Citation and commencement

1. These Regulations may be cited as the Students' Allowances (Scotland) Regulations 1996 and shall come into force on 1st August 1996.

Interpretation

2.-(1) In these Regulations-�

"allowance" means an allowance paid or to be paid under these Regulations;

"EEA Agreement" means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992(2) as adjusted by the Protocol thereto signed at Brussels on 17th March 1993(3);

"EEA State" means a State which is a Contracting Party to the EEA Agreement;

"employed" includes holding any office or any occupation for gain;

"European Economic Area" means the area of the EEA States and includes those States at any time before the EEA Agreement comes into force in relation to them;

"national of a member state of the European Community" means a person who is a national for the purposes of the Community Treaties of any member state of the European Economic Community (including the United Kingdom) as constituted from time to time;

"parent" includes step-parent;

"qualifying day" in relation to a course of education for which an allowance is sought means-�

"refugee" means a person who is recognised by Her Majesty's Government as a refugee within the meaning of the United Nations Convention relating to the Status of Refugees done at Geneva on 28th July 1951(4) as extended by the Protocol thereto which entered into force on 4th October 1967(5);

"relevant date" in relation to a course of education for which an allowance is sought means-�

(2) In these Regulations, except where the context otherwise requires, any reference-�

(a)to a numbered regulation or Schedule is a reference to the regulation or Schedule so numbered in these Regulations; and

(b)in a regulation or Schedule to a numbered paragraph is a reference to the paragraph so numbered in that regulation or Schedule, as the case may be.

Persons eligible for allowances

3.-(1) The Secretary of State may pay an allowance, in accordance with the provisions of section 73(f) of the Education (Scotland) Act 1980 and these Regulations, to or in respect of any person attending a course of education who is a person described in one or more paragraphs of Schedule 1.

(2) Schedule 2 shall have effect as regards determining whether a person is to be treated, for the purposes of Schedule 1, as being, or having been, ordinarily resident in a place at or for a particular time.

Amount of allowances

4.-(1) The amount of an allowance shall be determined by the Secretary of State and, subject to paragraph (2), may include sums in respect of-�

(a)tuition and other fees payable in respect of the holder of the allowance;

(b)travelling expenses necessarily incurred, or to be incurred, by the holder in attending the course of education in respect of which the allowance is awarded;

(c)the maintenance of the holder and of any persons dependent on him during periods of full time study and during vacations;

(d)other expenses incurred, or to be incurred, by the holder in taking advantage of educational facilities.

(2) An allowance payable to or in respect of a person who is eligible for an allowance only by virtue of paragraph 4 of Schedule 1 may include sums only in respect of tuition and other fees payable in respect of that person.

(3) In determining the amount of an allowance, the Secretary of State shall take account of the sums, if any, which, in accordance with principles determined by him from time to time, the holder, the holder's parents and the holder's spouse can reasonably be expected to contribute towards the holder's expenses.

(4) The amount of the determination of an allowance may be revised at any time if the Secretary of State thinks fit having regard to-�

(a)the failure of the holder to comply with the requirements of the allowance;

(b)all the circumstances of the holder or his parents or both as the case may be; or

(c)any error made in determining the amount of, or entitlement to, the allowance.

Conditions and requirements of allowances

5.-(1) The following shall be conditions of payment of every allowance for each academic year:-�

(a)an application in writing shall be received by the Secretary of State by such date as he may determine in respect of that year, and different dates may be determined by him in respect of different courses; and

(b)that application shall include an undertaking by the applicant to repay to the Secretary of State any amount of which the Secretary of State requests repayment following a revisal in terms of regulation 4(4).

(2) The Secretary of State may treat an application received after any date determined for the purposes of paragraph (1)(a) as having been received by that date where he considers that, having regard to the circumstances of the particular case, it should be so treated.

(3) Every allowance shall be held subject to the following requirements:-�

(a)the holder shall attend regularly the course of education in respect of which the allowance is awarded;

(b)the Secretary of State shall be satisfied as to the conduct and progress of the holder;

(c)the holder shall provide the Secretary of State with such information and such documents as he may from time to time require to enable him to exercise his functions under these Regulations; and

(d)the holder shall repay to the Secretary of State any sum in respect of which he has given an undertaking in terms of paragraph (1)(b) and which falls to be repaid following a revisal in terms of regulation 4(4).

