R (Hurley) v Secretary of State for Business Innovation and Skills  EWHC 201
Subjects: Education – Public Sector Equality Duty – Race and Disability
Cs were students who aspired to study at university. They sought to challenge by way of JR D's decision to increase the maximum amount which universities were permitted to charge students to £9,000. They challenged the decision on the basis that the decision was contrary to the right to education in Articles 2 and 14 of Protocol 1 of the European Convention on Human Rights and was in breach of the public sector equality duty. The High Court held that the decision did breach the public sector equality duty. This summary focuses on the disability issues only.
Elias J held that D had not given proper consideration to the public sector equality duty. The focus of the equality impact assessment had been on persons with protected characteristics in lower socio-economic groups. This was not the same as considering the issues in respect of each characteristic. The evidence did not show that the EIA in this case had considered the full package of reforms.
While D had not given rigorous attention to the overall package of measures the particular decision to fix fees at the level reflected in the regulations had been the subject of appropriate analysis. Furthermore interested parties, such as universities, students and the government had all made plans based on the assumption that fees would be charged and it would cause administrative chaos and have significant economic implications if the regulations were to be quashed. This, combined with the fact that there had been substantial compliance with respect of the fee structure, meant that a quashing order was inappropriate.
Although Article 2 of Protocol 1 was engaged and the fee structure did restrict that right it was a proportionate means of achieving a legitimate aim. Elias J stated that only in exceptional cases would the charging of fees in a non-discriminatory fashion result in a breach of the right. Article 14 was not breached. There was no indirect discrimination in the provision of higher education. The package had to be considered in the round. The availability of finance in respect of fees and other measures mitigated the effect of the increase in fees and so it was not sufficiently clear that Cs as a group would be disadvantaged.
Where the quashing of a decision would have very significant practical consequences the court is unlikely to grant a quashing order. This judgment also emphasizes the importance of considering the facts as a whole. The decision may have been only one part of a broader decision dealing with a variety of matters and which, when taken as a whole, meant that the effect ofthe measure in question was mitigated or diminished.