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Cite as: [2002] EWHC 1371 (Admin)

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Neutral Citation Number: [2002] EWHC 1371 (Admin)
Case No: CO/1236/2002


Royal Courts of Justice
London, WC2A 2LL
8 July 2002

B e f o r e :



and –



(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)


Mr. John Walsh (instructed by Straker Holford for the Claimant)
Ms. Harini Iyengar (instructed by Ms. K. Nicholson for the Defendant)
Mr. Martin Chamberlain (instructed by The Treasury Solicitor for the Interested Party)



Crown Copyright ©

    Silber J:


  1. Ms. Abimbola Elizabeth Theophilus (“the claimant”) seeks to judicially review a decision of the London Borough of Lewisham (“Lewisham”) communicated to the claimant on 10 December 2001 that “Central Government funding through the Education (Student Support) Regulations is not available” for her LL. B. course at Griffith College in Dublin. Sir Oliver Popplewell sitting as a Deputy High Court Judge gave the claimant permission to make this application, which then included a claim to enforce an alleged legitimate expectation that she would receive funding as a result of a representation made to her by Lewisham. The claimant now also seeks to claim that Rule 5(4) of the Education (Student Support) Regulations 2001 (“the 2001 Regulations”) contravenes Article 49 of the EC Treaty but she needs permission both to amend her claim form and to pursue that claim.
  2. The claimant is a citizen of the United Kingdom, who resides within the local authority area of Lewisham. In early 2001, the claimant first approached the Student Pupil Support Department of Lewisham to enquire whether she would receive student support if she studied law abroad. The claimant wished to study law abroad rather than in England because she had recently been through a stressful and traumatic episode in her personal life and she wished to make a fresh start. Her intention was to obtain a Bachelor of Laws degree and then to practise as a Barrister in England.
  3. The claimant was initially told by Lewisham that she would receive student support provided she studied anywhere in the European Union, but she chose to study at Griffith College in Dublin because its courses are accepted for qualification purposes by the Bar Council of England and Wales. In about April 2001, she made a formal application for student support to study law at Griffith College. By a letter dated 10 May 2001, Lewisham informed the claimant that she would be entitled to student support. Initially the claimant planned to study Business and Law, but she later decided to study Law as a single subject instead. Lewisham was aware of the change in her course and it agreed that she would be eligible for student support for this law course.
  4. Having been told that she would receive student support, the claimant duly accepted a place on the course at Griffith College and she commenced her studies there on 24 September 2001. Before the claimant started the course, a financial assessment of higher education student support was sent to the claimant confirming the level of fees that would be paid on her behalf to Griffith College and the amount of student support that she herself could be paid. The claimant duly received in October 2001, the first of the three instalments for her student loan for the academic year, which commenced on 24 September 2001. The claimant later received a further financial assessment for assistance form, again confirming that college fees and student loans would be paid to the claimant, but it also included additionally a grant for her young dependent daughter.
  5. In late October and early November 2001, the claimant became increasingly concerned that her college fees had not been paid and she telephoned Lewisham’s Student Pupil Support Office on several occasions to enquire on the progress of the payment for those fees. The claimant was told that there were various technical problems in processing information, but that there was nothing for her to worry about. After previously warning the claimant on the telephone, on 10 December 2001, Lewisham wrote to the claimant informing her that it had made an error and that she was not entitled to student support at all, whether in the form of fees or loans. It is that decision that the claimant is seeking to judicially review in these proceedings. The claimant has not received any student support but to her credit, she has struggled by using her credit cards to complete the first year of her course at Griffith College. She hopes by succeeding on this application to be able to complete her course, which she started in the genuinely held expectation that she would be funded for it.
  6. The Issues

  7. In support of the claim to quash Lewisham’s decision not to pay her student support, Mr. Walsh on the claimant’s behalf, makes two submissions, which are, in his words, that:-
  8. “(i) Lewisham acted unlawfully in (a) not abiding by legitimate expectation she had to be paid an amount of money equivalent to what she would be entitled to under the Education (Student Support) Regulations 2001 (“the 2001 Regulations”) in the form of support towards payment of her tuition fees, dependant’s allowance and student loan and (b) not providing the claimant with this sum in the exercise of their discretionary powers under the Local Government Act 2000 section 2 and the Local Government Act 1972 section 137 to make such a payment in view of the manifest unfairness to the claimant because of the prior incorrect advice given by Lewisham that the claimant was entitled to support under the 2001 Regulations”. (Claim 1 - Legitimate expectation); and

    (ii) “The 2001 Regulations insofar as they deny the claimant support that the claimant would be entitled to, were she to pursue her course of studies within the United Kingdom should be disapplied as they restrict the claimant’s right to enjoy the freedom to receive cross-frontier services pursuant to Article 49 of the EC Treaty” (Claim 2 - Article 49).

