Court quashes college’s bid to silence OfS on register refusal

Barking and Dagenham College loses injunction bid on publication but has also filed judicial review over refusal

October 11, 2019

The English higher education regulator has released its decision to refuse a further education college’s registration application – blocking it from access to student loans – after the institution unsuccessfully sought an injunction to prevent publication.

Barking and Dagenham College has filed a judicial review against the Office for Students’ decision to refuse registration on the grounds that the college had failed to meet conditions controlling the quality of student outcomes, court papers published by the regulator show.

The college had also sought an injunction preventing the OfS from publishing its decision. But the decision has now been published after a High Court ruled against the college in its injunction bid.

However, there has not yet been a ruling on the college’s judicial review challenge.

The case will raise the question of how many other further education or for-profit colleges – the only types of institution refused registration to date – have sought to challenge OfS registration refusals in the courts.

The OfS has sent “minded to refuse” letters to 20 providers but has published only six refusal decisions on its website so far.

The court papers show that Barking and Dagenham College’s grounds for challenge in the judicial review case included a claim that the OfS focused “exclusively on graduate progression and continuation rates, calculated according to its algorithm, thereby adopting a ‘narrow rules-based approach’ of the kind it had itself disavowed in its regulatory framework”, and that it “gave little or no weight to contextual factors”.

In terms of the injunction on publication of the refusal decision, the college had argued that “the reputational damage that would be caused by publication would be ‘widespread and irreparable’”, the court papers show. “Publication would lead students, employers and partners to lose confidence in the college.”

But a High Court judge, Mr Justice Chamberlain, ruled that the decision could be published because the OfS has “a duty to have regard to the principle that regulatory activities should be transparent” and “those considering applying to study at the college have an equally strong interest in knowing that the college’s application for registration has been refused”.

About 30 students are currently enrolled at the college on higher education courses with student loan funding, the court papers say.

Susan Lapworth, director of competition and registration at the OfS, said: “We welcome the court’s judgment, which allows us to publish an important regulatory decision in the interests of current and prospective students. This means that all students will have the information necessary to make informed choices about their studies. The OfS is prepared to defend vigorously the interests of students through the courts and, as in this case, we will seek to recoup the costs of such litigation.

“The Office for Students is working with the college in order for it to have the opportunity to apply to ‘teach out’ its current students. Being granted designation for teach out would mean that continuing students, subject to individual eligibility, would be able to continue to access student support from the Student Loans Company.”

Yvonne Kelly, the college’s principal, told Tes that she was “very proud” of her institution’s role in widening participation.

“Removal of our direct HE funding reduces the opportunities for our community and marginalises the people within it,” she said.

“Our priority, as ever, is our students and our staff, and we will do everything we can to minimise any impact on them arising from the OfS’ decision.”

john.morgan@timeshighereducation.com

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