R Hurley and Moore v Secretary of State for Business Innovation & Skills
| Jurisdiction | England & Wales |
| Judge | Mr Justice King,Lord Justice Elias |
| Judgment Date | 17 February 2012 |
| Neutral Citation | [2012] EWHC 201 (Admin) |
| Docket Number | Case No: CO/2532/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 February 2012 |
[2012] EWHC 201 (Admin)
Lord Justice Elias
Mr Justice King
Case No: CO/2532/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Helen Mountfield QC and Professor Aileen McColgan (instructed by Public Interest Lawyers) for the Claimants
Mr Jonathan Swift QC and Miss Joanne Clement (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 1 and 2 November 2011
The claimants are students in the lower sixth form who wish to go to University. They seek by way of judicial review to challenge the decision to allow institutes of higher education (hereinafter "universities") to increase fees up to £9000 per year. The increases were effected by two regulations, the Higher Education (Basic Amount) Regulations 2010 (SI 2010/3021), and the Higher Education (Higher Amount) Regulations 2010 (SI 2010/3020) (collectively referred to as "the 2010 Regulations"). The claimants seek to have these regulations quashed.
The 2010 Regulations were made pursuant to the power under section 24 of the Higher Education Act 2004 ("the 2004 Act"). In accordance with the requirements of sections 26 and 47 of that Act, the regulations were approved by an affirmative resolution of each House of Parliament. The Regulations will come into force on 1 September 2012.
Section 24 of the 2004 Act permits the Secretary of State to make regulations which set the "basic amount" and the "higher amount" of fees which the University may charge for a qualifying course. The difference between the two is that in order to charge above the basic amount a University must have in place a plan made pursuant to section 33 of the 2004 Act, which is approved by the Director of Fair Access to Higher Education. The 2010 Regulations set the maximum chargeable under the basic amount at £6,000, and the maximum under the higher amount at £9,000. These are significant increases from the current rates which fix the basic amount at £1,310, and the higher amount at £3,290.
The grounds of challenge.
The claimants contend that the 2010 Regulations are unlawful on each of the following grounds:
(1) The decision to increase the permitted limit for the basic and higher amounts is contrary to the right to education conferred by Article 2 of Protocol 1 of the European Convention on Human Rights ("A2/P1"); alternatively is contrary to that provision when read with Article 14 of the Convention. The thrust of the argument is that the new rules will have a chilling effect on the ability of those from disadvantaged social backgrounds to take up university places.
(2) The decision was made in breach of the requirements of the public sector equality duties ("the PSEDs") imposed by the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995.
The Secretary of State resists this challenge. He contends that the decision to charge fees was combined with a range of associated measures which, taken together, ensure that there is a real and effective right of access to higher education. These measures also ensure that those from socially disadvantaged backgrounds will not be discouraged from taking advantage of university education or otherwise disproportionately affected by the changes.
As to the contention that the Secretary of State infringed the PSED, the Secretary of State submits that in fact the analysis was substantial, rigorous and open-minded. It followed a year-long independent review of higher education funding and student funding by Lord Browne of Madingley ("the Browne Review") who had focused intensively on ways to ensure that those from socially disadvantaged backgrounds (a proxy for prospective students from minority ethnic groups and the disabled) would be encouraged to go to University notwithstanding the increase in fees.
The background.
The funding of higher education has posed problems for successive governments, certainly since the 1960s. Participation in higher education has increased dramatically during this period, rising from around 100,000 full-time equivalent students in the 1960s to just under 2 million in 2007. The United Kingdom has moved from a system under which the entire bill for higher education was funded from general taxation to one in which part of the cost—and in some cases a very significant part—is borne directly by persons who have received higher education.
This change has been reflected not only in relation to payment for tuition, but also in relation to the costs of maintaining students at university. As to the latter, maintenance grants were reduced substantially in 1998 and were replaced by maintenance loans in 1999. Maintenance grants were then reintroduced for the poorest students in 2004, and were significantly increased in 2006.
Tuition fees for degree courses were introduced for the first time by the Teaching and Higher Education Act 1998. Fees payable were means-tested on the basis of parental income, and were in any event capped (at £1,000 per annum). They were payable in advance.
The system currently in place, and which will apply until the 2010 Regulations take effect, was introduced by Part 3 of the 2004 Act. This modified the system of tuition fees with effect from 2006. As I have said, it provides for the imposition of maximum higher and basic fees with the former chargeable only if a plan approved by the Director of Fair Access is in place.
However, payment of tuition fees is not up-front; it is deferred until studies are completed and repayment is then made by instalments once a student obtains employment. There is no obligation to repay anything until the salary is at least £15,000. The fees rise with inflation. Since 1 September 2010 the basic amount has been £1,310, and the higher amount has been £3,290: see Student Fees (Amounts) (England) Regulations 2004, as amended.
A significant element of the approved plan is that it imposes an obligation on Universities to take steps to widen access. The plan must include such provisions promoting equality of opportunity in connection with access to higher education as are specified in regulations made by the Secretary of State; and it may include other provisions promoting equality of opportunity in connection with access to higher education: see section 33(2) of the 2004 Act. Section 33(5) then identifies the matters which may be included in the regulations made by the Secretary of State.
The current regulations governing approved plans are the Student Fees (Approved Plans) Regulations 2004 (SI 2004/2473). These include the following provisions:
"3. A plan must include provisions requiring the governing body of the institution to do the following–
(a) to take, or secure the taking of, the measures set out in the plan in order to attract an increased number of applications from prospective students who are members of groups which, at the time when the plan is approved, are under-represented in higher education;
(b) to provide, or secure the provision of, bursaries and other forms of financial assistance set out in the plan to students undertaking a course at the institution;
(c) to make the arrangements set out in the plan to make available to students undertaking a course at the institution and prospective students wishing to undertake such a course information about financial assistance available to them from any source;
(d) to make the arrangements set out in the plan to inform any prospective student before he commits himself to undertake a course at the institution of the aggregate amount of fees that the institution will charge for the completion of the course;
(e) to monitor in the manner set out in the plan its compliance with the provisions of the plan and its progress in achieving its objectives set out in the plan by virtue of regulation 4; and
(f) to provide the Director with such information as he may reasonably require from time to time.
4. A plan must set out the objectives of the institution, determined by its governing body, relating to the promotion of equality of opportunity."
The review conducted by Lord Browne.
In November 2009 the then Labour Government (with cross-party support) asked an independent panel, chaired by Lord Browne of Madingley, to undertake a review of the funding of higher education, and to make recommendations as to the steps required to ensure (a) sustainable financing of teaching consistent with maintaining high quality teaching; and (b) that the institutions of higher education remained accessible to persons with the talent to succeed.
In assessing options, the Review was expected to take into account (a) the goal of widening participation to ensure that the benefits of higher education are open to all who have the talent and motivation to succeed, to avoid the creation of barriers to wider access and to promote fair access to all institutions; (b) affordability for students and their families during their studies and afterwards, and the impact on public finances including affordability, sustainability and value for money for the taxpayer; and (c) the desirability of simplification of the system of support.
The panel consulted widely taking written and oral evidence from a broad range of bodies including students, prospective students, teachers, academics, employers and regulators. The Review Panel was supported in its work by an Advisory Forum, made up of 24 groups representing the interests of...
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