  9. The second claim was introduced into the proceedings by the claimant as a proposed amendment on 20 June 2002, just before the present hearing started. No objection has been made to the amendment by Lewisham or by the Secretary of State for Education and Skills (“the Secretary of State”), who has been joined as an Interested Party; so I grant permission to make the amendment. Both Lewisham and the Secretary of State contend, however, that permission should not be granted to pursue the second claim and I will consider that issue when I analyse the second claim.
  10. Claim 1- Legitimate expectation

  11. The claimant contends that by reason of the statements made in documents sent to her by Lewisham, she had a legitimate expectation that she would receive financial assistance from Lewisham. This claim is disputed by Lewisham, which contends that it did not make a statement or representation to the claimant that it would provide her with student support and that in any event, there has been no abuse of power by it for which judicial review would be the appropriate remedy. It is also submitted by Lewisham that there could be no claim for legitimate expectation of student support as it did not have the power to provide the claimant with student support, but Mr. Walsh contends that Lewisham did have that power under section 2(1) of the Local Government Act 2000 (“the 2000 Act”); that submission is disputed by Lewisham. The Secretary of State was not directly interested in or affected by claim 1 but Mr. Chamberlain, her counsel, has made a number of submissions almost as an amicus curiae on this issue, which were supportive of the claimant’s case.
  12. Therefore there are four sub-issues to be considered, namely first whether Lewisham made a statement that was sufficiently clear that it would pay her student support, second, whether Lewisham had the power to provide the claimant with student support, third, whether Lewisham acted unlawfully in relation to that commitment in the letter of 10 December 2001, and finally, if she is successful on the previously mentioned issues, what remedy should be granted to the claimant.
  13. (i) Was a sufficiently clear statement or representation made to the claimant relating to the provision of student support for her?

  14. The claimant contends first that a representation was made that student support would be provided and that Lewisham would arrange it and second that this representation is to be found in the correspondence to which I now turn. On 11 April 2001, Lewisham referred to the claimant’s application for student support when its student support Officer wrote to the claimant stating, with my italicised emphasis added, that “before I may determine whether it will be possible for [Lewisham] to offer you financial assistance, you will need to submit the following information and/or documentation”.
  15. On 10 May 2001, Lewisham wrote to the claimant and told her again with my italicised emphasis added that “Lewisham Education is satisfied that that you are eligible to be considered for student support for…. studies at Griffith College. I enclose a formal offer letter to that effect”
  16. On 13 September 2001, Lewisham wrote again to the claimant enclosing a “manual financial notification setting out the non means tested elements of student support”. It stated that the fees would be paid on her behalf of £1,075.00 and that a loan would be made available to her of £4,755.00. The claimant was also told in an accompanying letter to specify the amount of the loan required and to send that information to the Student Loans Company as soon as possible. The claimant then moved to Ireland and duly started her course later in September 2001.
  17. On 19 October 2001, Lewisham explained in a letter to the claimant that it had now “reassessed your student support entitlement to include a dependant’s allowance in respect of your daughter”. A new support notice was sent under cover of that letter showing that the claimant would receive not merely these sums referred to in the previous notice, but also a dependent grant in respect of the daughter of £2,925.00; the claimant was told to write on the reverse of the notice the amount of the loan that she wished to take up. She had previously been asked on 19 September 2001 for information relating to her daughter who would be with her. While the claimant was studying on her course at Griffith College, she received oral notification followed by the letter of 10 December 2001, which, as I have explained, terminated her student support, even though she was in the middle of the first year of her course.
  18. Lewisham contend that for there to be a legitimate expectation “it is necessary that the ruling or statement relied upon should be clear, unambiguous and devoid of relevant qualification” (per Bingham LJ in R v. IRC ex parte MFK Underwriting [1990] 1 WLR 1545 at 1569G). Mr. Walsh does not dispute this contention or Lewisham’s further contention that, as Bingham LJ has also explained “in assessing the meaning, weight and effect reasonably to be given to statements of the [representor] the factual context including the position of the [representor] itself is all important” (ibid at page 1569B).
  19. Lewisham contend that they did not make any such statements to the effect that it would be paying financial assistance to the claimant. I am unable to accept that submission because the first relevant letter from Lewisham of 11 April 2001 stated that they “may determine whether it will be possible for London Borough of Lewisham to offer you financial assistance..”. That letter indicates clearly that Lewisham was to be the sole potential offering and paying party. The next letter of 10 May 2001 states that the only reason why a full offer was not then made was because the term dates for that course had not been provided by Griffith College. There is nothing in that letter or in the subsequent letter of 13 September 2001 to indicate that Lewisham would not be the paying party as had been envisaged in the letter of 11 April 2001. Indeed, as I have explained, the letter of 13 September 2001 actually gives details of financial support for the claimant.
  20. The clear implication from those letters of 11 April and 10 May 2001 was that once the dates were supplied, a formal offer of financial support would be made to the claimant and in the light of the letter of 11 April 2000, the clear and unambiguous implication would be that this offer of financial support would be from Lewisham. The later letter says that financial assistance would be forthcoming so that the position was that Lewisham represented that it would give financial assistance to the claimant. The subsequent letter of 13 September 2001 sets out details of payment and fortifies my view that it had been represented financial assistance would be available from Lewisham. The mere fact that there is subsequent reference to Student Support Regulations in correspondence does not negative that point, as there is no cogent evidence that it would have affected the offer or, if it did, that the claimant knew or ought to have known of this fact. By the same token, the letter of 19 October 2001 does not indicate that Lewisham would not be the paying party but in any event, by that time, the claimant had moved to Ireland and had already started her course. I have no doubt that she took those steps in reliance on the statements by Lewisham providing student support. It is clear from the forms that the claimant had completed in order to obtain assistance that she had no other assets.
  21. (ii) Did Lewisham have the power to make payment?

