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	Statutory Instruments of the Scottish Parliament
You are here: BAILII >> Databases >> Statutory Instruments of the Scottish Parliament >> The Graduate Endowment (Scotland) Regulations 2007 No. 155 URL: http://www.bailii.org/scot/legis/num_reg/2007/20070155.html

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"Directive 2004/38" means Directive 2004/38/EC of the European Parliament and of the Council[3] on the rights of citizens of the Union and their family members to move and reside freely in the territory of the member States;

"due date" means 1st April immediately following the last day of the last academic year of the course of higher education in respect of which the liability to pay the graduate endowment arises;

"employment" means full-time or part-time employment which, in a normal week, involves a significant number of hours of work and "employed" shall be construed accordingly, and references to employment include references to the holding of any office and to any occupation for gain;

"European Economic Area" means the European Community, and subject to the conditions laid down in the EEA agreement, the area comprised by Norway, Iceland and Liechtenstein;

"full-time course of higher education" means a course of fundable higher education, other than a course treated as not falling within section 5(3) of the Further and Higher Education (Scotland) Act 2005[4] by virtue of regulation 5, which is a sandwich course or a course–

(a) which persons undertaking it are normally required by the institution providing it to attend (whether at premises of the institution or elsewhere) for a period of at least 24 weeks in each academic year except the final academic year and of at least eight weeks in the final academic year; and

(b) the nature of which is such that a person undertaking it would normally require to undertake periods of study, tuition or work experience which together amount in each academic year to an average of at least 21 hours a week as respects the periods of attendance mentioned in paragraph (a) above for the year;

"liable graduate" means a graduate who is liable to pay the graduate endowment;

"loan" means a loan for the purposes of discharging the liability of a liable graduate to pay the graduate endowment made under the 1980 Act and these Regulations, including the interest accrued on the loan and any penalties or charges made in connection with it;

"parent" includes a 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;

"periods of work experience" means–

(a) periods of industrial, professional or commercial experience associated with full-time study at an institution but at a place outwith the institution; and

(b) in the case of a course which includes the study of one or more modern languages for not less than one half of the time spent studying on the course, and which includes periods of residence in a country whose language is a language of the course, such periods of residence during which the student is employed;

"relevant day" means the first day of the first academic year of a full-time course of higher education;

"sandwich course" means a course consisting of alternate periods of full-time study in an institution and periods of work experience so organised that, taking the course as a whole, the student attends for the periods of full-time study for an average of not less than 19 weeks in each year, and for the purposes of calculating their attendance the course shall be treated as beginning with the first period of full-time study and ending with the last such period; and

"the 1980 Act" means the Education (Scotland) Act 1980.

Exempt Graduates
     4. —(1) A graduate shall be exempt from liability for the graduate endowment if, on the relevant day applicable to the course of higher education in respect of which the graduate would otherwise be liable to pay the graduate endowment, the graduate–

(a) has attained the age of 25 years;

(b) is married or in a civil partnership; or

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

    (2) A graduate shall be exempt from liability for the graduate endowment if, at any time during the course of higher education in respect of which the graduate would otherwise be liable to pay the graduate endowment, the graduate–

(a) is eligible for an allowance under the Students' Allowances (Scotland) Regulations 2007[5] in respect of their being a lone parent;

(b) is eligible for an allowance under those Regulations in respect of their being a disabled student; or

(c) is a person mentioned in paragraph 8 of Schedule 1 and would have been eligible for either of the allowances mentioned in sub-paragraphs (a) and (b) above if the graduate had been a person mentioned in paragraph 2 of that Schedule.

    (3) For the purposes of paragraph (1)(c) above, a person shall be regarded as having been self supporting out of their earnings for any period or periods during which that person satisfies any of the conditions set out in paragraph 3(2) of Schedule 2.

    (4) For the purposes of paragraph (1) above, the relevant day applicable to a course of higher education shall be–

(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 30th 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 first academic year in which the graduate undertook the course of higher education.

Exempt Courses
     5. —(1) For the purposes of section 1 of the Act, the following classes of course shall be treated as not falling within section 5(3) of the Further and Higher Education (Scotland) Act 2005:–

(a) a course at a higher level in preparation for a higher diploma or certificate;

(b) a course of post-graduate studies (including a higher degree course); and

(c) a course at a higher level in preparation for a qualification from a professional body.

