Hurley and Moore, R (on the application of) v Secretary of State for Business Innovation & Skills

Where the state provides higher education, it must afford an effective right of access, but it may charge fees. A fee regime supported by deferred loans and measures directed at widening participation will ordinarily be justified unless it creates a clearly established disproportionate barrier.

Indirect discrimination under Article 14 requires proof of disparate impact. The scheme must be assessed as a whole, including mitigating financial support. A public sector equality duty requires rigorous and conscientious pre-decision consideration of relevant equality objectives, but it does not prescribe the outcome or the weight to be given to those objectives. A breach may justify declaratory relief without quashing a measure where the impugned element was adequately assessed and quashing would be disproportionate.

Two prospective university students sought judicial review of the Higher Education (Basic Amount) Regulations 2010 and the Higher Education (Higher Amount) Regulations 2010. The regulations, made under section 24 of the Higher Education Act 2004, raised the maximum basic fee to £6,000 and the maximum higher fee to £9,000.

They contended that the increases breached the right to education under Article 2 of Protocol 1 to the European Convention on Human Rights, alone or with Article 14, because poorer students would be deterred by debt. They also alleged breach of the public sector equality duties under the race, disability and sex discrimination legislation. The central issues were whether the funding package unlawfully restricted access to higher education or indirectly discriminated, and whether the Secretary of State had discharged the equality duties before making the regulations.

1. The human-rights challenge failed. Article 2 of Protocol 1 required an effective right of access where the state provided higher education, but it did not prohibit tuition fees. The fee increases were properly assessed with the deferred-loan scheme, grants, scholarships and access-plan requirements. It was not established that the package denied the essence of the right or imposed a disproportionate restriction. The court applied the approach in Sahin v Turkey (2005) 41 EHRR 8 and Ponomaryov v Bulgaria.

2. The Article 14 claim also failed. Indirect discrimination could arise from a measure with disproportionately prejudicial effects, but the claimant bore the initial burden of proving disparate impact. The evidence did not establish a sufficiently clear adverse impact on lower socio-economic groups once the whole package was considered. Even if impact had been shown, sustainable funding of high-quality and accessible higher education was a legitimate objective. The means were justified and the Secretary of State was entitled to significant latitude in this macro-economic and resource-allocation judgment, applying Huang v Secretary of State for the Home Department [2007] UK HL 11.

3. The Secretary of State had substantially complied with the public sector equality duties in relation to the fee structure. He had conscientiously considered the effect of fees on economically disadvantaged students, which was the relevant route by which protected groups could be indirectly affected. The duties required rigorous and substantive consideration, rather than a formulaic equality impact assessment, but left the ultimate weighting of equality considerations to the decision-maker.

4. There was nevertheless a failure fully to discharge the duties in respect of the overall package. The assessment did not show a structured focus on all potentially engaged statutory objectives and protected characteristics. A declaration was therefore appropriate.

5. The regulations were not quashed. The particular fee decision had been adequately analysed, there had been substantial compliance in fact, and quashing would cause serious administrative and economic disruption. The failure did not warrant that disproportionate remedy.

not stated in the judgment.