  22. It is common ground that first the claim based on legitimate expectation must fail if Lewisham did not have the power to provide the claimant with student support and second that Lewisham is not empowered to pay student support under the 2001 Regulations. The claimant, however, contends that Lewisham did have power to provide her with student support pursuant to the provisions of section (2)(1)(a) of the 2000 Act. The relevant provisions of section 2 state that:-
  23. “(1) Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects-
    (a) the promotion or improvement of the economic well-being of their area;
    (b) the promotion or improvement of the social well-being of their area, and
    (c) the promotion or improvement of the environmental well-being of their area.
    (2) The power under subsection (1) may be exercised in relation to or for the benefit of-
    (a) the whole or any part of a local authority’s area, or
    (b) all or any persons resident or present in a local authority’s area.
    (4) The power under subsection (1) includes power for a local authority to-
    (a) incur expenditure,
    (b) give financial assistance to any person,
    (c) enter into arrangements or agreements with any person,
    (d) co-operate with, or facilitate or co-ordinate the activities of, any person,
    (e) exercise on behalf of any person any functions of that person, and
    (5) The power under subsection (1) includes power for a local authority to do anything in relation to, or for the benefit of, any person or area situated outside their area if they consider that it is likely to achieve any one or more of the objects in that subsection.
    (6) Nothing in subsection (4) or (5) affects the generality of the power under subsection (1)”.

  24. In support of his contention that Lewisham had power to provide student support under section 2(1) of the 2000 Act, Mr. Walsh for the claimant places emphasis on sub-section 2(2), as the claimant was resident in Lewisham to show that the power in that section can be used for her benefit. He also points to section 2(5) which enables Lewisham to give benefit for the claimant outside the area “if they considered that it is likely to achieve any one or more of the objects” in sub-section (1) and so he contends that Lewisham was empowered under section 2 to provide student support to the claimant. Sub-section (4) also enables Lewisham to give financial assistance to an individual. Thus, I agree with Mr. Walsh that sub-sections 2(4) and (5) give section 2(1) of the 2000 Act a much wider ambit than would appear from only reading section 2(1) of the 2000 Act.
  25. I was concerned as to whether section 2 gave the Council a free-standing power to pay student support, which was independent of and not complementary to other legislation and I asked counsel to see if they could derive any assistance from anything said in Parliamentary debates about the purpose and effect of section 2(1) but they were unable to find anything of assistance. The Explanatory Notes to the 2000 Act provide some useful material and as Lord Hope stated in R v. A [2002] 1 AC 43, 79 [paragraph 82], “it is legitimate to refer for the purposes of clarification” to these notes when construing legislation. Paragraph 15 of the Explanatory Notes states, with my italicised emphasis added, that:
  26. “Together, these sections allow local authorities to undertake a wide range of activities for the benefit of their local area and to improve the quality of life of local residents, businesses and those who commute to or visit the area. This is intended to clear up much of the uncertainty which currently exists about what authorities can do. Sections 2 and 3 allow authorities to take any action, unless it is subject to statutory prohibitions, restrictions or limitations specifically set out in legislation. The intention is to broaden the scope for local authority action while reducing the scope for challenge on the grounds that local authorities lack specific powers”.
  27. Thus, it is said by Mr. Walsh and Mr. Chamberlain that this passage confirms that the power of this legislation is to confer very broad and general powers upon local authorities to be able to respond to the needs of local residents and businesses as also is shown in certain paragraphs in the Guidance issued by the Secretary of State, which is entitled “Power to Improve or Promote Economic, Social, or Environmental Well-Being”. Paragraph 7 of this states that “the new power is wide ranging and enables the local authorities to improve the quality of life, opportunity and health of their local communities”, while in Paragraph 10, it is stated that :-
  28. “the breadth of the power is such that councils can regard it as a “power of first resort”. Rather than searching for a specific power elsewhere in statute in order to take a particular action, councils can instead look to the well-being power in the first instance …”