    (2) For the purposes of section 1 of the Act, the following courses shall be treated as not falling within the said section 5(3):–

(a) a first degree course in nursing or midwifery; or

(b) a first degree course in one of the subjects listed in Schedule 3 to these Regulations.

Provision of Information
     6. —(1) Every liable graduate, and any person whom the Scottish Ministers consider may become a liable graduate, shall, as soon as reasonably practicable after being requested to do so, provide the Scottish Ministers with such information as they consider necessary arising out of or in connection with their liability for, or the payment by them of, the graduate endowment.

    (2) Every institution which provides any course of higher education shall, as soon as reasonably practicable after being requested to do so, provide the Scottish Ministers with such information as they consider necessary in respect of liable graduates and persons who may become liable graduates.

    (4) The application form must reach the Scottish Ministers by such date as they may determine from time to time (and different dates may be determined by them in respect of loans for different liable graduates) unless the Scottish Ministers consider that, having regard to the circumstances of the particular case, the time limit should not apply, in which case the application must reach the Scottish Ministers not later than such date as they specify.

    (5) A liable graduate shall demonstrate their eligibility for a loan by providing such evidence as the Scottish Ministers may require.

    (6) The Scottish Ministers may take such steps and make such enquiries as they consider necessary to determine whether the liable graduate is eligible for a loan.

Information
     11. —(1) Every liable graduate applying for a loan under regulation 10 shall as soon as reasonably practicable after requested to do so provide the Scottish Ministers with such information as they consider necessary for the exercise of their functions under these Regulations.

    (2) The Scottish Ministers may at any time require a liable graduate to enter into an agreement to repay a loan by a particular method.

    (3) The Scottish Ministers may at any time request from a liable graduate sight of their valid national identity card, their valid passport issued by the state of which they are a national or their birth certificate.

    (4) The Scottish Ministers may at any time verify with the Department for Work and Pensions the United Kingdom national insurance number that a liable graduate has provided or may check with the Department for Work and Pensions whether the liable graduate has such a number with a view to obtaining it if the liable graduate does.

    (5) Where the Scottish Ministers have requested information or documents under this regulation, they may withhold any payment of a loan until the liable graduate provides what has been requested or provides a satisfactory explanation for not complying with the request.

    (6) Where the Scottish Ministers have requested an agreement as to the method of repayment under this regulation, they may withhold any payment of a loan until the liable graduate provides what has been requested.

Amount of Loan
     12. The amount of any loan shall be the amount of the graduate endowment for which the liable graduate to whom the loan is made is liable.

Purpose of Loan
     13. —(1) The Scottish Ministers shall apply the full amount of any loan made in respect of a liable graduate for the purpose of discharging the liability of that liable graduate to pay the graduate endowment, and shall not pay any part of the loan to the liable graduate or to any other person on their behalf.

    (2) Where a liable graduate has made an application for a loan prior to the due date, the Scottish Ministers shall apply the amount of their loan in accordance with paragraph (1) on the due date.

    (3) Where a liable graduate has made an application for a loan after the due date, the Scottish Ministers shall apply the amount of their loan in accordance with paragraph (1) as soon as reasonably practicable.

    (4) Any loan made in respect of a liable graduate in accordance with these Regulations shall be applied for the purpose referred to in paragraph (1) and for no other purpose.

Interest
     14. —(1) Subject to paragraph (2), loans shall bear interest from the date on which they are applied by the Scottish Ministers in accordance with regulation 13 at the rate which will result in an annual percentage rate of charge determined in accordance with the Consumer Credit (Total Charge for Credit) Regulations 1980[6] equal to the percentage increase between the retail prices all items index published by the Office for National Statistics for the month of March immediately preceding the month in which the loan is applied by the Scottish Ministers in accordance with regulation 13 and that index so published for the previous March.

    (2) If the rate referred to in paragraph (1) exceeds the rate for the time being specified for the purposes of any exemption conferred by virtue of section 16(5)(b) of the Consumer Credit Act 1974[7] loans shall bear interest at the rate so specified.

