Office of the Independent Adjudicator

Judicial Review challenges to the OIA

The OIA has been the subject of several Judicial Review claims. The judgments, which are available below, provide a strong body of support for the OIA’s approach to its role and remit.

The leading case is Siborurema in which the Court of Appeal decided that Decisions of the OIA are subject to Judicial Review, but the scope of any Review will be limited and it is unlikely that many claims will get through the permission “filter” stage. The court will be “very slow” to interfere with the exercise of judgment leading to a Decision that a complaint is Not Justified. The Court of Appeal also decided that the OIA has a broad discretion to determine the nature and extent of its own reviews.

The OIA's approach

A number of judgments have provided useful guidance on the OIA's approach. In the case of Maxwell, a challenge was bought to the approach taken by the OIA in complaints raising the issue of disability discrimination. The OIA found Ms Maxwell’s complaint against the University to be Justified and recommended the payment of compensation of £2,500, and changes to the University’s procedures.

The essence of Ms Maxwell’s Judicial Review claim was that the OIA ought to have made a finding on whether the University had discriminated against Ms Maxwell. Such a finding would, she claimed, have benefited her and the University, and would have informed the level of compensation awarded to her. Ms Maxwell claimed that by not making such a finding, the OIA erred in law, failed in its duty to promote equality, and had no rational basis upon which to make its decision. Mr Justice Foskett dismissed the claim.

The Court of Appeal dismissed the appeal and ruled that the OIA’s decision on Ms Maxwell’s complaint was “an adequately reasoned decision in accordance with its procedures, in accordance with the law and as a proper exercise of its wide discretion.”

Giving judgment on 27 October 2011, Lord Justice Mummery said:

“Litigation in the courts against Higher Education Institutions (HEIs) for more favourable outcomes than those obtained in the special internal and external complaints procedures is not, except in very special circumstances, a course that anyone fortunate enough to be accepted for a course of higher education should be encouraged to take up. Most people would agree it is not in the interests of students, or of the HEIs that exist to provide them with educational courses, to engage in a stressful and expensive activity like litigation, when something more fulfilling, as higher education aims to be, is a more attractive long-term investment for life. This is particularly so when Parliament, taking the sensible line that there are more important things in life than generating a lis out of every grievance, has facilitated the provision of a less formal and affordable out-of-court scheme for reviewing and remedying Justified complaints by students.” [7]

The issue for the OIA in this matter was not to decide whether Ms Maxwell was in fact the victim of disability discrimination or whether the University is liable to her for such discrimination. The OIA’s task was to review Ms Maxwell’s complaint, which included a complaint of discrimination, to see whether the University’s decision was reasonable in all the circumstances and was Justified and, if so, to what extent, and what recommendations should be made to the University.” [32]

“In my judgment, the courts are not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues, such as whether or not there has been disability discrimination. Adjudication of that issue usually involves making decisions on contested questions of fact and law, which require the more stringent and structured procedures of civil litigation for their proper determination.” [33]

“If the approach advocated by Mr Jones [counsel for Ms Maxwell] were correct, it is difficult to see what point there would be in having a scheme, which was established under the 2004 Act not as another court of law or tribunal, but as a more user friendly and affordable alternative procedure for airing students’ complaints and grievances. The judicialisation of the OIA so that it has to perform the same fact-finding functions and to make the same decisions on liability as the ordinary courts and tribunals would not be in the interests of students generally.” [37]

The judgment of the Court of Appeal provides helpful clarification in relation to the OIA’s processes and approach to these complex issues. The Court has recognised that the informality and flexibility of the OIA’s processes should be protected and that “judicialisation” of the process is not in the interests of students. The OIA Scheme is free to students, and has been designed to be accessible to all students, without the need for legal representation.

In Budd, Mr Justice Ockelton considered the claim that the OIA ought to have called for the student’s examination script, and ought to have conducted a “full merits review” of his claim, and held an oral hearing. The Judge rejected the claim. He said:

“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.”

Other Judicial Review claims

The Siborurema case has been followed by judges in other judicial review applications. In Arratoon, the judge gave a useful summary of the principles identified by the Court of Appeal in Siborurema. He emphasised the considerable degree of discretion afforded to the OIA, and the degree of deference which should be shown to the expertise of the OIA. Once again the Court declined to interfere with the OIA's Decision, and endorsed its approach.

In Sandhar, the Court of Appeal confirmed the OIA's independence from the Higher Education sector and in Cardao-Pito the judge gave helpful guidance as to what the court would expect by way of reasons for compensation we award. The judgment in these and other OIA claims can be found below.

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