  29. In R (J) v. London Borough of Enfield [2002] EWHC 432 (Admin), Elias J used these guidance notes and the statement of Lord Hope to reach a conclusion that the power conferred by section 2 was “capable of extending to the grant of financial assistance for acquiring accommodation”(paragraph 53). I respectfully agree with Elias J. No cogent reason was put forward by Ms. Iyengar on behalf of Lewisham to show why a different decision from that arrived at in the Enfield case should be reached in the present case in respect of financial assistance for the claimant and her daughter while she was studying at Griffith College. Furthermore, in any event, the extended meaning given to section 2(1)(a) by other parts of section 2 of the 2000 Act is such that I consider that it would cover a loan for student fees and student support as well.
  30. In other words, Lewisham is entitled under section 2(1) of the 2000 Act, subject to the section 3 point raised in the next paragraph, to give financial assistance to any person resident in Lewisham (s2(2)(b)) and 2(4)(b) of the 2000 Act) if they consider that it is likely to achieve the object of promoting or improving the economic or social well-being of any resident of Lewisham (s2(5), s2(1)(a) and (b) and s2(2)(g) of the 2000 Act). This would include giving student assistance to the claimant.
  31. Ms. Iyengar submitted that Lewisham’s powers under section 2(1) were limited by section 3(1) of the 2000 Act which states that section 2(1) powers do “not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made)”. Elias J also had to consider this provision in the Enfield case and he explained [57] in relation to section 3 that:-
  32. “it is drafted in very broad terms which provide a source of power enabling authorities to do many things which they could not hitherto have done. In my view, a “prohibition, restriction or limitation” is one which will almost always be found in an express legislature provision. I do not discount the possibility that such might arise by necessary implication, but I thought that that would be very rare”.

  33. I respectfully agree and it will be recalled that as I explained in paragraph 9 above, paragraph 15 of the Explanatory Notes refers with my italicised emphasis added in relation to section 3 refers to “statutory prohibitions, restrictions or limitations specifically set out in legislation”. Lewisham contends that there is a “restriction or limitation” in this case as The Teaching and Higher Education Act 1998 (“the 1998 Act”) contains provisions enabling the Secretary of State to transfer or delegate functions relating to student support to a Local Education Authority, who would then have to comply with any directions given by the Secretary of State in exercise of their functions (sections 22 and 23). No such power has been delegated to Lewisham but it is said that these provisions in the 1998 Act amounts to a “prohibition, restriction or limitation” of the kind envisaged by section 3 of the 2000 Act on the powers of Lewisham to invoke section 2(1) for providing student support to the claimant.
  34. I am unable to agree as the powers under the 1998 Act come from a different financing regime for which the Secretary of State, and not Lewisham, is responsible. I cannot discover any suggestion in the 1998 Act that it is an exclusive and comprehensive form of funding for students so as to limit or restrict the funding powers of Lewisham. In any event, I would have difficulty in finding that the 1998 Act contained a “prohibition, restriction or limitation” affecting the subsequent 2000 Act especially as there is no reference in the 1998 Act, whether by later amendment or otherwise, to the 2000 Act. In addition, as I have already explained, section 2 of the 2000 Act is a free-standing and separate source of power given to local authorities such as Lewisham. Thus, I conclude that Lewisham did have power to give student support to the claimant pursuant to section 2(1) of the 2000 Act.
  35. (iii) Did Lewisham act unlawfully in relation to its commitment?

  36. It is clear that Lewisham did not invoke its powers under section 2(1) of the 2000 Act for providing funding for the claimant. As Schiemann LJ explained in giving the judgment of the Court of Appeal in R (Bibi) v. Newham London Borough Council [2002] 1 WLR 237, 248 [30] “on any view, if an authority without even considering the fact that it is in breach of a promise which has given rise to a legitimate expectation that it will be honoured, makes a decision to adopt a course of action at variance with the promise then the authority is abusing its powers”. The evidence adduced by Lewisham indicates that this is the position in this case, as there is nothing to indicate that it considered the promise. Lewisham clearly did not even appreciate the powers that it had under those provisions and so it did not consider them. In the light of my conclusions about the representations made, it follows that Lewisham acted unlawfully, especially as the claimant relied on Lewisham’s representations.
  37. (iv) What remedy should be given to the claimant?

