Ronald Fletcher Baker becomes the first law firm to successfully challenge the Office for Student’s (‘OfS’) refusal to register a provider.

R (on application of Bloomsbury Institute Limited) -v- Office for Students (2020) EWCA Civ 1074

In its decision handed down on 14 August 2020, the Court of Appeal quashed the OfS’ decision dated 23 May 2019 (the ‘Decision’)to refuse to register the Bloomsbury Institute Limited (‘Bloomsbury’) and concluded that the conduct of the OfS during its decision-making process was unlawful.

A copy of the judgement can be found via the following link: https://www.judiciary.uk/judgments/bloomsbury-institute-limited-v-office-for-students-2/

Bloomsbury was founded in 2002 and is a college which provides higher education to its students. In 2018-2019, 88% of Bloomsbury’s students were enrolled on 4-year degree courses which included a first year, a Foundation Year, whereby such Foundation courses were designed for students who do not have any A-Levels. With approximately 85% of their students are mature students, 66% are BAME, 16% are disabled and 90% of them coming from families earning less than £25,000 per annum, their mission at Bloomsbury is to serve and ensure that disadvantaged students with barriers to access do have access to higher education.

Rudi Ramdarshan of Ronald Fletcher Baker was instructed by Bloomsbury to assist in challenging the Decision of the OfS by Judicial Review. In his decision on 13 March 2020, Mr Justice Cavanagh found against the challenge. Ronald Fletcher Baker, together with the team at Matrix Chambers (Jessica Simor QC, Chris Buttler and Eleanor Mitchell) proceeded by lodging an application in the Court of Appeal to challenge the decision of Mr Justice Cavanagh.

The focus of the appeal was a secret document titled Framework for Making Registration Decision (the ‘DMG’). The DMG specified the method by which the OfS would assess compliance with condition B3.

The Decision of the Court of Appeal

On 30 July 2020 the Court of Appeal, comprising of Lord Justice Bean, Lord Justice Males and Lady Justice Simler, allowed Bloomsbury’s appeal and directed for the Decision of the OfS refusing Bloomsbury’s application for registration be quashed.

Firstly, the Court of Appeal determined that an objective interpretation of the Scheme of Delegation did not permit the setting of the B3 baselines by the Director of Competition and Registration. It was a policy decision and not an operational decision.

Secondly, the Court of Appeal found that the OfS had failed to publish and consult on the DMG which was ultimately kept a secret from higher education providers. At paragraph 71 of the judgment, Lord Justice Bean expressed that ‘the failure even to publish it [the DMG], still less to consult on it when it was at the formative stage, constituted clear unfairness in the treatment of Bloomsbury’.

Partner Rudi Ramdarshan who lead the team at Ronald Fletcher Baker LLP said, “over the past year I have come to know the inner workings of Bloomsbury and seen first hand its commitment to provide education to disadvantaged students. I have seen how difficult the initial decision has been on the institute, its students and staff. I am delighted that the decision and look forward to finding a swift conclusion to the matter with the OfS which will see Bloomsbury continue with its mission”.  

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