ENOHE 2013

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

2. 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

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

4. 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)

5. Judicial Review claims - 1 • 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: • 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 • Claim “promptly and in any event within 3 months” • Summary of Grounds for Resisting Claim • Interested Party: University

8. Judicial Review process - 2 • 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

10. 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”

11. 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”

12. 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

13. 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

14. 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

15. 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”

16. 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

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 • 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

19. 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

20. 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

21. 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

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

23. 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

24. 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