Ask the panel

December 8, 2006

Worried about your employment, maternity, pension rights? Send your questions to The Times Higher advice panel.

My team is responsible for student finance and I have received conflicting advice about the impacts of the age equality legislation on bursaries and scholarships. However, the information on this legislation that I have received to date does not explicitly clarify what sort of actions we need to take with respect to bursaries and scholarships. Will the new legislation require us to review existing policies?

* Our panellist from the University and College Union says: "The only honest answer here is that nobody knows. The Department of Trade and Industry, in their Guidance for Vocational Training Providers , claims: 'Bursaries and scholarships are also not covered (by the directive and hence the regulations) because they are incentives, as opposed to relating directly to access.'

"The Govern-ment's line all along has been that its funding policies (currently hugely age-discriminatory in that they are leading to savage cuts in adult education) are legal, in that the European directive on which the age regulations are based gives an exemption for state-funded schemes. It maintains that access to education must be free of age discrimination, but that funding of education can discriminate on the grounds of age.

"Bursaries and scholarships seem to fall between two stools. The DTI seems confident that they are not covered by the regulations, but these do not directly refer to the exemptions that the Department for Education and Skills claims apply to vocational training. Some legal advice seems to suggest that the Government may be wrong about bursaries and scholarships.

If age limits are a condition of funding laid down in a charitable trust, they would probably be exempt. But if the funds are provided by the institution itself, it might prove necessary to justify maximum or minimum age limits. Like so much else in the age regulations, what is or is not illegal will not become clear unless a court case is brought on this specific issue."

* Our panellist from the Equality Challenge Unit says: "There are different views as to whether and how the age regulations apply to the provision of bursaries and scholarships, and until case law has clarified this issue, our advice cannot be definitive.

"For the time being, the ECU recommends that you treat the age regulations as applying to access funds, bursaries and scholarships.

Ideally, this would mean that maximum and minimum age limits are removed, but where institutions wish to maintain them there must be objective justification for that decision.

"For example, it is unlikely that an access fund that was available to less-advantaged students over 25 could be justified. Financial assistance programmes where all applicants are means tested are likely to represent a non-discriminatory way of selecting students for funding. This makes for a more objective method of providing financial assistance to all students.

"A financial assistance programme for older students taking courses leading to particular occupations, for example, might be permissible as the age regulations include a positive action exception. This exception can be used only for training that prevents or compensates for age- related disadvantages in that area of work. Where a course is not linked to such occupations, the positive action exception may not be relevant.

"Institutions should also consider the position regarding other bursaries or scholarships. It is necessary to distinguish between funds that are provided to the institution under a charitable trust (which may have a minimum or maximum age as a condition of eligibility) and those established by the institution itself. The regulations do not apply in the former case, but may apply in the latter, for example, scholarships or bursaries could be said to be 'benefits' provided to certain students. In these circumstances, to be lawful, any minimum or maximum age limits must be justified."

This advice panel includes the University and College Union, the Universities and Colleges Employers' Association, Research Councils UK, the Equality Challenge Unit and Rachel Flecker, an academic who sits on Bristol University's contract research working party. Send questions to advicepanel@thes.co.uk

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