ENOHE 2013

St Catherine’s College, Oxford13 April 2013

Felicity MitchellDeputy Adjudicator

THE ROLE OF THE COURTS:WHO WATCHES THE WATCHERS?

felicity.mitchell@oiahe.org.uk

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; evidencesubstantive hearing

–Appeal

OIA JR stats

Year ClaimsPermission hearings

Full hearings

Appeal hearings Outcome

2004 1 dismissed2006 3 1 1 1 all dismissed2007 7 4 all dismissed2008 3 1 all dismissed2009 4 2 1 all dismissed2010 3 3 1 all dismissed

2011 6 4 4 1 upheld; 4 dismissed; 1 live

2012 9 4 4 dismissed; 5 live2013

36Interested party cases: 4

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 case-handler 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