R (Barking & Dagenham College) v The Office for Students [2019] EWHC 2667 (Admin)
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R (Barking & Dagenham College) v The Office for Students [2019] EWHC 2667 (Admin) concerned an unsuccessful application by Barking & Dagenham College for interim relief to restrain publication of the Office for Students’ decision refusing its application for registration as a higher education provider, and Mr Justice Chamberlain refused the application.
The College, an established provider of vocational, technical and professional education serving a deprived area in East London, had applied in May 2018 to the Office for Students for registration under the Higher Education and Research Act 2017. Registration was not compulsory, but from August 2019 unregistered providers became ineligible for automatic designation of courses for student loans, various types of public funding, Tier 4 sponsorship licences for overseas students and the ability to apply for degree-awarding powers. On 14 August 2019 the Office for Students refused the application, finding that the College did not satisfy condition B3, which required the provider to deliver successful outcomes for all students. The Office for Students relied on three data indicators: student continuation and completion rates, degree and other outcomes including differential outcomes for students with different characteristics, and graduate employment including progression to professional and managerial jobs and postgraduate study. The Office for Students identified continuation rates and progression to graduate employment as areas of concern or significant concern. In its reasons, the Office for Students stated that it assessed performance in relation to student outcomes in absolute terms and would place little if any weight on representations based on student characteristics or context, notwithstanding that the College served a community with higher than average social deprivation.
The College challenged the decision on six grounds. Ground one alleged that the Office for Students wrongly narrowed the test for condition B3 by focusing exclusively on graduate progression and continuation rates calculated according to its algorithm, adopting a narrow rules-based approach it had disavowed in its Regulatory Framework. Ground two contended that the Office for Students gave little or no weight to contextual factors, which was said to be irrational, contrary to its duties under sections 2(1)(b) and 2(1)(g)(i) of the 2017 Act to promote equality of opportunity and act proportionately and transparently, and in breach of the public sector equality duty under section 149 of the Equality Act 2010. Ground three argued that the Office for Students reached its decision on the basis of criteria not made clear at the outset, particularly algorithms not disclosed until the ‘Minded to Refuse’ letter. Ground four claimed that the Office for Students failed to take into account relevant matters, particularly views of independent assessors under previous statutory regimes as to quality of education, continuation rates and outcomes. Ground five complained that the Office for Students reached its decision based on matters, particularly criticisms of the College’s Quality Improvement Plan, which the College had not been given opportunity to address. Ground six contended that the Office for Students breached the College’s rights under Article 1 of Protocol 1 to the European Convention on Human Rights by wrongly and belatedly refusing its application.
Shortly before the hearing the College raised a further issue concerning whether the dataset related to all higher education students or only those on prescribed courses, but Mr Justice Chamberlain declined to take this into account as the Office for Students had no opportunity to respond. The College sought interim relief to restrain publication of the decision pending resolution of the judicial review claim. The hearing was solely concerned with the application for interim relief; permission to apply for judicial review had not yet been considered.
Mr Justice Chamberlain considered that section 12 of the Human Rights Act 1998 applied because the relief sought would affect the right of members of the public, particularly existing and potential students, to receive information which the Office for Students wished to communicate in the exercise of its statutory functions. Section 12(3) required the court to be satisfied that the applicant was likely to establish that publication should not be allowed before granting relief to restrain publication before trial. The judge proceeded on the assumption most favourable to the College that its claim was more likely than not to succeed, thus surmounting the highest threshold section 12(3) could impose.
The judge reviewed the established line of authority addressing interim relief to restrain publication by a public authority of an adverse report, summarised in Taveta Investments Ltd v Financial Reporting Council [2018] EWHC 1662 (Admin). There was significant public interest in publication of reports by public bodies, particularly when under a duty to publish. Grant of an injunction required pressing grounds, the most compelling reasons or exceptional circumstances. Where allegedly defamatory allegations were sought to be restrained, the principle in Bonnard v Perryman applied. The judge disagreed with the submission that these principles should apply less stringently where a public authority acted pursuant to a power rather than a duty, noting that in either case the authority must have turned its mind to whether to publish.
Mr Justice Chamberlain rejected the College’s argument that the Office for Students was under no statutory duty to publish decisions refusing registration. Section 2(1)(g) of the 2017 Act imposed a duty on the Office for Students to have regard to the principle that regulatory activities should be transparent. Moreover, section 3(9) required the register to be made public, from which it was a short step that decisions about which institutions should be entered should also be public unless there was compelling reason otherwise. The judge also rejected the argument that existing students did not need to know of the refusal, holding that the approximately thirty existing students studying for affected courses had an important practical interest in knowing that their continued eligibility for student loans was contingent on success of the College’s application to teach out their courses. Those considering applying to the College had an equally strong interest in knowing the application had been refused, even though the College was unable to accept new students on regulated courses unless and until registered.
The judge accepted that some recipients of the information might misconstrue it as an indictment of the whole of the College’s educational offering rather than as relevant only to regulated higher education courses, but held that this was not a good reason for restraining publication. The College was free to offer its own explanation of the significance of the decision, its flaws as the College saw them, and the fact it was under challenge. Students should be assumed to have the intelligence and maturity to make rational decisions based on all available relevant information, and the court should be slow to deprive them of part of that information. Whilst the judge accepted that publication would cause reputational harm, he had seen nothing to justify the description of the harm as irreparable. If the claim succeeded, the decision would be quashed and the court’s judgment would expose its flaws. The fact that the College played an important part in regeneration plans was if anything a reason favouring transparency. The grounds of challenge, whilst capable of vitiating the Office for Students’ decision if made out, were well within the mainstream for judicial review pleadings and raised no allegation of pre-determination, prejudice or bad faith, distinguishing the case from R (Interim Executive Board of X School) v Ofsted [2017] EMLR 5 where interim relief had exceptionally been granted.
Although expedition could shorten the period during which the decision could cause reputational damage, it would equally shorten the period during which existing and potential students would be kept in the dark. The matters relied upon by the College fell far short of the compelling grounds, most compelling reasons or exceptional circumstances required to justify interim relief to restrain the Office for Students from publishing its decision. In short, the application for interim relief to restrain publication was refused because the substantial public interest in transparency and in existing and potential students receiving relevant information about the College’s failed registration application outweighed any reputational harm that publication might cause.
Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253
Taveta Investments Ltd v The Financial Reporting Council & Ors [2018] EWHC 1662 (Admin)
Management v Ofsted [2013] EWHC 1157
R (City College Birmingham) v O fsted [2009] ELR 500
R (Matthias Rath BV) v Advertising Standards Authority [2001] EMLR 22
R(J) v A [2005] EWHC 2609
ex parte Vernons Organisation Ltd [1992] 1 WLR 1289
Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457
R (Interim Executive Board of X School) v Ofsted [2017] EMLR 5
Re S (FC) (a child) [2004] UKHL 47, [2005] 1 AC 593, [2004] 3 WLR 1129, [2004] 4 All ER 683