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Office for Students successfully defends first judicial review action

The High Court has dismissed the first judicial review to be brought against the Office for Students (OfS).

Bloomsbury Institute, a private body, challenged a ruling that it was ineligible for registration as a higher education provider.

This had in turn meant that its students could not access student loans, effectively making it impossible for the institute to function.

Blackstone Chambers, members of which acted for the OfS, said Bloomsbury argued that the OfS’s decision was irrational and unfair, in part because of the statistical indicators it used to assess the quality of its provision. 

The institute argued this did not take sufficient account of the disadvantaged background of its students and had not been the subject of a proper consultation.

Bloomsbury also argued that the decision was a disproportionate interference with its marketable goodwill under Article 1 Protocol 1 ECHR.

Mr Justice Cavanagh held though that the OfS’s decision and approach were rational and proportionate and had been the subject of a fair consultation.

He said there had been no interference with Bloomsbury’s marketable goodwill since registration was not a transferable possession. Nor could potential contracts with future students amount to marketable goodwill.

In Bloomsbury Institute Ltd, R (On the Application Of) v The Office for Students [2020] EWHC 580 Cavanagh J said that registration was refused primarily because the OfS decided that Bloomsbury had not satisfied one of its conditions concerned with securing ‘successful outcomes for all of its students’.

The OfS had also concluded that Bloomsbury had not performed sufficiently well in relation to student continuation rates from year one to year two and rates of progression to professional employment or post-graduate study.

Bloomsbury also submitted that the OfS erred in law in relying on confidential decision-making guidance, drawn up by its director of competition and registration Susan Lapworth, which contained the pre-determined thresholds.

It said these should have been made public and consulted upon and that the OfS erred in law in not publishing the thresholds in advance, not informing Bloomsbury - or other providers - that these pre-determined thresholds would be used, and in failing to consult about the thresholds and other matters.

Bloomsbury also submitted the use of these thresholds was ultra vires as Ms Lapworth did not have authority to set them, and that they were implemented in breach of the OfS's public sector equality duty because of Bloomsbury’s emphasis on disadvantaged students.

Cavanagh J concluded: “In my judgment, the consultation conducted by the DfE on behalf of OfS fully complied with the statutory consultation requirements (and, in so far as the OfS was under any consultation obligations as a result of the Regulatory Code, these too).”

He also rejected all other grounds argued by Bloomsbury.

Mark Smulian

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