Date Legislation considered: 30 June 2022
Date Legislation in Force: 01 August 2022
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment/Worker’s Rights
What does the legislation do?
The St Mary’s Music School (Aided Places) (Scotland) Amendment Regulations 2022 (“the 2022 Regulations”) amend the St Mary’s Music School (Aided Places) (Scotland) Regulations 2015 (“the 2015 Regulations”), which provide the legislative framework for the administration of the aided places scheme for pupils attending St Mary’s Music School in Scotland.
The policy note accompanying the legislation provides “that the purpose of the instrument is to update references to EEA nationals to maintain eligibility following the end of the UK Exit from the EU ‘Implementation Period’; to revise the income levels which determine eligibility for financial assistance under the Aided Places Scheme, in order to reflect recent inflation; and to add a new paragraph to extend eligibility to displaced Ukrainian nationals taking part in a UK government relocation scheme.”
Paragraph 2 of Schedule 1 to the 2015 Regulations (as amended) sets out the residence conditions which need to be met to receive assistance by way of an aided place.
Whilst the 2022 Regulations purport to amend paragraph 2 to maintain eligibility following the UK leaving the EU, the effect is such that there are various cohorts of children who have rights under the Citizens’ Rights Agreements (e.g. children of the self-employed and frontier workers, children who lived in the EEA prior to 31st December 2020 and children who are joining family members) who would on the face of it be ineligible for a grant aided place at the School.
“The Scottish Government’s policy intention is that persons with protected rights under the Citizens’ Rights Agreements should be eligible to apply for the aided places scheme maintained under the St Mary’s Music School (Aided Places) (Scotland) Regulations 2015 (S.S.I. 2015/248) (“the 2015 Regulations”), subject to a residency requirement which will apply to most applicants, with the exception of joining family members. That residency requirement would be 2 years spent in the British Islands, the EEA or a mixture of the two, depending on the circumstances. There has been no change of policy in this regard. However, we accept that this has not been properly reflected in the 2015 Regulations for some time and is not reflected in those Regulations as amended by the St Mary’s Music School (Aided Places) (Scotland) Amendment Regulations 2022 (S.S.I. 2022/173).
We accept that the residence aspect of the eligibility criteria in the 2015 Regulations have the effect of excluding persons who are not workers in terms of EU law and that, so far as this relates to the tuition fees element of the Aided Places Scheme, this is not in accordance with the Citizens’ Rights Agreements and does not meet the Scottish Government’s policy intention. In particular, self-employed persons and other persons who are not workers but who have protected rights and who should be eligible to apply to the scheme are not currently included. In addition, frontier workers have been inadvertently excluded by the residency requirement in the amending regulations.
We intend to rectify these issues by way of amending regulations which will be laid as soon as practicable and in any event before the end of this calendar year. The amending regulations will make it clear that all persons with protected rights under the Citizens’ Rights Agreements who satisfy the criteria of 2 years residency in the British Islands, the EEA or a mixture of both (depending on the circumstances), will be eligible to apply to the scheme. In addition, the amendments will ensure that joining family members of such persons will be eligible to apply to the scheme.”
Following a Monitoring and Compliance period with the Scottish Government, the IMA has now concluded that the actions taken by the Scottish Government will resolve the potential systemic issues identified.
Should the IMA receive any further intelligence or complaints regarding this issue in the future, further enquires may be made with the relevant public authority, wherever necessary.
Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint through the IMA Portal.