University - Fees - Rate of fees

R (on the application of Hurley and another) v Secretary of State for Business, Innovation and Skills: Queen's Bench Division, Administrative Court (London) (Lord Justice Elias and Mr Justice King): 17 February 2012

The claimants were students in the lower sixth form who wished to go to university. The Higher Education (Basic Amount) Regulations 2010, SI 2010/3021 and the Higher Education (Higher Amount) Regulations 2010, SI 2010/3020 (together the Regulations) were made pursuant to section 24 of the Higher Education Act 2004 and were due to come into force on 1 September 2012.

The Regulations were formulated following an independent review of the funding of higher education and were approved by an affirmative resolution of each House of Parliament. They set the maximum fees chargeable by universities at £6,000 a year under the 'basic amount' and £9,000 under the 'higher amount'. That represented a significant increase from the then current rates. The changes were introduced alongside a package of measures which were designed to provide greater assistance to students from low income backgrounds. The claimants applied for judicial review of the decision, through the Regulations, to allow universities to increase fees up to £9,000 per year.

The claimants contended first, that the decision to increase the permitted limit for the basic and higher amounts had been contrary to the right to education conferred by article 2 to the First Protocol of the European Convention on Human Rights; the effect of the particular arrangements was to impose an unjustified restriction on the right of access to higher education so as to constitute a breach of article 2 to the First Protocol.

Alternatively, the decision had been contrary to that article when read with article 14 of the Convention due to the disparate impact it would have upon those from disadvantaged social backgrounds (the further argument). Secondly, the claimants contended that the decisions had been reached in breach of the requirements of the public sector equality duties (PSEDs) imposed by the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. The defendant secretary of state relied on an interim equality impact Assessment and an Interim Impact Assessment, which he contended had provided a full assessment of the draft regulations laid before parliament and the package of measures, as evidence of compliance with the PSEDs. The application would be dismissed.

(1) A restriction would be disproportionate only if it in fact denied an applicant the essence of the right in issue. It would take a very exceptional case indeed before it could be said that the charging of fees of itself, absent discrimination, deprived the right to education of effectiveness at least where loans were made available to those who needed them. The fact that someone might be temperamentally or psychologically disinclined to accept a student loan and enter into debt did not justify the conclusion that the right to higher education of such a person had been effectively denied or unjustifiably restricted (see [41], [42] of the judgment).

In the instant case, the restrictions imposed had been a proportionate means of achieving a legitimate objective. As to the further argument, in the circumstances, it would be wrong for the court to find a disparate impact where there was neither an obvious, nor even a strong inference, from the facts. The clear adverse impact which the claimants had had to establish in order for the further submission to get off the ground had not been shown to the satisfaction of the court.

In any event, the objective had been a legitimate one and the means of achieving that objective had been justified. The secretary of state had considered that in order to provide the secure funding for the expanding sector of higher education, fees needed to be charged.��He had had regard to the potential impact on the poorer households and had taken a series of steps actively to address that problem. Various other proposals had been considered and cogent reasons had been given for rejecting them. In those circumstances the court could not properly find that the decision had been unjustified (see [54], [65] of the judgment). Ashingdane v United Kingdom [1985] ECHR 8225/78 applied; Sahin v Turkey (Application No 44774/98) [2005] ECHR 44774/98 considered; Ponomaryov v Bulgaria [2011] ECHR 5335/05 considered.

(2) The decision maker had to be clear precisely what the equality implications were when he put them in the balance, and he had to recognise the desirability of achieving them, but ultimately it was for him to decide what weight they would be given in the light of all relevant factors (see [78] of the judgment).

In the instant case, whilst the secretary of state had not given the rigorous attention required to the package of measures overall, and to that extent the breach had not been simply technical, the particular decision to fix the fees at the level reflected in the Regulations had been the subject of appropriate analysis. In the circumstances, there had been very substantial compliance in fact, and an adequate analysis of the implications of the fee structure itself on protected groups. Those considerations had reinforced the conclusion that quashing the orders would not be appropriate (see [99] of the judgment).

A declaration would be granted to the effect that the secretary of state had failed fully to carry out his PSEDs before implementing the Regulations. However, the Regulations would not be quashed (see [100] of the judgment). R (on the application of Elias) v Secretary of State for Defence [2006] All ER (D) 104 (Oct) considered; R (on the application of Brown) v Secretary of State for Work and Pensions [2008] All ER (D) 208 (Dec) considered; R (on the application of Baker) v Secretary of State for Communities and Local Government [2008] All ER (D) 412 (Feb) considered.

Helen Mountfield QC and Professor Aileen McColgan (instructed by Public Interest Lawyers) for the claimants; Jonathan Swift QC and Joanne Clement (instructed by the Treasury solicitor) for the secretary of state.