In August 2020, the Office for Students lost on appeal in a judicial review of its decision to refuse registration to the Bloomsbury Institute. This has significant consequences for the sector, indicating that the Office for Students should be working in a more open and transparent way when making policy decisions. The court found that the issues affecting the Bloomsbury Institute (in particular, relating to the baselines for quality indicators) were policy rather than merely operational matters. The Office for Students should therefore have carried out publication and consultation of the baseline minimum performance thresholds being used.
The Bloomsbury Institute (formerly known as the London School of Business and Management) was refused registration in May 2019 on the basis of quality. The Office for Students considered that the Bloomsbury Institute had not performed well enough in relation to two criteria relevant to condition B3, which makes registration conditional on a higher education provider “securing successful outcomes for all its students”.
The Bloomsbury Institute was granted permission for a judicial review of the Office for Students’ decision, but its case was initially dismissed on all grounds. In August, however, the Bloomsbury Institute successfully appealed. The Office for Students’ decision to refuse registration was quashed on a number of grounds. We examine these grounds below.
Delegation: policy or operational?
The Bloomsbury Institute’s application was assessed against internal Office for Students guidance, prepared by the OfS’s Director of Competition and Registration. This guidance specified how OfS assessors were to evaluate the B3 performance thresholds, including student continuation and progression rates. It also made allowance for certain demographic factors (for example, students having left school without taking A-levels) and for part-time courses. It did not make any such allowance for courses that included a foundation year. At the Bloomsbury Institute, 88% of students were enrolled on a four-year course which included a foundation year, enabling a non-traditional route to higher education.
The decisions on how the B3 performance thresholds should be adjusted were held by the Court of Appeal to be policy decisions, not merely operational matters. The judge remarked that these baseline decisions “could not by any stretch of the imagination be described as merely operational”. This meant that they should not have been left to the Director for internal decision-making: she had not been delegated the power to make such policy decisions.
More transparency needed: publication and consultation
Because the baseline decisions were policy decisions, the failure to consult on and publish them constituted unfairness in the treatment of the Bloomsbury Institute. The Office for Students was obliged by common law, provisions in the Higher Education and Research Act and the Regulators’ Code to publish the guidance that set out how they were making these policy decisions. The foundation year course policy decision should have been consulted on when it was at the formative stage. Instead, insufficient information had been provided to allow the Bloomsbury Institute to participate in informed and meaningful consultation.
What next for the Office for Students?
As a result of the above findings, the court quashed the OfS decision to refuse to register Bloomsbury. The OfS has subsequently approved Bloomsbury Institute’s registration, subject to two specific ongoing conditions of registration under condition B3 relating to student continuation.
This was a significant decision in 2020 by the Court of Appeal, confirming that the Office for Students which was established under the Higher Education and Research Act 2017 as the statutory regulator for higher education in England, is required to conform to the principles of public law in its decision-making.