When Regulators Overstep: Lessons From Sussex v OfS

In R (University of Sussex) v Office for Students [2026] EWHC 984 (Admin), the High Court quashed the decision of the Office for Students (the OfS) to find the University of Sussex (the UoS) in breach of two conditions of registration and to impose a £585,000 fine.

The OfS had concluded that the UoS had breached certain conditions of registration set out in its regulatory framework, including that the UoS’s Trans and Non-Binary Equality Policy Statement (the TNBEPS) breached condition E1 (relating to freedom of speech and academic freedom). The fine was imposed regarding the TNBEPS, using the OfS’s powers under the Higher Education and Research Act 2017 (HERA).

Key points

• Regulators must approach their functions with an open mind. Evidence that a regulator was keen to find a breach to send a signal to the rest of the industry such that it closed its mind to considerations pointing against a finding of breach will leave it open to allegations of predetermination. 
• Remediation is likely to be a mandatory material consideration at enforcement stage. In this case it was inappropriate to press ahead with punitive findings and substantial penalties without squarely addressing whether the entity had already remedied the issue.
• Statutory thresholds must be applied precisely; regulators cannot expand the reach of a legal test to capture broader perceived harms.

Background

The dispute centred on the TNBEPS, which went through numerous versions, each with the same opening wording and the same intent not to discriminate against people on the grounds of their gender identity. The 2018 version was the only version that contained a “Positive Representation Statement”, requiring relevant course materials to “positively represent trans people and trans lives”, alongside disciplinary provisions addressing abuse, bullying, and “transphobic propaganda”.

Events surrounding a self-described gender-critical feminist academic, including protests against that academic's employment, triggered the OfS’ investigation. In October 2021, the OfS requested an explanation of actions taken by the UoS to “ensure that free speech and academic freedom are not being explicitly or implicitly curtailed”. The OfS subsequently opened a formal investigation.

In 2022, the UoS amended the TNBEPS to remove the Positive Representation Statement and soften some wording regarding stereotyping, such that the curriculum was no longer subject to an absolute prohibition on reinforcing stereotypes but was instead required to “seek to” avoid doing so. In 2023, the UoS amended the TNBEPS again, adding a “Safeguarding Statement” expressly tying the policy to its free speech and academic freedom duties, and stating that nothing in the TNBEPS should justify disproportionate restrictions on freedom of speech.

Further revisions were made in 2024 which the UoS claimed remedied the issues entirely. The OfS was alleged not to have taken this version into consideration in its final decision-making and therefore to have erred in not addressing whether the breaches had been remedied.

The OfS issued a provisional decision in March 2024 and, after receiving representations, a final decision in March 2025, finding historic breaches of two conditions and imposing a £585,000 fine. The UoS brought a claim for judicial review.

Judgment

In a lengthy judgment the High Court found in favour of the UoS and quashed the fine. Some of its key conclusions were as follows:

1. The UoS succeeded on the central jurisdictional question as to whether the TNBEPS constituted a “governing document” so as to engage s.14 HERA and condition E1. The OfS argued that HERA was a new, single regulatory regime intended to have a broad reach, necessitating a broad interpretation of the term. Further, for the OfS to be effective, the meaning needed to be sufficiently wide and flexible to ensure that relevant documents fell within the scope of the OfS's regulatory remit. Giving the term a narrow interpretation would, it said, restrict the OfS's ability to ensure compliance and uphold the principles in HERA. As a matter of statutory construction, however, Lieven J held that the OfS misdirected itself. “Governing documents” is to be narrowly construed, both on its ordinary meaning and in light of the legislative history. The TNBEPS, as an equality policy statement, did not fall within that meaning. The court considered that the OfS’ interpretation would be so broad as to be almost unworkable as it would capture a huge range of documents. 
2. The court endorsed a three-step framework for assessing "freedom of speech within the law”: (1) is the speech within the law; (2) is it reasonably practicable to protect the speech; and (3) whether restrictions are prescribed by law and the proportionality test, but noted steps two and three will often be based on similar factual issues and may therefore elide. In the circumstances the OfS misdirected itself on whether certain versions of the TNBEPS failed to protect freedom of speech within the law. On academic freedom, the court held that the OfS erred in law by expanding the test of protection for staff against “jeopardy of losing their job or privileges” to encompass disciplinary exposure, stress, anxiety, reputational effects and other concerns, none of which fell within the statutory language.
3. The court found that the OfS failed to treat current compliance and remediation as mandatory material considerations when deciding whether action was needed and when imposing a substantial fine. The OfS was subject to statutory duties to undertake regulatory activities in a proportionate manner, targeting only where action was needed, and its own guidance confirmed that the primary purpose of enforcement is to secure compliance, with escalation warranted where breaches are not remedied in a reasonable timescale. In this case, 10 months passed between the 2024 Policy Statement and final decision; a need for finality in the process did not justify ignoring the remediation efforts. Further, the OfS’s attempt to rely on incentivisation of other providers as a response to this Ground was deemed “extremely odd”; the desire to send a signal to the sector was not a lawful basis for proceeding to a decision if the breach had already been remedied.
4. The OfS’s decision was invalidated by unlawful predetermination and a failure to approach its decision with an open mind. Lieven J pointed to a number of indicators of a closed mind on the part of the OfS, including its deterrence strategy, its settlement stance, and its overarching strategy from the outset of looking for a test case that would send “a strong signal”. As noted above, the OfS did not take into account whether the UoS had remedied the breach but rather that, whether it had done so or not, a finding of breach would provide a strong incentive to other providers. Importantly, the OfS refused to enter into settlement negotiations unless the UoS accepted the alleged breaches in their entirety. While, in principle, placing conditions on a meeting is not determinative of a closed mind, on the facts the court held that this was strongly indicative of the OfS’s determination to find significant breaches by the UoS to further the objective of its investigation. A third indicator of the OfS’s closed mind was its failure to investigate other universities that had adopted identical policies to the UoS. Rather, the OfS wrote to those other universities only after the final decision was published, highlighting the breach and the fine. This is, again, strongly indicative of a determination to pursue a strategy which rested upon finding breaches.

Comment

Although the judgment concerns a specific regulatory scheme in the education sector, its reasoning has broader application across regulated industries.

The case confirms that enforcement must be anchored to the relevant legislation and applied proportionately. Where a regulatory regime is designed to assess and secure ongoing compliance, any punitive decision will be vulnerable to challenge if the regulator has not considered whether the issues have been remedied.

More generally, regulators may lawfully set an enforcement strategy, but they cannot approach decisions with a predetermined outcome. Regulated entities should be alert to warning signs that may indicate this: a regulator characterising its own investigation as a test case or deterrence vehicle; settlement terms that are conditional on admitting all alleged breaches; and a failure to investigate comparable entities or pursue sector-wide guidance as an alternative. 

Where a regulator oversteps its jurisdiction, disregards material factors such as remediation, or approaches an investigation with a closed mind, its decision is clearly open to be quashed.

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