  38. In R (Bibi) v. Newham London Borough Council [2002] 1 WLR 237, Schiemann LJ giving the judgment of the Court of Appeal specified the conditions that have to be satisfied, namely that the court should intervene (page 244 [19]):-
  39. “in all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to that commitment; the third is what the court should do”.
  40. At the hearing, I deferred hearing submissions on the relief that should be given to the claimant until, as has turned out to be the case, she was successful on the first claim. So I await those submissions after handing down judgment if convenient from counsel for the parties interested in that claim, namely the claimant and for Lewisham, on, in particular, whether I should follow the guidance of the Court of Appeal Bibi v. Newham LBC [2002] 1 WLR 237 in which Schiemann LJ giving the judgment of the Court of Appeal said (248 D) that:-
  41. “the court, even when it finds that the applicant has a legitimate expectation of some benefit, will not order the authority to honour its promise, where to do so would be to assume the powers of the executive. Once the court has established such an abuse, it may ask the decision-maker to take the legitimate expectation properly to account in the decision-making process”.
  42. In Bibi’s case, remission to the decision-maker was the course adopted by the Court of Appeal [69]. This might be the appropriate course for the claimant in this case but I await submissions. If the matter is remitted to Lewisham, it would be expected to reach a speedy decision as the claimant’s second year course starts soon and it might appear appropriate in those circumstances for me to give the claimant liberty to apply. Nevertheless, Lewisham might consider that the proper course for them to adopt on receiving this judgment is to agree to pay for the claimant’s future student support, especially as she has now completed one year of her degree course.
  43. Claim 2 – Article 49

    The claimant’s submissions

  44. The claimant contends that the court should disapply the 2001 Regulations insofar as they deny the claimant support that the claimant would have been entitled to, were she to pursue her course of studies within the United Kingdom. The reason is that the Regulations restrict the claimant’s right to enjoy the freedom to receive cross-frontier services in the form of student support in breach of Article 49 of the EC Treaty. Mr. Walsh develops this point by saying that the claimant is a citizen of the EEA, who is in receipt of services in another member state and that the restrictions on both the provision and the receipt of services across frontiers are prohibited by Article 49 (ex Article 59) of the EC Treaty, which provides that:
  45. “Within the framework of the provision set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in State of the Community other than that of the person for whom the services are intended”.
  46. The Secretary of State disputes this second claim and Mr. Chamberlain on her behalf contends that permission to pursue this claim is required but that it should not be given. Lewisham support the Secretary of State, although it made no separate submissions probably because this dispute did not affect it relating as it does to the Regulations for which the Secretary of State alone is responsible financially.
  47. There are a number of background matters that are agreed by the parties and which I must now record. It is common ground between them first, that Article 49 has direct effect (Case 33/74 Van Binsbergen [1974] ECR 1299), second, that Article 49 embraces the freedom to receive services (Case 118/75 Watson [1976] ECR 1185) and third that the provision of student support (at least so far as tuition fees are concerned) comes within the material scope of the Article 49 (Case 197/86 Brown [1988] ECR 3205).. The House of Lords has explained that is the duty of United Kingdom courts “to override any rule of national law found to be in conflict with any directly enforceable rule of community life” (per Lord Bridge of Harwich in R v. Secretary of State for Transport ex parte Factortame (No. 2) [1991] 1 AC 603, 659). My task is to see if, as the claimant contends, Article 49 overrides the relevant provisions in the Regulations, to which I now turn, in order to show how they prevent the claimant from obtaining assistance for her course at Griffith College.
  48. The Secretary of State contends that the 2001 Regulations provide the conditions that have to be satisfied in relation to a course before a student can obtain support while attending such a course. Griffith College is a private institution and so a student attending its course can only obtain assistance if the teaching and supervision, which comprise the course was provided by a United Kingdom institution. No support is however payable to the claimant under the Regulations because of Regulation 5(4) as her course at that college is not provided by an educational institution in the United Kingdom. It is of crucial importance that although Nottingham Trent University validates the relevant law course in Griffith College, it does not provide in the words of Regulation 5(4) the “teaching and supervision which comprise the course”. Thus the Secretary of State cannot provide student support to the claimant for her course at Griffith College under the 2001 Regulations.
  49. It is Regulation 5(4), which the claimant contends should be disapplied in order to obtain compliance with Article 49 and to ensure that the claimant receives student support. To show the impact and significance of Regulation 5 (4), it is now necessary to set out its terms and those of some of the other relevant Regulations, which provide that:-
  50. “4. Eligible students. (1) Subject to and in accordance with these Regulations a person shall be eligible for support in connection with his attendance at a designated course if he is a person mentioned in Schedule 1 ….
    5. Designated courses. (1) A course shall be designated for the purposes of section 22(1) of the Act and regulation if it is-
    (a) mentioned in Schedule 2;
    (b) a full-time course,…;
    (c) of at least one academic year’s duration; and
    (d) wholly provided by an educational institution or institutions in the United Kingdom which are maintained or assisted by recurrent grants out of public funds or is provided by such an institution or institutions outside the United Kingdom.
    (4) For the purposes of these Regulations a course is provided by an institution if it provides the teaching and supervision which comprise the course, whether it has entered an agreement with the student to provide the course”.

