not eligible because he did not meet the residency requirements. This was because he had not been ordinarily resident in the UK for the three years immediately before the first day of the first year of his course.
11. Mr S appealed this decision, providing UK bank statements, his father’s employment contracts and evidence of travel to the UK.
12. The SLC rejected Mr S’s appeal at stages one and two, setting out the regulations and case law defining ‘ordinarily resident’.
13. Mr S escalated his complaint to the Independent Assessor (the IA investigate the SLC independently) who upheld the SLC’s decision.
16. The SLC (and its operating arm Student Finance England) is a public body and is bound to administer the Student Support Scheme in line with the legislation laid out by Parliament in the Regulations.
17. It is responsible for billions of pounds of public money and must make sure this is done in line with the law. The SLC has very little discretion in the application of the legal framework governing its work and no authority to act outside the legislation.
18. This complaint centres on the SLC’s decision that Mr S was not ‘ordinarily resident’ in the UK in the three years before his university course started. This is a requirement to be eligible for funding.
19. In Mr S’s case, this meant he would have had to be resident in the UK from 1 September 2019 to 31 August 2022. Mr S lived abroad for 12 years from 2008 and returned to the UK in 2020.
20. ‘Ordinarily resident’ is not defined in the Regulations. As such, the SLC relies on case law to decide what defines ordinary residence. It decided that Mr S could not be considered ordinarily resident in the UK and he was not eligible for student finance.
21. Mr S appealed this decision, referring to the cases of A v A (Children: habitual residence) [2013] UKSC 60 and Jain.
22. It is important to note that it is not our role to look at case law or decide on the definition of ‘ordinarily resident’. We can only look at if we think the SLC applied a reasonable and robust rationale in its decision making and that it made its decision in line with the Regulations.
23. If Mr S feels the SLC has applied case law incorrectly, this is an issue for a court to decide and he should get legal advice.
24. We note that the IA looked at the case law referenced by both parties in this complaint and upheld the SLC’s decision, deciding that the examples of case law provided by Mr S do not help him in this case.
25. As well as not being defined in the Regulations, ‘ordinary residence’ has not been defined in any act of Parliament. The concept has been developed in case law, particularly in immigration law, education and the NHS.
26. The leading case is R V. Barnet London Borough Council, Ex parte Nillish Shah, which was decided in the House of Lords in 1982. The case was concerned with the meaning of ‘ordinary residence’ as used in the Education Acts. The five appellants (people who appeal for a decision to be changed) were all students who had come to the UK to study. None of them had the right to live in the United Kingdom.
27. In summary, it set out that ordinary residence is established if there is a regular habitual mode of life in a particular place ‘for the time being’, ‘whether of short or long duration’, the continuity of which has persisted apart from temporary or occasional absences. The residence must be voluntary and adopted for ‘a settled purpose’.
28. This is the case law relied upon by the SLC and in its responses to Mr S it clearly laid out how it relied upon this piece of case law and how it applied this in the context of the rules laid out in the Regulations.
29. We strongly sympathise with Mr S’s position. He is a UK national who moved abroad as a child for the purpose of his father’s career. We understand that he had no choice and had he been given the option, he says he would have stayed in the UK.
30. We understand why he feels it is unfair that his family’s choice to work abroad has disadvantaged him. Because he cannot get funding from the SLC, he told us he will struggle to pay tuition fees, which have increased due to the rising cost of living. This is undoubtedly stressful and inconvenient, and we do not underestimate the financial and emotional impact of this.
31. While we sympathise with Mr S’s position, we have seen no evidence that the SLC has not justified its decision and acted in line with the Regulations.
32. Our Principles say, ‘All public bodies must comply with the law and have regard for the rights of those concerned. They should act according to their statutory powers and duties and any other rules governing the service they provide. They should follow their own policy and procedural guidance, whether published or internal.’ They also say, ‘In their decision making, public bodies should have regard to the relevant legislation.’
33. In both its stage one and two responses to Mr S, the SLC has laid out clearly how it reached its decision in line with the Regulations and relevant case law. It also explained why it does not consider his father’s 12-year period of employment abroad to be temporary and why Mr S does not meet the criteria for funding.
34. Our Principles also say, ‘people should be treated fairly and consistently, so that those in similar circumstances are dealt with in a similar way’. We think it is reasonable that it relies on a specific piece of case law that has been used to assess eligibility for student funding in this way consistently.
35. This is in line with the legislation governing its work and Student Finance England’s Assessing Eligibility guidance. We would not expect it to do more. For this reason, it is not appropriate for us to investigate this complaint further.
36. We appreciate this is not the outcome Mr S was hoping for and that he believes another piece of case law contradicts the SLC’s decision. As explained above, this is not within our powers to consider but if Mr S believes the SLC has made an error of law in its decision, he should get independent legal advice.
1. We have carefully considered Mr S’s complaint about the Student Loans Company (the SLC).
2. We are sorry to hear about Mr S’s experience and that he was not eligible for student loan funding. Although we sympathise with his position, we have considered the evidence and found no sign that the SLC has done anything wrong.