1. ENOHE 2013 St Catherine’s College, Oxford 13 April 2013 Felicity Mitchell Deputy Adjudicator THE ROLE OF THE COURTS: WHO WATCHES THE WATCHERS? felicity.mitchell@oiahe.org.uk

2. Watching the watchers? OIA: part of the Regulatory Framework for HE in England and Wales OIA: part of the Regulatory Framework for HE in England and Wales NOT regulator, but: 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 Decisions subject to judicial review by Courts

3. 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 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

4. Remedy of last resort OIA first; Mitting J: 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. 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) R(Kwao v University of Keele [2013] EWHC 56 (Admin)

5. Judicial Review claims - 1 OIA decision or action: OIA decision or action: – Final Decision – Eligibility appeal decision – Approach eg decision not to hold an oral hearing

6. Judicial Review claims - 2 Grounds for challenge: Grounds for challenge: – Breach of rules of natural justice – Scant or inappropriate consideration – Unsustainable in law/error of law – Inadequate reasons

7. Judicial Review process - 1 Pre-action protocol Pre-action protocol Claim “promptly and in any event within 3 months” Claim “promptly and in any event within 3 months” Summary of Grounds for Resisting Claim Summary of Grounds for Resisting Claim Interested Party: University Interested Party: University

8. Judicial Review process - 2 Application for permission Application for permission – Judge considers application on papers – Permission refused  automatic right to oral hearing – Permission is granted  detailed grounds; evidence  substantive hearing – Appeal

9. OIA JR stats YearClaims Permission hearings Full hearings Appeal hearingsOutcome 20041 dismissed 20063111all dismissed 200774 all dismissed 200831 all dismissed 20094 21all dismissed 201033 1all dismissed 2011644 1 upheld; 4 dismissed; 1 live 201294 4 dismissed; 5 live 2013 36 Interested party cases: 4

10. Siborurema [2008] ELR 209 Leading OIA JR case Leading OIA JR case Complaint about outcome of academic appeal 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 OIA: University followed its procedures and decision to reject appeal was reasonable Student challenged decision: Student challenged decision: – OIA ought to have conducted “full merits review”

11. Siborurema - Court of Appeal Pill, Richardson, Moore-Bick LLJ Pill, Richardson, Moore-Bick LLJ OIA decisions amenable to judicial review OIA decisions amenable to judicial review No. of cases getting permission likely to be very small No. of cases getting permission likely to be very small Broad discretion as to the nature and extent of investigation required Broad discretion as to the nature and extent of investigation required “Degree of benevolence” “Degree of benevolence”

12. Maxwell - 1 [2011] EWCA Civ 1236 Student had sleep disorder Student had sleep disorder Complaint: University delayed implementation of agreed adjustments Complaint: University delayed implementation of agreed adjustments University apologised and permitted resit year University apologised and permitted resit year Student complained to OIA Student complained to OIA

13. Maxwell - 2 OIA: University’s offer was reasonable but did not go far enough: OIA: University’s offer was reasonable but did not go far enough: – Repeat offer; – compensation £2,500; – changes to procedures Student challenged decision: Student challenged decision: – OIA ought to have made finding that University discriminated on grounds of disability

14. Maxwell - Court of Appeal Mummery, Hooper, McFarlane LLJ Mummery, Hooper, McFarlane LLJ Upheld OIA’s approach to discrimination cases Upheld OIA’s approach to discrimination cases OIA’s task is to review complaint to see whether University’s decision was reasonable 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 Judicialisation of OIA would not be in interests of students

15. Sandhar [2011] EWCA Civ 1614 Medical student: failed final year resit exams Medical student: failed final year resit exams Appeal: Appeal: – Procedural error & mitigating circumstances – Ought to be permitted pass Complaint to OIA: Challenge to process: Complaint to OIA: Challenge to process: – Expedite review; oral hearing; “full merits review”

16. Sandhar - OIA Independence LJ Longmore, LJ Black, Rt Hon Sir David Keene 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

17. 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

18. Cardao-Pito [2012] EWHC 203 (Admin) Manchester District Registry - HHJ Gilbart Manchester District Registry - HHJ Gilbart First successful challenge First successful challenge OIA is not functus officio OIA is not functus officio OIA did not properly deal with University’s failure to follow correct appeals process 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 OIA did not give adequate reasons for compensation for lost opportunity

19. Other interesting cases - Budd [2010] ELR 579 “Merits review” “Merits review” Oral hearings: 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

20. Other interesting cases - Burger [2013] EWHC 172 (Admin) Error in decision 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

21. Other interesting cases - Mustafa Plagiarism and Academic Judgment 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

22. Types of case Speculative claims Speculative claims – Publicly funded Litigants in person Litigants in person Claims raising a real issue Claims raising a real issue

23. Learning from JR Recognition of our independence Recognition of our independence Our task: did HEI follow its procedures and was its decision reasonable? 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 approach and remit Guidance on reasons Guidance on reasons

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