Bath Spa University & Ors v Secretary of State for Education & Anor

The meaning of a distance learning course is determined by statutory text and context, not by guidance, administrative practice or the course’s full-time character. Under regulation 2(1) of the Education (Student Support) Regulations 2011, each requirement to attend on a weekend is disregarded; recurring weekend attendance therefore leaves a course within the distance-learning category. A substantive legitimate expectation cannot authorise payments prohibited by statute. A general weekday/weekend distinction in eligibility rules for finite public funds may be rational even if imperfect. Universities lack standing to challenge delays in support payable to students where their interest is indirect.

Five universities sought judicial review of the Secretary of State’s decision, communicated on 23 March 2026, that full-time undergraduate courses requiring study and in-person attendance only at weekends were distance learning courses. The classification removed eligibility for maintenance grants and loans, although students could receive tuition-fee support under the statutory scheme.

The claim challenged the meaning of regulation 2(1), an alleged substantive legitimate expectation, the rationality of the statutory distinction, and the Student Loans Company’s reinstatement of support for students who moved to weekday courses. The expedited hearing addressed permission and, if permission were granted, the substantive claim. The central issues were whether weekend attendance was excluded by the statutory definition, whether the grounds were in time, and whether the universities could obtain relief concerning payments due to students.

Permission to claim judicial review was refused on all four grounds.

1. Time. Under rule 54.5(1) of the Civil Procedure Rules 1998, promptness and the three-month limit are assessed by identifying the conduct challenged. Following R (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657, the court considered time separately for each ground. Grounds 1, 2 and 4 were in time. Ground 3 arose when each university was first affected by the statutory definition, at the latest when it first registered a weekend-only course. It was substantially out of time, and no extension was justified.
2. Interpretation. The meaning of secondary legislation is an objective question. The court imputes intention to the maker from the statutory language read in context. Under regulation 2(1) of the Education (Student Support) Regulations 2011, each individual requirement to attend on a weekend falls within the exclusion. “A weekend” refers generically to weekends, and the singular includes the plural under the Interpretation Act 1978. Weekend-only courses were therefore distance learning courses. The statutory history, guidance and subsequent administrative practice could not add an unstated requirement of occasional or infrequent weekend attendance. Ground 1 had no arguable merit.
3. Legitimate expectation. A substantive legitimate expectation requires a clear, unambiguous and relevantly unqualified representation, and departure must be so unfair as to amount to an abuse of power. The guidance did not promise that weekend-only courses would be treated as in-attendance courses. In any event, an expectation inconsistent with the statutory scheme could not require payment beyond statutory powers. The argument based on Article 1 of the First Protocol did not convert a claim for future unlawful payments into protection of an existing possession. Ground 2 therefore failed.
4. Rationality. The challenge to the statutory eligibility rule was subject to an exacting standard. Heightened scrutiny was not required merely because public financial support was at issue. Weekday attendance was a rational proxy for interference with conventional full-time employment. The proxy could remain rational despite individual exceptions, over-inclusion or under-inclusion, and the later emergence of weekend-only courses did not make the 2011 choice irrational. Ground 3 would have failed on its merits in any event.
5. Reinstatement and standing. Grants and maintenance loans were payable to students, not universities. The universities had no sufficient direct interest in delays affecting students, who were better placed to challenge them and had not been made parties. Even if standing existed, the evidence showed a large-scale manual exercise in which most cases had been processed and outstanding cases were being actively investigated. No unlawful systemic delay or public law error was established. A mandatory order was unnecessary.