Office for Students unlawfully predetermined decision that university was in breach of registration conditions, High Court rules

The regulator had fined the university £585,000 over the breaches.

However, in The University of Sussex v The Office for Students [2026] EWHC 984 (Admin), Mrs Justice Lieven concluded that the OfS’s final decision was “vitiated by bias because the OfS approached the decision with a closed mind and had therefore unlawfully predetermined the decision.”

The decision arose following an OfS investigation into the university, which opened on 22 October 2021 and concluded on 27 March 2025.

The investigation was prompted by a series of student protests at the university concerning Professor Stock, a gender critical feminist.

However, the High Court case did not adjudicate on any issues relating to the events surrounding Professor Stock.

The OfS investigation had evaluated a series of documents of the university, namely the Trans and Non-Binary Equality Policy Statement (“TNBEPS” or “the Policy Statement”), the Freedom of Speech Code of Practice (“FOSCOP”) and the External Speakers Procedure (“ESP”).

The Policy Statement was at the heart of the OfS decision.

The final decision was made by the OfS’s “University of Sussex Compliance and Enforcement Committee” (USCEC) on 27 March 2025.

In the final decision, the USCEC found that the 2018, 2022, and 2023 versions of the Policy Statement had breached condition E1 (to uphold academic freedom and freedom of speech in its governing documents).

It also found that the university had used incorrect delegation procedures to approve FOSCOP 2021, ESP 2023, and the Policy Statement 2022 and 2023, and had therefore breached condition E2(i) (to have in place adequate and effective management and governance arrangements to operate in accordance with its governing documents).

On 9 May 2025, the university challenged the OfS’s findings of breach and sanction in a judicial review claim, advancing several grounds.

Considering the submissions of the parties, Mrs Justice Lieven concluded that the OfS did not have jurisdiction to make the finding of breach of condition E1 because the Policy Statement was not a “governing document” within the meaning of Section 14(1) of the Higher Education and Research Act 2017 (HERA).

Even if the OfS had had jurisdiction, the OfS misdirected itself on the meaning of “freedom of speech within the law” and “academic freedom”, and failed to have proper regard to the protective effect of the University’s Freedom of Speech Code of Practice.

The judge found that the OfS did have jurisdiction to make the finding of breach of condition E2(i) because the powers given to the OfS in HERA do encroach into, or overlap with, the Visitor's jurisdiction.

However, the OfS was wrong in law not to have considered whether the alleged breaches of both conditions had been remedied by the time of the final decision.

She concluded: “The Final Decision was vitiated by bias because the OfS approached the decision with a closed mind and had therefore unlawfully predetermined the decision.”

Josh Fleming, interim chief executive of the OfS, said: "We are disappointed, of course, by this ruling. We will carefully consider the consequences of the judgement before deciding on next steps. We will reflect on the Judge’s findings and use them to help inform our future approach.

"Our focus remains on students and the sector, and we are pleased that following our investigation a dozen institutions, including the University of Sussex, have amended policies which restricted freedom of speech. As a result, students and academics should feel greater confidence in their ability to engage in the free and frank exploration of thought that characterises English higher education.

"It’s important to stress that this case – and the OfS’s investigation – is not about the substance of ongoing debates around sex and gender. Freedom of speech extends to all sides of this and other subjects; we work to protect lawful speech irrespective of its content. 

"Ensuring free and robust debate is fundamental to the continuing success of higher education in England, and the OfS’s new complaints scheme will help make sure we can take swift action where free speech rights are restricted."