High Court upholds University Fees Regulations

February 22nd, 2012 by Tom Cross

The High Court this morning handed down judgment in R (on the application of Hurley and Moore) v Secretary of State for Business Innovation and Skills) [2012] EWHC 201 (Admin), in which sixth form students hoping to go to University challenged the Secretary of State’s decision, made through Regulations (SI 2010/3021 and 2010/3022) to allow universities significantly to increase their fees.
The decision to make the Regulations had been preceded by an independent review into university fees chaired by Lord Browne of Madingley. Under the Regulations, the fees which universities are entitled to charge go up to £9000 per year (if they have in place a plan approved by the Director of Fair Access to High Education), or to £6000 in other cases. Previously, the maximum charge in any case was £3,290. The student is not obliged to pay the fees back, however, until his or her studies are completed and his or her salary in employment exceeds £21,000 a year. The Secretary of State’s view is that a quarter of graduates will repay less over their lifetimes than they would do under the present arrangements.
Two grounds of challenge were advanced on behalf of the students.
It was argued, first, that the fees increase brought about by the Regulations was contrary to the right to education in Article 2 of the First Protocol to the ECHR (including if read together with the non-discrimination provision in Article 14). The primary argument was that the almost threefold increase in the size of the fees constituted a limitation on access to education which was disproportionate to the aim the Government was seeking to achieve. It was further claimed that the new funding arrangements indirectly discriminated against those from the lower socio-economic groups.
Elias LJ, giving the lead judgment, rejected both arguments, commenting that it would “take a very exceptional case indeed before it can be said that the charging of fees of itself, absent discrimination, deprives the right of its effectiveness at least where loans are made available to those who need them” (see para [42]). As to Article 14, the Court held that it could not be inferred from the evidence that the Regulations would, in fact, disparately impact on students from the lower socio-economic groups (paras [52] and [54]). Even if that was wrong, the Regulations could still be justified notwithstanding any discriminatory effect. Their objectives derived from the Browne analysis; namely to achieve the sustainable funding of high quality higher education and to secure that education is open to students who have the talent and motivation to succeed (but not simply “to save money”) (see paras [59], [61] and [62]). This was an area of macro-economic judgment involving prioritising particular public resources; significant leeway should be given to the Secretary of State in exercising it (para [63]).
The second ground of challenge was that the decisions to adopt the Regulations breached the Public Sector Equality Duties (“PSED”) which were found, at the material time, in s.71 of the Race Relations Act 1974 and s.49(1) of the Disability Discrimination Act 1995. In response, the Secretary of State relied on impact assessments which drew on material garnered as part of the Browne review.
Elias LJ held that there had on any view been very substantial compliance with the PSED (see [95]), but went on, at paragraph 96:
“However, I accept that if there is any doubt about whether a particular statutory objective is engaged, the issue needs to be explored before any conclusion can be safely reached that it is not. Insofar as the EIA purported to focus on the full package of reforms then under consideration and not merely the decision to increase fees, I cannot be sure that this has been done. I cannot discount the possibility that a more precise focus on the specific statutory duties might have led to the conclusion that some other requirements were potentially engaged and merited considerations…”
He “therefore conclude[d] that the Secretary of State did not carry out the rigorous attention to the PSEDs which he was obliged to do”, but was “satisfied that he did give proper consideration to those particular aspects of the duty which related to the principle of levying fees and the amounts of those fees”. Since the challenge was directed against the aspect of the Regulations which increased fees, it was not appropriate to grant all the relief which the Claimants were seeking (including a wholesale quashing of the Regulations), but it was appropriate to make a declaration to the effect that the Secretary of State had failed fully to carry out his PSEDs before implementing the Regulations. That was also because it would cause “administrative chaos” to quash (see paras [97] and [99]).
The Regulations remain set to come into force on 1 September 2012.

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