  51. Mr. Walsh contends that the interpretation of Regulation 5(1) which is advanced by the Secretary of State, relying on the definition in Regulation 5(4), restricts the freedom of the claimant to receive services in another Member State. He submits that this restriction would not apply were she to pursue her course of studies in the United Kingdom.
  52. He points out that the effect of Article 49 is far-reaching and that it affects rules which make the provision of services more difficult. Thus, in case C-158/96 Kohll [1998] ECR1 1931, the Court of Justice stated that Article 49:-
  53. “… precludes the application of any national rules which have the effect of making the provision of services purely between member states more difficult than the provision of services purely within one Member State” (para. 33).

    Mr. Walsh explains that it is also established law that:-

    “Article 59 [now 49] requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of a restriction, even if applied without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services” Case C-76/90 Sager (para. 12).
  54. Mr. Walsh submits that the failure to provide the claimant with student support for her course at Griffith College constitutes an unlawful restriction on her freedom to receive services, given that such support would be provided to her if she studied within the United Kingdom. So he says that Regulation 5(1) should be construed so as to ensure compliance with Article 49.
  55. The Secretary of State’s submissions

  56. Mr. Chamberlain for the Secretary of State accepts that as a consequence of the authorities to which I have referred, Member States are prohibited from discriminating between their own nationals and those of other EU Member States in respect of funding for tuition fees.
  57. The principle prohibiting discrimination in respect of student funding on grounds of nationality has two important consequences. First, a national of any EU member state, who gains a place at a university in the United Kingdom must be offered funding for tuition fees by the United Kingdom Government on the same basis as funding is made available to United Kingdom nationals. Second, a United Kingdom national who gains a place at a university in another member state of the EU must be offered funding for tuition fees by the Government of that state on the same basis as funding is made available at that university to nationals of that state.
  58. The result is that courses undertaken by EU nationals at universities in the United Kingdom are subject to United Kingdom funding rules, regardless of the nationality of the student. With certain exceptions relating principally to the European University Institute, the effect of Regulation 5(1) is that the United Kingdom Government does not fund courses at universities outside the United Kingdom, unless the course is being provided in conjunction with a publicly funded educational institution in the United Kingdom, which significantly must provide the “teaching and supervision which comprise the course” (Regulation 5(1)(d) and 5(4)).
  59. The thrust of the claimant’s case is that Article 49 precludes the application by a Member State of any rule, which makes it more difficult for nationals of that State to receive services abroad than at home. Mr. Chamberlain disputes the claimant’s contention that Regulation 5(1) read with Regulation 5(4) is such a rule because it deprives her of funding for her course in Ireland when “it would have been provided to her if she studied within the United Kingdom” (Claimant’s skeleton argument, para. 11).
  60. Conclusions on Claim 2

  61. I cannot accept that argument of the claimant for at least three reasons. First, even if Griffith College was in England, the claimant would not have been entitled to funding under the Regulations as Regulation 5(1)(d) precludes funding for courses at private institution, which are not provided by the United Kingdom institution which provides “the teaching and supervision which comprise the course”. This means that the claimant is not entitled to assistance at Griffith College wherever it was situated, as I have explained in paragraph 33 above. In essence, Griffith College does not provide a designated course and so its precise location is irrelevant. That answers the complaint of the claimant to which I have just referred. It also means that permission must be refused.
  62. Second, there is no evidence of any discrimination or impediment imposed by the Secretary of State of the kind envisaged by Article 49 on the provision of student support to the claimant. It must not be forgotten that that, as the European Court has stated that the effect of Article 49 is to “abolish all discrimination against the person providing the service by reason of his nationality or the fact he is established in a member state other than that in which the service is to be provided” (Van Binsbergen (supra) para 25).
  63. As I have already explained, the provision of student support, at least in the form of fees falls within that provision with the result that the claim must fail as there is no discrimination against the claimant on any provision of the Regulations by reason of her nationality or the place where she is to receive the services. In essence the Regulations do not permit or cause such discrimination. Thus there is no arguable case for a breach of Article 49 and so permission must be refused. Third, the claimant’s complaint on closer analysis is about the very principle of limited funding to courses provided at least in part, by United Kingdom institutions rather than about the interpretation of the word “provided”. The claimant’s complaint is about the policy behind Regulation 5 but that policy is not based on any form of discrimination.
  64. The unavailability of funding from the United Kingdom Government for a course in Ireland does not, of itself, make it more difficult for an United Kingdom national to receive educational services in Ireland than in the United Kingdom as that funding might be available from the Irish authorities. The existence of any difficulty for the claimant would also depend on the relevant Irish rules for receiving funding in respect of courses at Irish institutions. The Irish authorities are subject to Article 49 and so are no more permitted than is the United Kingdom Government to deny funding to any student doing a course in Ireland on the ground of his or her nationality. In the present case, there is no evidence that the claimant has investigated whether funding is available to her from the Irish authorities. In any event, if a comparison of the relevant United Kingdom rules with those applicable in Ireland meant that the claimant would receive student support here, but not in Ireland - about which there is no evidence whatsoever - that would be because of the differences in funding arrangements as between different member states in an area which, as I understand it, has yet to undergo Community harmonisation. Significantly for this claim and fatally for the claimant, the lack of student support for the claimant is not because of any rule of national law which infringes Article 49.
  65. During his submissions, Mr. Walsh said that the claimant is suffering hardship and that indicates that the Secretary of State’s policy is restrictive. I cannot accept that point, although I totally sympathise with the claimant in her predicament as she was misled by Lewisham into thinking that she would receive student assistance. Lewisham’s conduct merits serious criticism but a breach of Article 49 has not been established.
  66. Conclusion

