In R (Bloomsbury Institute Ltd) v Office for Students  EWCA Civ 1074, the Court of Appeal has allowed Bloomsbury’s appeal in the first case to consider the OfS’s approach to the registration of higher education providers. The Court found that the internal guidance which shaped the OfS’s decision had been adopted in breach of its scheme of delegation, and that the OfS had unlawfully failed to consult on or to publish it.
The OfS became the single regulator for higher education providers following the passage of the Higher Education and Research Act 2017. In 2018, the OfS consulted on and published a Regulatory Framework which identifies the initial conditions of registration and explains broadly how compliance with these conditions will be assessed.
Unbeknownst to providers, the OfS also developed more detailed internal guidance for assessing compliance with (in particular) the condition requiring that providers secure successful outcomes for all their students. The guidance, which relied heavily on the use of statistical thresholds, was not formally approved by the OfS Board and was neither consulted on nor published. The result was that providers had no opportunity to comment on, and indeed remained entirely unaware of, an important part of the OfS’s approach to registration.
Bloomsbury – a provider focussed on serving students from disadvantaged backgrounds – was refused registration in May 2019 on the basis that it had failed to meet this condition. It was only when it challenged the refusal in the Administrative Court that it became aware of the content, and the significance, of the internal guidance.
The Court of Appeal has now confirmed that the guidance contained important policy decisions which should have been consulted on; published; and approved at a higher level within the OfS. The decision to refuse Bloomsbury’s registration has been quashed.