[2023] UKUT 193 (AAC)

I therefore conclude that the Tribunal erred in law by following the decision in CH/4429/2006, even though that decision was binding on it. I exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to set its decision aside. Rather than remit the case to the First-tier Tribunal, I have decided to re-make it under section 12(2)(b)(ii).

In ordinary language a statement that someone cannot, or could not, do something, is not necessarily restricted to circumstances in which he is physically incapable of doing that thing, but may also cover circumstances in which, for whatever reason, he cannot bring himself to do it. For example, if a person is a sincere vegetarian, it would not be a misuse of language to say that he “cannot” or “could not” eat meat.

In that broader sense, the claimant cannot acquire a student loan while the terms of any such loan include a liability to pay interest. There are no steps, reasonable or otherwise, that he could take to acquire such a loan. His religion prevents him from doing so as much as, and possibly more than, a physical impediment would do.

The question therefore becomes whether the religious impediment to acquiring a loan is a reasonable one. There may be some who would say that all religion is inherently unreasonable, relying as it does on faith. Nevertheless many, if not most, people in the world hold religious convictions and I am not prepared to hold that the prohibition on interest, which is a tenet of one of the world’s major religions, is unreasonable. It makes no difference to that conclusion that some who profess the Islamic faith do not follow its teachings on the point.

Taking into account all the claimant’s circumstances and, in particular, his sincere and strongly held religious conviction that it would be a major sin for him to pay interest, I judge that it would not have been reasonable for the claimant to take the steps that he would have needed to take in order to acquire a student loan.

That is so even though I must also give weight to the government’s policy on the allocation of public funds. The claimant’s refusal to apply for a student loan was not opportunistic. He was not trying to evade the rules on student finance any more than Mr Thlimmenos was seeking to be insubordinate when he refused military service. He was not seeking to obtain a financial benefit for himself even if, which he vigorously denies, that would be the effect were he to be awarded housing benefit without taking a notional student loan into account. Further, on what I have held to be the correct interpretation, regulation 64(3) impliedly contemplates that there will be circumstances in which a student could not acquire a student loan by taking reasonable steps which relate to his personal circumstances rather than to the mere mechanics of making the application.

In those circumstances I consider that the claimant’s personal circumstances outweigh any loss to public funds, which is likely to be minor (see paragraphs 153-159 above), when it comes to assessing the reasonableness of his omission.