  67. The second claim under Article 49 requires permission from the court, but the arguments in support of this claim fail to reach the prescribed threshold and so permission to proceed on it must be refused. I await submissions from counsel for the claimant and Lewisham on the order that I should make on the legitimate expectation claim in the light of my suggestion in paragraph 29 above.
  68. Judge’s Note

    The parties have agreed to a declaration that Lewisham is obliged to consider the claimant’s claim to assistance in the light of its representation to the claimant and upon the undertaking of Lewisham to consider this claim of the claimant by 12 noon on Friday, 12 July 2002. Liberty to apply has been given.

    - - - - - - - - - - - - -

    MR JUSTICE SILBER: I am grateful to everybody for the suggestions that they have made to the judgment. I shall be incorporating those and also a substantial number of other points which I want to put into it. The issue that we have got to determine today is what order is to be made. What is the dispute between the parties?PRIVATE 

    MR SWIFT: My Lord, good morning. I appear on behalf of the London Borough of Lewisham this morning.

    MR JUSTICE SILBER: Welcome, yes, you are new.

    MR SWIFT: Yes. My Lord, you have in front of you from me something headed "Defendant's draft order". You will see that the gist of that is that Lewisham's position is that they should have the opportunity to consider for the first time the exercise of section 2 power. I am also in a position to indicate to you that Lewisham is in a position to do that relatively quickly, certainly by Friday week at the very latest and in all probability well before that.


    MR SWIFT: The point of dispute between myself and Mr Westgate, who appears this morning on behalf of Ms Theophilus.

    MR JUSTICE SILBER: Welcome to you as well. As far as I can see it is a game, we have substitutes today, apart from Mr Chamberlain.

    MR SWIFT: The point of dispute between us is simply that his position is that you should make an order today effectively requiring that financial assistance.

    MR JUSTICE SILBER: The trouble about that is that that is exactly what the judge ordered in Bibi and the Court of Appeal said that was inappropriate.

    MR SWIFT: My Lord, that essentially is my submission, subject to further considerations as to the scope of the section 2 power, but I know Mr Westgate has put before you a draft skeleton.

    MR JUSTICE SILBER: Can I read your skeleton? You see what I was proposing to do - this is my provisional view, and obviously I am open to argument from you on it - is to make a declaration of the sort that they made in Bibi to give you liberty to apply if you are dissatisfied with the way it is dealt with.

    MR WESTGATE: My Lord, the thrust of my submissions -- I appreciate your Lordship has not had an opportunity to read through them.

    MR JUSTICE SILBER: Can I read them through?


    MR JUSTICE SILBER: But is that not a course that you regard as being, what I have suggested, as being a sensible course?

    MR WESTGATE: Well, it is one of the courses which is open to your Lordship, but the general thrust, in my submission, is that really when one looks at the context of your Lordship's judgment there is not really any room for the exercise of further executive discretion.

    MR JUSTICE SILBER: Well, you see they said in Bibi that there can be other factors which could apply, although you might have a contractual claim, but reasonable expectation does not give you the right foot. You have seen Bibi, have you not?

    MR WESTGATE: My Lord, yes, but Bibi is a different case.

    MR JUSTICE SILBER: Yes, but can I just read your skeleton? That is probably best.


    MR JUSTICE SILBER: Yes, I have seen the way you put it. Can I ask you a question? Before I hear your submissions on this, Mr Westgate. Mr Swift, what do you say could be any possible reason for you not making the order? Or not actually compensating?

    MR SWIFT: My Lord, the position is this, as I understand it from your judgment, that made it clear that section 2 of the 2000 Act was actually in play, on the facts of the present case. My Lord, as you are aware section 2 itself is a very broad power, among other things to provide financial support. Clearly that is a discretion that has to be exercised both within the context of finite resources and also within the context of competing claims upon those finite resources. The position in the present case is that to date Lewisham has not had the opportunity to consider the exercise of the section 2 power at all. It is not a question of misconsideration; it is a question of never having considered the point at all. In those circumstances, to take Mr Westgate's last point first, he says at the end of his skeleton that there is no relevant public law exercise left open. Well, my Lord, there is because for the first time the section 2 power will be considered and in those circumstances the relevant budgetary considerations as to the money available to meet any decision in the claimant's favour have to be taken on board.

    MR JUSTICE SILBER: There cannot be any reason why this decision could not be taken this week by the Borough.

