Interchange Trust, R (on the application of) v London Metropolitan University & Anor

A university may make an urgent decision to stop validating a course, and to refuse further enrolments, after receiving a formal adverse quality judgment, even before the quality-assurance process is complete. The decision is distinct from the quality-assurance process itself. Consultation is sufficient where the decision-maker has little practical room to change the outcome and retains ultimate responsibility for academic standards and awards. Courts should exercise substantial restraint when reviewing a university’s judgment about course viability. Relevant interests, including existing and prospective students, must nevertheless be considered. A contractual relationship may fall within public-law supervision where the university performs a public function. A legitimate expectation of receiving a course does not necessarily extend to enrolment on a course judged seriously defective.

The claimant charity operated a performing-arts foundation degree course in collaboration with London Metropolitan University. The University retained ultimate responsibility for academic standards and quality assurance. Following a review, the Quality Assurance Agency informed the University that it had no confidence in the course’s emerging academic standards, student achievements or learning opportunities.

Before receiving the draft or final report, the University decided to stop validating the course after 31 August 2006 and not to admit the proposed September 2005 intake. The claimant sought judicial review, alleging misunderstanding of the quality-assurance process, inadequate consultation, failure to consider relevant interests, breach of legitimate expectation and other public-law errors. The central issues were whether the decision was lawful and whether any effective remedy should be granted.

1. Permission and outcome. Permission was granted, but the substantive remedies were refused. The University’s decision therefore stood.
2. Quality-assurance process. The QAA’s adverse judgment was a formal part of its review process. The University’s decision whether to continue running the course was a separate decision-making process. It was lawful in principle for the University to act on the judgment before the draft and final reports were issued, particularly given its responsibility for academic standards and the impending intake.
3. Consultation. There was no statutory duty to consult on the principal decision. The consultation that occurred on the treatment of existing students, representations to the QAA and arrangements for prospective students was sufficient in the circumstances. Greater openness about the extent of the QAA’s concerns would have been preferable, but the omission did not vitiate the decision because the University had little practical room to manoeuvre and consultation could not realistically have altered its fundamental response.
4. Academic judgment and relevant factors. The court should hesitate before interfering with a university’s assessment of the viability and standards of a degree course. The University had considered the QAA findings, the interests of existing and prospective students, WAC’s position, funding implications and its academic standing. The contract did not disclose a serious public-law failure.
5. Legitimate expectation and public function. The prospective students could expect the course to occur, but that expectation did not clearly extend to starting a course which the University reasonably considered seriously defective. Judicial review was available despite the contractual setting because higher education was a public function subject to statutory control and substantial public funding.
6. Relief and costs. The court considered that relief might in any event have presented practical difficulties, including requiring the parties to continue an impaired relationship and reconstructing the first-year course. Costs in the principal application were reserved, with liberty to apply; there was no order as to the QAA’s costs. Permission to appeal was refused.

First-instance judicial review proceedings. No earlier decision is stated in the judgment.