University of Sussex succeeds in judicial review of Office for Students' £585,000 fine

The University of Sussex has successfully challenged the Office for Students' (OfS) decision to find it in breach of two registration conditions and impose a £585,000 monetary penalty. In The University of Sussex v The Office for Students [2026] EWHC 984 (Admin), handed down on 29 April 2026, Mrs Justice Lieven quashed the Final Decision on multiple grounds, finding errors of jurisdiction, legal misdirection, and — most significantly — predetermination by the OfS.

Background

The investigation arose from protests in October 2021 targeting Professor Kathleen Stock, a gender-critical philosopher at the University, who resigned shortly afterwards. The OfS opened an investigation into the University's compliance with registration conditions E1 (upholding public interest governance principles, including freedom of speech and academic freedom) and E2(i) (operating in accordance with governing documents). The University's Trans and Non-Binary Equality Policy Statement ("TNBEPS") lay at the heart of the findings, which spanned several versions of the policy between 2019 and 2024.

Governing documents: a jurisdictional error

The Court accepted the University's primary argument that the TNBEPS was not a "governing document" within the meaning of s.14(1) of the Higher Education and Research Act 2017 ("HERA"). Applying the approach in For Women Scotland v Scottish Ministers [2025] UKSC 16, Lieven J held that the ordinary and natural reading of "governing documents" pointed towards a narrow construction — instruments setting out the institution's constitution and governance, such as its Charter and Statutes, rather than operational policies.

The legislative history was decisive. The Green and White Papers, the Impact Assessment, and the Explanatory Notes all pointed to Parliament's intention to transfer the Privy Council's oversight of governing documents to the OfS without expanding its scope. A ministerial statement at Committee Stage, rejecting an amendment to include "practices" alongside governing documents, was described by the Court as a shorthand for much that had gone wrong in the OfS's approach. The OfS's alternative argument — that the broad power in s.5 of HERA permitted condition E1 to apply to a wider class of document — was rejected on the principle that a general power cannot override a specific statutory provision.

Freedom of speech: legal misdirection

The Court found that, even if the TNBEPS had been a governing document, the OfS had misdirected itself in finding a breach of the freedom of speech public interest governance principle. The OfS had treated the mere capacity of the policy to capture lawful speech as sufficient to establish a breach, an approach the Court characterised as "absolutist". By the time of the Final Decision, the OfS itself accepted — through the three-stage framework in its Regulatory Advice 24 — that restrictions on lawful speech can be justified where it is not reasonably practicable to protect it or where such restriction is proportionate under Article 10(2) ECHR. The OfS had failed to apply that framework. It had also failed to read the Policy Statement as a whole alongside the University's Freedom of Speech Code of Practice, which its own guidance described as the institution's "definitive" statement on freedom of speech.

On academic freedom, the Court held that the PIGP requires an academic to be "in jeopardy" of losing their job or privileges — not merely at risk of disciplinary proceedings being initiated. The OfS's finding that the risk of stress, anxiety, or reputational damage from proceedings was sufficient was an error of law.

Predetermination

The most far-reaching finding concerned the lawfulness of the process itself. Lieven J found that the OfS had approached the investigation with a closed mind, determining from the outset to use the University as a test case to incentivise sector-wide compliance. Five indicators were identified: the strategy of treating the University as an example to the sector; the refusal to engage in settlement discussions unless the University admitted the alleged breaches in full; the failure to pursue other institutions using identical policies; the failure to engage with the Freedom of Speech Code of Practice; and the refusal to consider whether the breaches had been remedied by the time the Final Decision was issued — despite the 2024 revisions to the TNBEPS being before the OfS for ten months. The independent committee (the USCEC) did not provide sufficient insulation, having adopted the investigation team's recommendations in their entirety without contemporaneous evidence of independent scrutiny.

The role of Dr Arif Ahmed — appointed to lead the investigation team in October 2024 despite an earlier determination that he was conflicted by reason of his prior public support for Professor Stock and criticism of the University — was considered. The Court declined to find vitiating personal bias on his part, given that he was not the decision-maker and joined after the Provisional Decision had been issued, but noted it would likely have reached a different conclusion had he been the decision-maker.

The University's appeal to the First-tier Tribunal, which had been stayed pending this claim, remains outstanding.