Method of payment

6.-(1) The allowance may be paid to the holder or to another person for his behoof, or in part to the holder and in part to the said other person, and any sum in respect of fees payable to an educational institution which is included in the amount of the allowance may be paid on behalf of the holder to the institution.

(2) The allowance may be paid in a single payment or by instalments as the Secretary of State thinks fit, but no payment shall be made before the holder has been accepted for admission to the course of education in respect of which the allowance is awarded.

Revocations and saving

7.-(1) Subject to paragraphs (2) and (3), the Regulations specified in column (1) of Schedule 3 are hereby revoked to the extent set out in column (3) thereof.

(2) The Regulations revoked by Schedule 3 shall continue to apply in all respects as regards allowances awarded under those Regulations.

(3) The provisions of paragraph (2) are without prejudice to the general operation of sections 16 and 17 of the Interpretation Act 1978(6).

Regulation 3(1)

SCHEDULE 1PERSONS ELIGIBLE FOR ALLOWANCES

1. A person who

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

(b)has been ordinarily resident in the British Islands throughout the period of 3 years immediately preceding the relevant date.

2. A person who-�

(a)is entitled to equality of treatment in relation to the payment of an allowance for the course in respect of which he seeks the allowance by virtue of Article 7 or 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community (which was extended to apply to the whole European Economic Area by the EEA Agreement)(7);

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

(c)(i)is ordinarily resident in Scotland on the qualifying date; or

(ii)seeks an allowance in respect of a course of education at an establishment in Scotland.

3. A person who-�

(a)at the date of the Secretary of State receiving his application for an allowance, is-�

(i)a refugee who has been ordinarily resident in the British Islands at all times since he was first recognised as a refugee; or

(ii)the spouse, child or step-child of such a refugee; and

(b)(i)is ordinarily resident in Scotland on the qualifying date; or

(ii)seeks an allowance in respect of a course of education at an establishment in Scotland.

4. A person who-�

(a)is a national, or the child or step-child of a national, of a member state of the European Community;

(b)has been ordinarily resident in the European Economic Area throughout the period of 3 years immediately preceding the relevant date;

(c)has not been ordinarily resident in the British Islands throughout that 3 year period; and

(d)seeks an allowance in respect of a course of education at an establishment in Scotland.

5. A person to whom, or in respect of whom, an allowance has been paid in accordance with these Regulations, or with the Students' Allowances (Scotland) Regulations 1991(8), within the year immediately preceding the relevant date.

Regulation 3(2)

SCHEDULE 2ORDINARY RESIDENCE

1. For the purposes of paragraph 1(a) of Schedule 1-�

(a)a person shall be treated as being ordinarily resident in Scotland on the qualifying day if the Secretary of State is satisfied that he was not actually so resident only because he, his spouse or his parent was for the time being-�

(i)employed outside Scotland; or

(ii)attending a course of study or undertaking postgraduate research outside Scotland; and

(b)a person shall not be treated as being ordinarily resident in Scotland on the qualifying day if the Secretary of State is satisfied that his residence there on that day is in any sense attributable to, or connected with, any period of residence in Scotland within 3 years immediately preceding the relevant date as respects any part of which its purpose was wholly or mainly that of receiving full-time education.

2.-(1) Sub-paragraphs (2) and (3) below shall apply in determining, for the purposes of paragraphs 1(b), 2(b) and 4(b) and (c) of Schedule 1, whether a person is to be treated as having been or not having been ordinarily resident for the specified period in either the British Islands or the European Economic Area (hereinafter referred to in this paragraph as "the relevant area").

(2) A person shall not be treated as having been ordinarily resident in the relevant area for the specified period if the Secretary of State is satisfied that he was resident therein for any part of that period wholly or mainly for the purpose of receiving full-time education.

