Five English universities – Bath Spa University, Buckinghamshire New University, Leeds Trinity University, London Metropolitan University, and Southampton Solent University – sought a judicial review of the Secretary of State’s decision that a full-time in-person higher education course could not be delivered solely on weekends.
They were not granted permission to claim judicial review at the permission hearing – the first hurdle in the process that leads to a full judicial review (as we saw with the University of Sussex and the Office for Students) and a court judgement.
We do get an approved judgement relating to the permission hearing, which sets out Justice (Jeremy) Johnson’s reasons for not allowing the review to proceed and arguments relating to each of four grounds. This permission hearing was expedited – the universities argued that this was an issue that had an ongoing impact, and the court agreed to hold that hearing on 28 and 29 July this year.
Something for the weekend
What’s under discussion here is the enforcement of a rule that an “in attendance” course – which allows students to access maintenance loans and grants in England – needs to include in person delivery during weekdays. This was a principle established to avoid paying maintenance grants to students studying at the Open University (or in OU-style arrangements) – who might attend the occasional in-attendence weekend or summer school as a component of their distance learning course.
Since 2018 various universities have introduced courses that featured in-person teaching only on weekends. These courses generally have a similar attendance requirement (in terms of hours and intensity) as traditional Monday-to-Friday full-time courses; and were introduced in response to a demand from prospective students unable to attend during the week because of work commitments or caring responsibilities. In 2025-26 there were around 22,000 students on weekend delivery courses, claiming around £330m in grants and maintenance payments.
These numbers do not include Open University students, who were still not entitled to claim maintenance support. The OU put it to the Department for Education that this situation put them at a competitive disadvantage, and – after investigation – the Secretary of State asked the SLC to ensure it was applying distance-learning rules to all weekend-delivery courses, to cease immediately the payment of maintenance to students on these courses, and to reclaim payments that had already been made.
This was all unless students could move to qualifying (weekday delivery) courses – in which case payments could continue and repayments were not required. As of the permission ruling date, about 80 per cent of affected students had moved to weekday attendance
Initially (20 March) students were asked to immediately repay loans and grants that had been made with respect to weekend-only courses. This instruction was later (20 April) revised to repayment via the usual SLC graduate loan repayment scheme from September 2026 onwards, and later (16 July) modified to not require the repayment of grants (stuff like the Disabled Student Allowance).
The points for review
The best way to make sense of what has happened here is to look at what the universities arguing for judicial review were claiming:
- That the decision is based on an incorrect interpretation of the statutory definition of a distance learning course (in the 2011 Education (Student Support) Regulations)
- That the decision frustrates the claimants’ legitimate expectations about the way weekend-only courses are treated
- That if the interpretation of the statutory definition is correct, the definition of a distance learning course is irrational
- That the Student Loans Company has not adequately reinstated grants and loans to students who have transferred to other (non-weekend) courses
That’s three definitional problems – the SoS isn’t reading the statute properly, the claimants would have a fair reason to expect that weekend-courses attracted loans and grants for students, and the definition itself is irrational. The last ground is process-driven and relates to the efforts of SLC to reinstate funding to students who had transferred to weekday courses.
My definition is this
Regulation 2 in the 2011 regulations gives us the following definition (I’ve largely followed the judgement in underlining key points for clarity: the markings aren’t in the original text):
A “distance learning course” means a course on which a student undertaking the course is not required to be in attendance by the institution providing the course, where “required to be in attendance” is not satisfied by a requirement imposed by the institution to attend any institution – (a) for the purposes of registration or enrolment or any examination; (b) on a weekend or during any vacation; or (c) on an occasional basis during the week…
There’s two other key bits of text worth noting from elsewhere. A government publication called “assessing eligibility guidance” (and which includes a disclaimer clarifying that the current regulations should be trusted if there is an anomaly between the guidance and the regulations) says:
Distance learning, sometimes called flexible or open learning, is a programme of study that allows students to study at home. Distance learning programmes have become increasingly popular over the last few years, as the Internet has developed into a reliable channel of tuition. [ ] Most colleges and universities offer some distance-learning programmes now… They provide a mode of delivery for students who do not attend traditional on-campus courses, although there may be some short periods of attendance.
From the 2021 edition onwards, the wording of the definition from the statute was included within this text.
Finally, we have the SLC Courses Management Service guide. This is a technical guidance document aimed at the people who put institutional data onto SLC systems. The 2024 version includes the following definition:
Distance learning is a mode of delivery for students who do not attend traditional on-campus courses. It is becoming more common to deliver courses which combine different methods of study. These are known as blended learning courses. They combine traditional classroom teaching with online learning and independent study. There has been some confusion as to whether these courses should be added as distance learning courses.
Courses of any teaching method are distance learning if the students only attend occasionally, for example once a term. If students attend regularly, for example once a week, and follow a structured timetable, the course is not distance learning and you should not add it to CMS as such.”
The SLC guidance varies from year to year, but has consistently drawn the distinction between “regular” attendance on campus (for example once a week) and “occasional” attendance (for example once a term). You’ll note that weekend attendance is – given a usual understanding of the way the calendar works – attendance once a week. I need hardly add that the definition has been changed to make it clear weekend-only delivery is distance learning since this issue arose.
Application denied
So many applications for judicial review come down to a close reading of various statutory, regulatory, and official documents, and the way these may be considered to interact or to demonstrate the intentions of the government. There’s plenty of that to come: to the delight of lawyers and English literature graduates everywhere.
