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

The claim was a judicial review of the Office for Students' decision of 23 May 2019 to refuse Bloomsbury Institute's application for registration. The OfS assessed Bloomsbury against initial registration Condition B3 (that the provider must deliver successful outcomes for all of its students) and other conditions, using data-based indicators including continuation and progression rates. Bloomsbury alleged that the OfS had applied predetermined numerical baselines/thresholds (set out in a confidential Decision-Making Guidance) without consultation, that the thresholds were ultra vires, that the OfS breached its Public Sector Equality Duty and its own published Regulatory Framework, and that the decision was irrational, disproportionate and in breach of Convention rights (A1/P1 and Article 14).

The court held that the Decision-Making Guidance did not depart from the published Regulatory Framework, that the OfS had consulted appropriately about the Framework, and that it was not obliged to publish the confidential operational guidance or the precise numerical cut-offs used internally. The judge found that the thresholds were tools used in a multi-stage assessment which included demographic "split" analysis and a context stage, and were not inflexible automatic disqualifiers. The court also rejected challenges that the Decision-Making Guidance was ultra vires or that the OfS failed to comply with the Equality Act duty in a manner rendering the decision unlawful. The court concluded the OfS's overall assessment and refusal to register Bloomsbury were not irrational or disproportionate and that, even if Convention rights were engaged, any interference would have been proportionate.

The claimant, Bloomsbury Institute Limited (an alternative higher education provider predominantly serving mature and disadvantaged students), challenged the OfS's refusal to register it under the Higher Education and Research Act 2017. Registration is necessary for students to access Student Loans Company funding. Bloomsbury contended that the OfS had applied confidential internal Decision-Making Guidance containing numerical baselines/thresholds for continuation and progression rates, had failed to consult about or publish those thresholds, had acted ultra vires in delegating their establishment, had breached the Public Sector Equality Duty, had acted contrary to its Regulatory Framework and Secretary of State guidance, and had reached an irrational and disproportionate outcome. Bloomsbury further argued breaches of Article 1 of Protocol 1 and Article 14 of the ECHR.

Issues before the court included: (i) the proper interpretation and interaction of the Regulatory Framework, Regulatory Advice and the internal Decision-Making Guidance; (ii) whether consultation obligations required publication or prior consultation on the internal thresholds; (iii) whether the Director who prepared the Guidance exceeded delegated powers; (iv) compliance with the public sector equality duty; (v) whether the use and setting of numerical and demographic thresholds was irrational or disproportionate; and (vi) whether any Convention rights were engaged and breached.

The judge set out the statutory and regulatory architecture (HERA, the 2011 Student Support Regulations, the Regulatory Framework and Regulatory Advice). The court found that the OfS had consulted appropriately on the Regulatory Framework, that the internal Decision-Making Guidance implemented the published framework and did not introduce a different or absolute approach, and that assessors used thresholds as a first-stage tool followed by split (demographic) analysis and contextual judgements. The court held that it was reasonable for the OfS to require a single minimum level of performance across providers while taking context into account; that the Director's role in devising internal guidance was within delegated operational authority; and that the February 2018 Equality Impact Assessment together with the Director's consideration of equality matters amounted to a proportionate discharge of the PSED. The court found the OfS's assessment of Bloomsbury's continuation and progression data, and the final refusal to register, were not irrational or disproportionate. On property and anti-discrimination human rights arguments, the court concluded either no "possession" under A1/P1 was interfered with or, in any event, the interference was a proportionate means of pursuing legitimate regulatory aims. The claim for judicial review was dismissed.

The claim is dismissed. The court held that the OfS lawfully applied the published Regulatory Framework and used internal Decision-Making Guidance as an operational tool; it was not obliged to publish the internal thresholds or consult on them. The Director's preparation of that guidance fell within delegated operational powers. The OfS adequately addressed equality obligations. The refusal to register Bloomsbury, based principally on failure to satisfy Condition B3, was neither irrational nor disproportionate, and no breach of Convention rights was made out.