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

A specialist regulator may use numerical indicators as part of a structured assessment, provided they are not treated as automatic or inflexible cut-offs and the provider’s context is considered. Statutory consultation need not extend to every operational detail of an assessment methodology. A duty to have regard to proportionality is ordinarily a process duty, although the court proceeded on the assumed basis that Higher Education and Research Act 2017, section 7, imposed a substantive proportionality requirement. The specialist regulator is entitled to a broad margin of judgment when calibrating outcome measures. Registration for student-loan purposes is not itself a possession under A1/P1 where it is non-transferable and affects only prospective future income. The judicial review claim was dismissed.

Bloomsbury Institute, a private higher education provider serving a substantial number of disadvantaged and mature students, challenged the Office for Students’ refusal to register it under the new regulatory regime established by the Higher Education and Research Act 2017. Registration was necessary in practice for new UK students to obtain tuition-fee and maintenance loans. The OfS relied principally on continuation and progression data in concluding that Condition B3 was not satisfied, and also concluded that Condition E2 was not satisfied.

The claim challenged the use and non-publication of internal numerical thresholds, the consultation process, delegation, equality duties, irrationality, proportionality, the relevance of QAA assessments, and rights under A1/P1 and Article 14 of the ECHR.

1. Claim dismissed. The OfS’s use of numerical baselines and thresholds was lawful. They were used as indicators of significant concern, not as automatic cut-offs. The assessment also considered split demographic indicators and the provider’s wider context.
2. The consultation under sections 5 and 75 of the Higher Education and Research Act 2017 concerned the regulatory framework, registration conditions and the general approach to assessment. It did not require consultation on every operational detail or disclosure of the precise internal percentage thresholds. The consultation was neither misleading nor unfair.
3. The internal Decision-Making Guidance was consistent with the published Regulatory Framework. It was operational guidance, and the Director of Competition and Registration was entitled to prepare it under the OfS’s Scheme of Delegation. The final registration decision remained with the Provider Risk Committee.
4. The OfS complied with its equality duties. The public sector equality duty required due regard to equality objectives, not achievement of a particular outcome. Compliance did not require a separate equality impact assessment or contemporaneous document, and the duty could be discharged by an appropriate senior official.
5. The OfS acted rationally in applying broadly common minimum standards, treating Foundation-year courses like other undergraduate courses, using a six-month progression period, relying on professional and managerial occupational classifications, and using a 75% demographic sense-check. The court allowed a specialist regulator a broad margin of judgment.
6. The court proceeded on the assumed basis that section 7 of HERA imposed a domestic proportionality duty. Applying the structured approach in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, the refusal pursued a legitimate aim, was rationally connected to it, could not be replaced by a less intrusive effective measure, and struck a proportionate balance.
7. Registration was not a possession for A1/P1 purposes. It was non-transferable, and any future income dependent upon it could not be capitalised as marketable goodwill. In addition, the refusal affected prospective rather than existing students, so the loss of future contracts was not protected goodwill under Breyer Group plc v Department of Energy and Climate Change [2015] EWCA Civ 408.
8. Article 14 was not engaged because the facts did not fall within the ambit of A1/P1 or A2/P1. In any event, the refusal to treat Bloomsbury differently was justified and proportionate. The application for judicial review was dismissed.