    (3) Interest shall be calculated on the principal outstanding daily, and shall be added to the principal monthly.

Insolvency
     15. Where after the date of sequestration of a liable graduate's estate, they receive, or are entitled to receive, a loan in accordance with these Regulations–

(a) the sheriff shall not, in fixing an amount under subsection (2) of section 32 of the Bankruptcy (Scotland) Act 1985[8] treat the loan as income of the eligible student;

(b) for the purpose of subsection (6) of that section the loan shall not be treated as estate vesting in, or requiring to be conveyed or delivered to, the eligible student's permanent trustee; and

(c) any debt or liability to which the eligible student is, or may become, subject in respect of the loan shall not be treated as a debt or liability–


(i) for the purposes of the sequestration (or of any offer of composition to the permanent trustee); or

(ii) from which the liable graduate is discharged on the expiry of a period after the date of sequestration, under or by virtue of section 54 or 75(4) of that Act (or on an order being made under paragraph 11 of Schedule 4 to that Act as respects the liable graduate and the permanent trustee).

NICOL STEPHEN
A member of the Scottish Executive

St Andrew's House, Edinburgh
6th March 2007

"Switzerland Agreement" means the Agreement between the European Community and its member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons signed at Luxembourg on 21st June 1999[9] and which came into force on 1st June 2002; and

"the Islands" means the Channel Islands and the Isle of Man.

    (2) For the purposes of this Schedule, an area which–

(a) was previously not part of the European Community or the European Economic Area, but

(b) at any time before or after these Regulations come into force has become part of one or other or both of those areas,

shall be considered to have always been part of the European Community or the European Economic Area, as the case may be.

    (3) Schedule 2 shall have effect for the purposes of determining whether a person is to be treated, for the purposes of this Schedule, as being, or having been, ordinarily resident in a place at, or for, a particular time.

     2. A person who–

(a) is ordinarily resident in Scotland on the relevant day;

(b) has been ordinarily resident in the United Kingdom and the Islands throughout the period of 3 years immediately preceding the relevant day; and

(c) is settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971[10] on the relevant day.

     3. —(1) A person who–

(a) is–


(i) an EEA migrant worker or an EEA self-employed person;

(ii) a Swiss employed person or a Swiss self-employed person;

(iii) an EEA frontier worker or an EEA frontier self-employed person;

(iv) a Swiss frontier worker or a Swiss frontier self-employed person;



(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of 3 years immediately preceding the relevant day; and

(c) subject to sub-paragraph (2), is ordinarily resident in Scotland on the relevant day.

    (2) Sub-paragraph (1)(c) does not apply where the person falls within sub-paragraph (1)(a)(iii) or (iv).

     4. —(1) A person who–

(a) is–


(i) the family member of a person mentioned in paragraph 3(1)(a); or

(ii) is entitled to the payment of an allowance by virtue of Article 12 of Council Regulation (EEC) No. 1612/68 on the freedom of movement of workers[11], as extended by the EEA agreement;



(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of 3 years immediately preceding the relevant day; and

(c) subject to sub-paragraph (2), is ordinarily resident in Scotland on the relevant day.

    (2) Sub-paragraph (1)(c) does not apply where the person is a family member of a person falling within paragraph 3(1)(a)(iii) or (iv).

     5. —(1) A person who–

(a) is settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971;

(b) left the United Kingdom and utilised a right of residence after having been settled in the United Kingdom and, where the person is a national of the United Kingdom, was ordinarily resident in Scotland immediately prior to exercising that right and the Scottish Ministers are satisfied that such residence was not in any sense attributable to, or connected with, any period of residence in Scotland within the 3 years immediately preceding in respect of which any part of its purpose was wholly or mainly that of receiving full-time education;

(c) is ordinarily resident in Scotland on the relevant day;

(d) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of 3 years immediately preceding the relevant day; and

(e) in the case where their ordinary residence referred to in sub-sub-paragraph (d) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately prior to the period of residence referred to in sub-sub-paragraph (d).