    MR SWIFT: My Lord, certainly the anticipation is that it certainly will be taken this week. I indicated to you Friday week as a very much longer----

    MR JUSTICE SILBER: No, well, I would want an undertaking that it is going to be taken this week.

    MR SWIFT: Friday, this week, my Lord?


    MR SWIFT: My Lord, I can give that undertaking.

    MR JUSTICE SILBER: And what I am minded to do on this -- I have not had an opportunity of looking at the cases and the position on this. It is a complex area. What I was proposing to do would to be to adjourn this for a week.

    MR WESTGATE: My Lord, certainly that would be my fall-back position.

    MR JUSTICE SILBER: Yes, so that I make a declaration, as in Bibi, upon them undertaking to consider it and then we can look at it again next Monday.

    MR WESTGATE: Yes, when the authority have given reasons for the position they adopted.

    MR JUSTICE SILBER: Yes, and they would have to give their reasons by 12 o'clock on Friday.

    MR SWIFT: My Lord, yes.

    MR JUSTICE SILBER: So on that basis you would not oppose an order that there should be a declaration with them undertaking -- I mean, I have not looked at the exact words of it, but it is something in the form of the order that has been put in by Mr Swift. We can talk about the exact words of it, but upon them undertaking to inform you by Friday at 12 noon and then you can come back next week in front of me if you are unhappy.

    MR WESTGATE: My Lord, one moment. My Lord, I am content with the order in those terms.


    MR WESTGATE: Yes, we would be content with an order in those terms.

    MR JUSTICE SILBER: Can you have a look at the order that has been drafted? I am leaving you out of this, Mr Chamberlain, because you are not an interested party in this.

    MR CHAMBERLIAN: I am quite happy to be left out of it.

    MR SILBER: Yes.

    MR WESTGATE: My Lord, the only alteration that I would anticipate being made to Part 1 of the draft order, and I understand this is not a point in issue, is that the provision of the student support should also include consideration of the dependant grant. Your Lordship may recall that----

    MR JUSTICE SILBER: Yes, of course. So where do we put that?

    MR SWIFT: My Lord, I think that would go in subparagraph (2) and that would now be: 'provision of' then colon '(a) ago' and then '; and/or (b) the dependant grant,' and then carry on as the remainder of subparagraph (1) and (2).

    MR SILBER: Yes. That would deal with your point, would it not?

    MR WESTGATE: Yes, it would.

    MR JUSTICE SILBER: Yes. Well, what I would propose to do, therefore, would be to make an order in those terms. Can you draft it and hand it into the associate please? Could you actually just draft that yourselves and put that in? So it is upon the London Borough of Lewisham undertaking to notify the claimant by 12 noon of--

    MR SWIFT: 12th July.


    MR SWIFT: 12 noon on 12th July.

    MR JUSTICE SILBER: --on 12th on how it would exercise its powers set out in paragraph 1 of the order. And then the order is set out there, the mandatory order requiring them to consider whether to exercise their powers, (2) the defendant to pay the claimant's costs of the application and (3) liberty to apply to the claimant. It would also be very helpful if you could fax a copy of whatever decision is made to me.

    MR SWIFT: Of course. Finally, my Lord, would your Lordship also include detailed assessment of the----

    MR JUSTICE SILBER: Yes, is there a certificate?

    MR WESTGATE: Yes, there will be I am told.

    MR JUSTICE SILBER: Yes, there is. Well, I order it. And I think the other thing we have to say is permission to make the claim in respect of Article 49, or permission to make that is refused.

    MR CHAMBERLIAN: Yes, my Lord, I think it is permission to proceed.

    MR JUSTICE SILBER: Permission to proceed. Does that deal with everything?

    MR WESTGATE: Yes, I think it does.


    MR SWIFT: My Lord, I believe it does, yes.

    MR WESTGATE: The only issue I would raise is this that your Lordship has included liberty to apply to the claimant. Is your Lordship sitting next week if the application were made, for example, on Monday morning?

    MR JUSTICE SILBER: I am in the Court of Appeal for the next fortnight, but I will happily deal with this at an earlier stage, preferably on Monday which is a reading day, but if not you are going to have to put your alarm clocks on and come in at 9 o'clock.

    MR WESTGATE: My Lord, the only point I had in mind is whether a time limit should apply if we are not happy with the form of the decision by the defendant, but it may be that that will----

    MR JUSTICE SILBER: Well, I am not sure I can give you general liberty to apply, but I think you are going to have to apply on written notice, together with a skeleton, because I think it is going to save a great deal of time if I can read something in advance. Can I thank you very much?

    MR WESTGATE: Thank you.

    MR JUSTICE SILBER: Can I just say for the law reporters that the final version of the judgment will come out later. It raises something which you might consider important because it is the first case which determines that a local authority has got power to make student grants, power rather than duty I add.

    Well, thank you all very much for all your help. Can you thank those for whom you are standing in as well? Thank you.

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