The Administrative Court’s judgment in R (University of Sussex) v Office for Students [2026] EWHC 984 (Admin) provides an important reminder of the need for a regulator to balance a deterrence and compliance strategy with the fundamental public law requirement to approach issues with an open mind. Regulatory decisions can be quashed where the enforcement process shows apparent bias or predetermination, particularly where an investigatory team’s approach infects the decision-maker’s final decision (FD). Although specific to the higher education sector, this decision has a broader read-across to other regulators.  

Background

The University of Sussex (the University) challenged a decision by England’s higher education watchdog, the Office for Students (OfS) to impose a £585,000 fine relating to a finding of breach of two registration conditions under the Higher Education and Research Act 2017. The claim succeeded on multiple grounds and the FD was quashed.

The Court’s approach

The key issue was whether OfS had a closed mind regarding the outcome of its investigation, such that the FD was vitiated by predetermination. In its assessment, the Court found it “necessary to go through each stage”[1] outlined below to decide whether OfS reached its decision with a sufficiently open mind. It ultimately determined that the “fair-minded, informed and not unduly suspicious observer” (from the test in Porter v Magill)[2] would conclude that there was a real possibility that the decision-maker was biased.[3] The five-step framework set out in the judgment may inform future allegations of predetermination in the regulatory context:[4]

1. The regulator’s overarching approach and strategy from the opening of the investigation
   The Court acknowledged the established principles that “a regulator can have a strategy” and “looking for a test case is not in itself wrong”.[5] However, the Chief Executive of OfS’ strategy, which was a “fixed intent” to make a finding of breach, impose a sanction and draw a high level of publicity to create compliance incentives and deterrence, was held to be the wrong starting point for a fair investigative process.[6] Lieven J noted that this individual was not the decision-maker, but shaped the investigation through  “intense and overarching” involvement.[7]
2. Approach to settlement negotiations
   The regulator refused to meet with the University to discuss settlement unless the University accepted the alleged breaches in their entirety, which the Court treated as part of the overall picture on closed mind.
3. Approach to other higher education providers using the same policy
   OfS’ intent to use the University as an example to incentivise other universities strongly indicated a determination to pursue a strategy which rested upon finding significant breaches by the University. The Court noted that it was only after the FD that OfS wrote to other universities highlighting its enforcement action.
4. Failure to refer to key material
   OfS’ failure to engage with relevant material relied on by the University, which was central to the regulatory framework and assessment of compliance, was treated as highly indicative of a closed mind.
5. Failure to consider recent compliance efforts
   OfS’ failure to consider the University’s recent policy amendments evidenced predetermination because a conclusion that the breaches had been remedied would have undermined the regulator’s strategy, to which it had invested significant time and resource. Achieving a speedy decision did not justify OfS’ failure to have regard to the updated policy, given it took 10 months to consider the amendments and issue the FD in the absence of any evidence that the University had deliberately delayed the process through its changes.

Best regulatory practice duty 

The University also argued that OfS’ failure to consider or give credit for its 2024 policy revisions, which it considered to be a key remedial step, made the finding of breach unlawful. The Court agreed, noting that “whether the breach has been remedied was a mandatory material consideration” due to the regulator’s duty to target activities only at cases where action is needed.[8] This duty – often referred to as the best regulatory practice duty – appears in a wide range of regulatory frameworks including water and energy, among others. The Court held that it still would have been the wrong approach to consider the remedial action only after the finding of breach was made, when determining the penalty. Refusing also to consider the up-to-date facts when imposing a significant fine made the error “more egregious”.[9]

Wider relevance of the decision

Challenges to a regulator in areas of evaluative judgement – those areas “where reasonable people can disagree”[10] – is a difficult task. This is illustrated in our top ten takeaways on judicial review cases. However, this case shows that courts are prepared to intervene in cases involving traditional procedural fairness concerns: where apparent bias is alleged, the court will not defer to the regulator and will closely scrutinise the process.