    (2) For the purposes of this paragraph, a person has utilised a right of residence if that person–

(a) is–


(i) a United Kingdom national;

(ii) a family member of a United Kingdom national with rights under Article 7 of Directive 2004/38 (or corresponding provisions under the EEA agreement or the Switzerland Agreement); or

(iii) a person who has a right of permanent residence arising under Directive 2004/38; and



(b) either–



(i) has exercised a right under Article 7 of Directive 2004/38 or any equivalent right under the EEA agreement or the Switzerland Agreement in a state other than the United Kingdom; or

(ii) in the case of a person who has a right of permanent residence in the United Kingdom arising under Directive 2004/38, has gone to the state within the territory comprising the European Economic Area and Switzerland of which that person is a national or of which the person in relation to whom that person is a family member is a national.

     6. A person who–

(a)


(i) has applied for refugee status but has as a result of that application been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although the person is considered not to qualify for recognition as a refugee, it is thought right to allow them to enter or remain in the United Kingdom and they have been granted leave to enter or remain accordingly;

(ii) has been ordinarily resident in the United Kingdom and the Islands at all times since that person was first granted such leave to enter or remain; and

(iii) is ordinarily resident in Scotland on the relevant day; or



(b) is the spouse, civil partner or child of a person of the kind described in sub-paragraph (a) and who is ordinarily resident in Scotland on the relevant day.

     7. A person who–

(a) is a non UK EC national or the child of such a national;

(b) is ordinarily resident in Scotland on the relevant day;

(c) has been ordinarily resident in the United Kingdom and the Islands throughout the 3 year period preceding that day; and

(d) in the case where their ordinary residence referred to in paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately prior to the period of residence referred to in paragraph (c).

     8. A person who–

(a) is a non UK EC national or an EU overseas territories national or a family member of either;

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland or the EU overseas territories throughout the period of 3 years immediately preceding the relevant day; and

(c) seeks funding in respect of fees in respect of a full-time course of higher education at an establishment in Scotland.

     9. A person who–

(a) is the child of a Swiss national who is entitled to support in the United Kingdom by virtue of Article (6) of Annex 1 to the Switzerland Agreement;

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of 3 years immediately preceding the relevant day;

(c) is ordinarily resident in Scotland on the relevant day; and

(d) in the case where their ordinary residence referred to in paragraph (b) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately prior to the period of residence referred to in paragraph (b).

(a) Dental Hygiene

(b) Dental Therapy

(c) Podiatry

(d) Dietetics

(e) Occupational Therapy

(f) Orthoptics

(g) Physiotherapy

(h) Radiography (Diagnostic and Therapeutic)

(i) Prosthetics and Orthotics

(j) Speech and Language Therapy

[2] 1980 c.44. Section 73(f) was amended by the Teaching and Higher Education Act 1998 (c.30), section 29(1) and by the Education (Graduate Endowment and Student Support) (Scotland) Act 2001 (asp 6) ("the 2001 Act"), section 3(2). Section 73B was inserted by the Teaching and Higher Education Act 1998, section 29(2) and amended by the 2001 Act, section 3(3) and by the Income Tax (Earnings and Pensions) Act 2003 (c.1), Schedule 6, paragraph 149. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).back

[3] O.J. No. L 158, 30.04.04, p.77.back

[4] 2005 asp 6.back

[5] S.I. 2007/153.back

[6] S.I. 1980/51, amended by S.I. 1999/3177.back

[7] 1974 c.39.back

[8] 1985 c.66; section 32 was amended by the Child Support Act 1991 (c.48), Schedule 5, paragraph 6, the Pensions Act 1995 (c.26), Schedule 3, paragraph 14 and the Welfare Reform and Pensions Act 1999 (c.30) Schedule 2, paragraph 1; and prospectively by the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), sections 17, 18 and 19 and schedule 1.back

[9] Cm. 5639.back

[10] 1971 c.77; section 33(2A) was inserted by paragraph 7 of Schedule 4 to the British Nationality Act 1981 (c.61).back

[11] O.J. No. L 257, 19.10.68, p.2 (O.J./S.E. 1968(II) p.475), amended by Council Regulation (EEC) No. 2434/92 (O.J. No. L 245, 26.8.92, p.1).back

[12] 2005 asp 6.back

 © Crown copyright 2007