Ground 3: Irrationality
But even to get to that stage, a claim for judicial review needs to be made “in time”. This means that if the government makes a decision that you dislike, you have three months to seek a review. Justice Johnson sees the nub of the universities’ challenge in ground three as stemming from the definition in the 2011 Regulations. If this definition was felt to be “irrational”, this should have been noted at the first time the regulations applied to each university (for example when Buckinghamshire New started offering weekend-only courses in 2018 or when London Met started in 2024). Because it was not, the ground was ruled “out of time”.
You can apply for an extension to that three month limit, and the claimants did so. This was also knocked out: it would be unfair to all the other universities who read the text of the regulations and decided not to offer weekend-only courses.
Ground 1: Interpretation
The test here is that any line in legislation (be that primary or secondary) has a single correct objective meaning, read in context. That’s what the court needs to identify – if it is struggling it can look for evidence of intention in parliamentary debate about a bill (for primary legislation) or in other statements or guidance issued by the government (for primary and secondary legislation). Here this relates to the intentions underpinning the 2011 Regulations, not any decision made since then.
Because regulation (2)1 has “‘required to be in attendance’ is not satisfied by a requirement… to attend… on a weekend” the claimants argue that the intention was to refer to attendance on a single weekend (“a weekend”) rather than a series of weekends (“weekends”). The 1978 Interpretation Act (section 6(c) and section 23(1) to be precise) sets out that the singular includes the plural in legislation unless it is indicated to the contrary.
There’s loads more of this kind of thing in the judgement. The other interesting point here is the claim that:
it would be absurd if students studying the same course, required to attend campus for the same number of hours, being taught by the same tutors, with the same online teaching requirements and the same self-study requirements, taught using the same materials and sitting the same assessments/examinations, are treated in entirely different ways. Those required to attend campus for 6 hours on a Monday would be “in attendance” and would receive the full range of student support (maintenance loans and grants). Yet those required to attend campus for 6 hours on a Saturday would not be “in attendance” and would not receive grants or maintenance loans.
This argument was not successful: the court saw a material difference between weekdays and weekends in many other examples of legislation based on traditional working patterns. And even given that working patterns and student needs have changed, the salient point is what the regulations say rather than what they (arguably) should say. And under the claimant’s interpretation, a course which included an hour of attendance on two separate term-time weekends would be “in person”, while a course that included 16 hours of attendance over a single weekend would be “distance learning”: something Justice Johnson felt was an “absurd outcome”.
So the meaning of the statutory definition is clear: and permission was not given to claim judicial review for ground 1.
Ground 2: Expectation
Even given the clarity of the definition in the 2011 regulation, it is possible that the claimants had been advised otherwise via published guidance or correspondence with DfE or SLC. The bar here is high: it needs to be a “clear, unambiguous, and devoid of relevant qualification” statement, and departing from that statement needs to be an “abuse of power.” And even if you meet that test, there is an overarching rule that a public authority cannot act beyond its statutory powers.
Though the universities were able to find evidence that they could use to back up their argument that weekend delivery could be in person, this does not meet the requirements of frustration of legitimate expectation. Even if the various examples of ambiguity did meet the requirements, the ground 1 finding means that SLC and DfE would be constrained by the wording in the regulation so there would be no chance that the courts could enforce either body doing something the law said it could not.
There’s various other arguments (including via Article 1 of ECHR) that fall away based on this, and permission was not given to pursue this ground.
Ground 4: Reinstatement of funding
The issue here is that there have been delays in reinstating maintenance payments for students who were on weekend-only courses and then transferred to weekday courses. SLC say this is a substantial administrative exercise: and as of the date of the hearing they had processed 17,617 cases. This has been done manually (involving the work of around 16 per cent of all SLC staff!) as there was no straightforward administrative way.
The claimants had identified 27 cases where processing had not taken place: of these nine had already been completed and the remainder were underway. Delays had been caused by all kinds of issues outside of the control of SLC: underlying evidence of eligibility, incorrect submissions by providers, missing documentation, or issues associated with fraud prevention checks. There was evidence that SLC were actively engaging with these, and other, outstanding cases.
But we need to be clear that this is an issue between SLC and the affected students. The universities do not have sufficient interest (meaning evidence that the issue directly affects them) to bring the claim under ground 4. A university is not a trade union, membership organisation, or public-interest body that acts on behalf of students who saw their entitlement changed in that way. Affected students themselves have issued proceedings, and Justice Johnson felt that the claims of these students should be judged based on the cases they make rather than what is set out here. So permission to review was refused.
Because there was no evidence that SLC was contributing to an unlawful delay and was diligently carrying out a complex and labour-intensive task in the best way it could, even if the claimants had the right to advance these grounds they would not succeed.
What have we learned from all this
Judicial review is founded on what the rules actually are and whether they are applied correctly. It is not a mechanism to change the law to suit the desires of claimants.
It is fair to argue that, given changes to common working practices (weekend working is normal for huge swathes of the population) and the needs of an increasingly diverse body of students, weekend delivery of sufficient intensity should qualify for maintenance support. Indeed, the advent of the Lifelong Learning Entitlement – designed to offer supplementary education to people in work in short courses that fit around other commitments – suggests that Saturday and Sunday should be treated in the same way as other days for the purposes of providing student maintenance support.
But that is a lobbying position – one, to be clear, many in the sector would like to see advanced – not a legal argument.
