THE ROLE OF THE COURTS:
WHO WATCHES THE WATCHERS?
ENOHE 2013
Felicity Mitchell
Deputy Adjudicator
felicity.mitchell@oiahe.org.uk
St Catherine’s College, Oxford
13 April 2013
Watching the watchers?
• OIA: part of the Regulatory Framework for HE
in England and Wales
• NOT regulator, but:
– Good practice recommendations
– Non-compliance leads to public reporting
– Sharing good practice with sector
– Sharing information eg with QAA
• Decisions subject to judicial review by Courts
What is Judicial Review?
• Judicial review is a type of court
proceeding in which a judge reviews the
lawfulness of a decision or action made
by a public body
Remedy of last resort
• OIA first; Mitting J:
• The statutory scheme, in my judgment,
provides an inexpensive, fairly rapid and
comprehensive avenue by which challenges to
a decision to expel a student for alleged
cheating at exams can be fairly resolved.
R (PENG HU SUI) v KING'S COLLEGE LONDON [2008] ELR 414
• R(Kwao v University of Keele [2013] EWHC 56 (Admin)
Judicial Review claims - 1
• OIA decision or action:
–Final Decision
–Eligibility appeal decision
–Approach eg decision not to hold an
oral hearing
Judicial Review claims - 2
• Grounds for challenge:
–Breach of rules of natural justice
–Scant or inappropriate consideration
–Unsustainable in law/error of law
–Inadequate reasons
Judicial Review process - 1
• Pre-action protocol
• Claim “promptly and in any event within
3 months”
• Summary of Grounds for Resisting Claim
• Interested Party: University
Judicial Review process - 2
• Application for permission
–Judge considers application on papers
–Permission refused
automatic right to oral hearing
–Permission is granted
detailed grounds; evidence
substantive hearing
–Appeal
OIA JR stats
Permission Full
Appeal
Year Claims hearings
hearings hearings
2004
1
2006
3
1
1
1
2007
7
4
2008
3
1
2009
4
2
1
2010
3
3
1
2011
2012
2013
6
9
4
4
36
Interested party cases:
4
4
Outcome
dismissed
all dismissed
all dismissed
all dismissed
all dismissed
all dismissed
1 upheld; 4 dismissed;
1 live
4 dismissed; 5 live
Siborurema [2008] ELR 209
• Leading OIA JR case
• Complaint about outcome of academic appeal
– Submission of mitigating circumstances claim
– Appeal rejected: late and evidence did not match
dates
• OIA: University followed its procedures and
decision to reject appeal was reasonable
• Student challenged decision:
– OIA ought to have conducted “full merits review”
Siborurema - Court of Appeal
• Pill, Richardson, Moore-Bick LLJ
• OIA decisions amenable to judicial review
• No. of cases getting permission likely to
be very small
• Broad discretion as to the nature and
extent of investigation required
• “Degree of benevolence”
Maxwell - 1 [2011] EWCA Civ 1236
• Student had sleep disorder
• Complaint: University delayed
implementation of agreed adjustments
• University apologised and permitted resit
year
• Student complained to OIA
Maxwell - 2
• OIA: University’s offer was reasonable
but did not go far enough:
–Repeat offer;
–compensation £2,500;
–changes to procedures
• Student challenged decision:
– OIA ought to have made finding that
University discriminated on grounds of
disability
Maxwell - Court of Appeal
• Mummery, Hooper, McFarlane LLJ
• Upheld OIA’s approach to discrimination
cases
• OIA’s task is to review complaint to see
whether University’s decision was
reasonable
• Judicialisation of OIA would not be in
interests of students
Sandhar [2011] EWCA Civ 1614
• Medical student: failed final year resit
exams
• Appeal:
– Procedural error & mitigating circumstances
– Ought to be permitted pass
• Complaint to OIA: Challenge to process:
– Expedite review; oral hearing; “full merits
review”
Sandhar - OIA Independence
• LJ Longmore, LJ Black, Rt Hon Sir David Keene
“In all these circumstances I just do not see how
it can be said that any fair-minded and informed
observer could say that there was a real
possibility that the OIA in general or its
Independent Adjudicator or any individual casehandler was biased in favour of the HEI under
scrutiny in any particular case or lacked
independence in any way.” Longmore LJ
Sandhar - OIA approach
“The OIA does its task properly if it continues its
investigation until it is confident that it has all
the material it needs in order to make a decision
on the individual complaint, and then makes its
decision. The exercise of a discretion in this
context is simply the continuous consideration of
whether any more information is needed in
order to make a decision on the particular
complaint.” Longmore LJ, approving Budd
Cardao-Pito [2012] EWHC 203 (Admin)
•
•
•
•
Manchester District Registry - HHJ Gilbart
First successful challenge
OIA is not functus officio
OIA did not properly deal with
University’s failure to follow correct
appeals process
• OIA did not give adequate reasons for
compensation for lost opportunity
Other interesting cases
- Budd [2010] ELR 579
• “Merits review”
• Oral hearings:
“If a man in a main street in London tells me he
is not aware of any cars, I may suspect him of
not looking very hard: if he says he is not aware
of any carriages I do not have the same
suspicion, unless there has been reason to
expect some.” Mr Ockelton sitting as Deputy HCJ
Other interesting cases
- Burger [2013] EWHC 172 (Admin)
• Error in decision
“However, where an inferior tribunal has made
an error of fact, relief by way of judicial review
will only be granted if the error is material – see
E v SSHD [2004] QB 1044 at 66 per Carnwath LJ”
– Mr Justice Mostyn
Other interesting cases
- Mustafa
• Plagiarism and Academic Judgment
“I think a viable point of law may be lurking
here, namely whether the determination of
plagiarism is necessarily a matter of
academic judgment and so always outwith
the OIA’s jurisdiction.” – Lord Justice Sedley
Types of case
• Speculative claims
–Publicly funded
• Litigants in person
• Claims raising a real issue
Learning from JR
• Recognition of our independence
• Our task: did HEI follow its procedures and
was its decision reasonable?
– Broad discretion to determine nature and
extent of our review
– Obtain material we need to make decision,
and then make it
• Guidance on approach and remit
• Guidance on reasons
How to Contact Us
• By post:
– Third Floor, Kings Reach,
38-50 Kings Road,
Reading, RG1 3AA
• Tel: 0118 959 9813
• Online: www.oiahe.org.uk
• Email:
enquiries@oiahe.org.uk