23 December 2010

Man Tax

Does the student loan company discrimate between people on the basis of their gender?

The Student Loan Company provides loans for students in order to fund them through college.

Although they do not publish the figures with regard to gender (FoI in the offing), I anticipate that they provide loans on the basis of whether or not someone has a place at college: not on the basis of their gender.

But what about collecting repayment of the loans?

Anecdotal evidence is saying that there is a disparity of repayment based upon gender. Men are paying back loans; women are not paying back loans. I appreciate that the latter, is a sweeping statement; of course, when people (men or women) earn sufficient to pay back their student loans they are doing so. However, there is a pay discrepancy between men and women of, from memory, ten percent. Further, women take time off from work for child rearing. Both of these factors impact upon the ability of women to pay back the student loan.

There would be nothing wrong with this if we were talking about tax: each paying to their respective abilities to pay; the higher earner paying more than the lower earner.

But this isn't a tax. It is a loan. Loans don't look into the personal circumstances of the one in debt.

On the basis of anecdotal evidence, and the terms of these loans, a greater burden is being placed upon one group of people when it comes to paying back student loans. This group of people are defined by their gender, so arguably, the student loan system is discriminatory.

The legislation, section 1(2) Sex Discrimination Act 1975, provides,

"(2)In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if—

(a)on the ground of her sex, he treats her less favourably than he treats or would treat a man, or
[F2(b)he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but—
(i)which puts or would put women at a particular disadvantage when compared with men,
(ii)which puts her at that disadvantage, and
(iii)which he cannot show to be a proportionate means of achieving a legitimate aim.]
"

Which, of course, is read in conjunction with section 2(1) of the Act,

"Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite."

Working through section 1(2) of the Act and assuming that the anecdotal evidence with regard to repayment is correct, s1(2)(b)(i) and s1(2)(b)(ii) are in being breached depending upon s1(2)(b)(iii) of the Act.

Is the student loan system, as implemented at present, a proportionate means of achieving a legitimate aim?

This analysis hasn't covered any case law (due to time constraints) which if covered would give clarity to the situation.

But on the basis of the above, I don't think that the mechanism is a proportionate means of achieving a legitimate aim. The system is a disproportionate means of achieving a legitimate aim; particulalry, since there are other ways in which the funding of students through higher education could be done.

ps The Equality Commission are the people to ask as to whether or not this argument has any substance, and if it does, they are the ones to de-rail the student loan system.

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