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.
In practice, about a fifth of judicial review claims against the OIA are given permission to proceed. 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 Court of Appeal dismissed Ms Maxwell’s appeal and ruled that the OIA’s decision on her 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:
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.”
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.
The Court of Appeal again considered the OIA’s approach to its reviews in Sandhar. Lord Justice Longmore approved comments made by Mr Justice Ockelton in Budd, in which the student claimed 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 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.”
The Sandhar judgment also confirmed the OIA's independence from the Higher Education sector.
In the case of Burger, the Court of Appeal considered whether an error in the OIA’s decision was sufficiently material to have affected the outcome of the OIA’s review, and determined that it was not. Lady Justice Hallett said,
"The OIA was set up to provide speedy, effective and cost effective resolution of students' complaints. It was not set up as a court or tribunal or other judicial body. Any court asked to review its decisions must, therefore, act with caution. One must look to the nature of the complaint before the OIA and how the OIA responded in far more general terms than might be the case when reviewing a decision of a judge. Here the OIA did its very best with a very far ranging series of complaints made by the appellant. It followed rational and fair procedures and gave adequate reasons for its decisions and recommendations. It addressed the substance of the complaints. Even if no errors had been made the result would have been the same."
Other interesting cases include:
- Mustafa, in which the Court considered the extent to which a determination of plagiarism involves the exercise of academic judgment.
- Cardao-Pito and Wilson, in which the Court gave helpful guidance as to what the court would expect by way of reasons for compensation we award.
- Gopikrishna, in which the Court considered the approach the OIA should take to new evidence presented by the student which was not available to the Higher Education Provider during its consideration of the case.
- Thilakawardhana, in which the Court considered the OIA’s approach to a Higher Education provider’s decision about a student’s fitness to practise.
- Ms AC, in which the Court upheld the claimant’s claim that the OIA ought to consider her complaint about a Higher Education Provider’s decision not to permit her to restart her medical studies because she had previously studied medicine. The OIA decided that her complaint related to an admissions issue and was not eligible for review under its Rules. The Court decided that, since Ms AC was a former student of the Higher Education Provider, and that there was a sufficient nexus between her complaint and her time as a student, hers was a “qualifying complaint” which the OIA had to consider.
The Court has also provided useful guidance for students and providers where the student wishes to preserve their rights to bring legal proceedings against the provider.
Court of Appeal Judgments
High Court Judgments
The OIA has published 'The OIA and Judicial Review: Ten principles from ten years of challenges’, written by the Deputy Adjudicator, Felicity Mitchell.