JUDICIAL REVIEW

If you are unhappy with a decision we have made and are considering whether to bring a claim for judicial review, you can find more information under options when your complaint is closed.

Over the years, a number of students have challenged our decisions and processes by bringing a judicial review claim. 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, or a body carrying out a “public function”. Reviewing student complaints is considered to be a public function, and so our decisions can be subject to judicial review. Find out more about judicial review.

Anyone who wants to bring a judicial review claim must first get permission from a judge to bring the claim. If the judge grants permission, the case will be considered at a hearing, and the judge will set out their decision in a judgment. In practice, about 15% of judicial review claims against the OIA are given permission to proceed. A number of judgments have provided useful guidance on our approach. You can find the judgments relating to cases involving the OIA below. You may also be interested in our publication "The OIA and Judicial Review: Ten principles from ten years of challenges".

The leading case is Siborurema in which the Court of Appeal decided that our decisions are subject to judicial review, but the scope of the court’s 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 if, exercising our judgment, we decide that a complaint is Not Justified. The Court of Appeal also decided that we have a broad discretion to decide the nature and extent of our reviews.

In the case of Maxwell, a challenge was brought to the approach we take in complaints raised about disability discrimination. The Court of Appeal dismissed Ms Maxwell’s appeal and ruled that our 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 about our processes and approach to these complex issues. The Court recognised that the informality and flexibility of our processes should be protected and that “judicialisation” of the process is not in the interests of students. Our Scheme is free to students, and is designed to be accessible to all students, without the need for legal representation.

The Court of Appeal again considered our approach to our reviews in SandharLord Justice Longmore approved comments made by Mr Justice Ockelton in Budd, in which the student claimed that we ought to have to have carried out 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.”

In Sandhar the Court of Appeal also confirmed our independence from the higher education sector.

In the case of Burger, the Court of Appeal considered whether a mistake in our decision was sufficiently material to have affected the outcome of our 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 judgments

  • Mustafa: the court considered the extent to which decisions about whether a student has plagiarised work involve academic judgment.
  • Cardao-Pito and Wilson: the court gave helpful guidance on the reasoning the court would expect to see when we make recommendations for compensation.
  • Gopikrishna: the court considered the approach we should take to new evidence presented by the student which was not available to the higher education provider when it considered the case.
  • Thilakawardhana: the court considered our approach to a higher education provider’s decision about a student’s fitness to practise.
  • Ms AC: the court upheld Ms AC’s claim that we ought to consider her complaint about a higher education provider’s decision not to allow her to restart her medical studies because she had previously studied medicine.
  • Mr B: the court considered whether Mr B’s complaint to us was the same subject matter as legal proceedings that he had previously brought against his university.
  • Rafique-Aldawery: the Court of Appeal considered whether to give formal guidance to students and providers where the student wants to preserve their rights to bring legal proceedings against the provider.