Bloomsbury Institute Ltd, R (On the Application Of) v The Office for Students

A public authority must exercise delegated functions through the body or officer authorised by an objectively interpreted scheme of delegation. A regulator’s important policy choices cannot be treated as operational details merely because they implement a broader regulatory framework.

A person affected by a policy has a public law right to know the information needed to make informed and meaningful representations. Where consultation is required, important policy choices must be disclosed while proposals remain formative. A consultation is unlawful when the process is so unfair as to be unlawful; the expression “clearly and radically wrong” creates no additional threshold.

The Office for Students refused to register a higher education provider after assessing its continuation and progression rates under unpublished Decision-Making Guidance. The guidance used numerical baselines and demographic thresholds, but made no special allowance for four-year degree courses incorporating a foundation year.

The Administrative Court, in [2020] EWHC 580 (Admin), dismissed the provider’s judicial review challenge. The provider appealed on three grounds: whether the guidance had been adopted without authority under the regulator’s Scheme of Delegation; whether it should have been published and consulted upon; and whether its demographic threshold analysis was irrational.

1. Disposition. The appeal was allowed unanimously on the delegation and publication and consultation grounds. The Administrative Court’s order was set aside, and the decision refusing registration was quashed. It was unnecessary to determine the irrationality ground.
2. The Scheme of Delegation had to be interpreted objectively, although its wording called for a broad and untechnical approach rather than the fine analysis appropriate to legislation or a contract. The decisions to use baselines as the principal means of accounting for demographic factors, to set their levels, and to make no additional allowance for foundation-year courses were important policy decisions. They were not operational decisions capable of being cascaded under paragraph 13 of the Scheme. They therefore required approval by the Office for Students Board. The failure to comply with the Scheme was fatal to the registration decision.
3. The governing publication rule was that an individual affected by an executive policy is entitled to know the parts of the current policy needed to make informed and meaningful representations before a decision is made. Draft policies and irrelevant details need not be published, and compelling considerations may justify secrecy. The baseline policy was neither irrelevant detail nor merely granular implementation. Once adopted, it had to be published.
4. The common law imposes no general duty to consult before adopting a measure. Where a duty arises from statute, legitimate expectation, promise or practice, consultation must occur while proposals remain formative; sufficient reasons and time must be provided for an intelligent response; and the response must be conscientiously considered. The test of unlawfulness is whether the consultation process was so unfair as to be unlawful. References in earlier cases to something having gone “clearly and radically wrong” do not create an additional hurdle.
5. The regulator had consulted upon and published its Regulatory Framework as required by sections 5 and 75 of the Higher Education and Research Act 2017. It did not, however, disclose the important policy choice concerning foundation-year courses. A provisional refusal letter issued after the policy had been settled did not cure the defect because the provider was then in a materially weaker position than it would have occupied during policy formulation. The failure to publish and consult upon that policy choice was clearly unfair.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 1074, the court unanimously allowed the appeal on the delegation and publication and consultation grounds, set aside the Administrative Court’s order and quashed the refusal of registration.
2. Administrative Court: In [2020] EWHC 580 (Admin), Cavanagh J dismissed all grounds of the judicial review challenge and held that the Office for Students was entitled to refuse registration.