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The High Court has today dismissed the first judicial review to be brought against the Office for Students (OfS), the new regulator for higher education established by the Higher Education and Research Act 2017 (HERA).

The challenge was brought by a higher education provider, Bloomsbury Institute, against the OfS’s refusal to register it as a higher education provider, the consequence of which was that its students would not be able to obtain student loans. Bloomsbury argued that the OfS’s decision was irrational and unfair, among other reasons because of the statistical indicators used by the OfS to assess the quality of Bloomsbury’s provision.  Bloomsbury contended that the OfS’s approach did not take sufficient account of the disadvantaged background of its students and had not been the subject of a proper consultation. It further argued that the decision was a disproportionate interference with its possessions (namely its marketable goodwill) under Article 1 Protocol 1 ECHR (A1P1). 

Mr Justice Cavanagh dismissed Bloomsbury’s claim. He held that the OfS’s decision and approach of using statistical indicators were rational and proportionate and had been the subject of a fair consultation. He further held that there had been no interference with any possession for the purposes of A1P1 because registration itself was not a transferable possession and any future earnings contingent on registration were not part of Bloomsbury’s marketable goodwill. Moreover, potential contracts with future students could not amount to marketable goodwill. For the same reasons, the facts did not within the ambit of A1P1 such that the OfS’s decision was not discriminatory contrary to Article 14 ECHR. 

A full copy of the decision can be found here

Monica Carss-Frisk QC, Tristan Jones and Tom Coates acted for the OfS.

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