(3) A person shall be treated as having been ordinarily resident in the relevant area for the specified period if the Secretary of State is satisfied that-�

(a)the person was born and has spent the greater part of his life in the relevant area and that-�

(i)his parents or either of them have been ordinarily resident in the relevant area throughout the specified period and he himself is not an independent student; or

(ii)he has been ordinarily resident in the relevant area for at least 1 year of the specified period and no part of that period of residence was wholly or mainly for the purpose of receiving full-time education; or

(b)the person was not actually ordinarily resident in the relevant area for the specified period only because he, his spouse or his parent was for the time being-�

(i)employed outside the relevant area; or

(ii)attending a course of study or undertaking postgraduate research outside the relevant area.

3.-(1) In paragraph 2(3)(a)(i), "an independent student" means a person who prior to the relevant date has-�

(a)attained the age of 25 years;

(b)been married for at least 2 years;

(c)no parent living; or

(d)supported himself out of his earnings for periods aggregating not less than 3 years.

(2) A person shall be regarded as having supported himself out of his earnings for any period or periods during which he-�

(a)was in receipt of training in pursuance of programmes and schemes operated from time to time by the Manpower Services Commission, the Training Commission, the Secretary of State, Scottish Enterprise or Highlands and Islands Enterprise;

(b)before 1st July 1992 was in receipt of unemployment benefit under section 14(1)(a) of the Social Security Act 1975(9);

(c)on or after 1st July 1992 was in receipt of unemployment benefit under section 25(1) of and Part I of Schedule 4 to the Social Security Contributions and Benefits Act 1992(10);

(d)before 24th November 1980(11), was for the purposes of section 5 of the Supplementary Benefits Act 1976(12) registered for employment;

(e)on or after 24th November 1980 but before 18th October 1982(13), was for the purposes of section 5 of the said Act of 1976 available for employment and, where applicable, registered for employment;

(f)on or after 18th October 1982 but before 11th April 1988(14), was for the purposes of section 5(1) of the said Act of 1976 available for employment and, where applicable, registered for employment;

(g)on or after 1st April 1988 but before 9th October 1989(15) was for the purposes of section 20(3)(d)(i) and (4) of the Social Security Act 1986(16) available for employment and, where applicable, also registered for employment;

(h)on or after 9th October 1989 but before 1st July 1992(17), was for the purposes of section 20(3)(d)(i) and (4) of the Social Security Act 1986 available for employment and, where applicable, also registered for employment;

(i)on or after 1st July 1992 was, for the purposes of section 124(1)(d)(i) and (3) of the Social Security Contributions and Benefits Act 1992, available for, and actively seeking, employment and, where applicable, also registered for employment;

(j)before 1st July 1992(18) received sickness benefit, invalidity pension, maternity allowance or severe disablement allowance under section 14(1)(b), 15(1)(b), 22(1) or 36(1) of the Social Security Act 1975(19) or statutory sick pay under Part I of the Social Security and Housing Benefits Act 1982(20) or statutory maternity pay under Part V of the Social Security Act 1986;

(k)on or after 1st July 1992 received maternity allowance or severe disability allowance under section 35(1) or 68(1) of the Social Security Contributions and Benefits Act 1992 or statutory sickness benefit under Part XI of or statutory maternity allowance under Part XII of the said Act of 1992;

(l)on or after 1st July 1992 but before 13th April 1995(21) received sickness benefit or invalidity pension under section 31(1) or 33(1) of the said Act of 1992;

(m)on or after 13th April 1995 received incapacity benefit under section 30A(1) of the said Act of 1992(22);

(n)held a Scottish Studentship or comparable award; or

(o)had the care of a person under the age of 18 years who was dependent on him;

and any reference in this sub-paragraph to a provision contained in the Social Security Contributions and Benefits Act 1992 is a reference to that provision as from time to time in force.

Regulation 7

SCHEDULE 3REVOCATIONS

Explanatory Note

(This note is not part of the Regulations)

These Regulations consolidate, with only minor and drafting amendments, the Students' Allowances (Scotland) Regulations 1991 ("the 1991 Regulations") and subsequent amending instruments. They enable the Secretary of State to pay allowances to persons attending courses of education who fulfil certain criteria as to eligibility and they prescribe the conditions and requirements subject to which allowances may be paid.

The eligibility criteria are detailed in Schedule 1, whilst Schedule 2 makes provision as to when a person is to be treated as ordinarily resident in a place for or at a particular time.

Regulation 7 revokes the 1991 Regulations but provides for these to continue to apply as regards allowances awarded before their revocation.