Court of Appeal provides welcome clarification

The Court of Appeal’s decision in the matter of Gaston Siborurema v (1) Office of the Independent Adjudicator (“OIA”) (2) London South Bank University (“LSBU”) [2007] EWCA Civ 1365 has provided clarity on two important issues concerning the OIA and, by extension, Higher Education Institutions (“HEIs”).

Although dealt with in the Court of Appeal Mr Siborurema’s appeal was against a refusal to grant permission to move for Judicial Review. Therefore, the proceedings effectively took the form of a first instance Judicial Review hearing.

The nub of Mr Siborurema’s claim in the Judicial Review proceedings was that the manner in which the OIA had dealt with his student complaint had been unfair and unlawful.

The two key issues which the Court was asked to determine were whether, and to what extent, the OIA is susceptible to Judicial Review and, if the Court found the OIA was susceptible to review, what view the Court took as to the form and extent of the review of student complaints the OIA is obliged to undertake.

FACTS

Mr Siborurema was a Nursing student at LSBU. He commenced his studies in 2003.

Mr Siborurema failed two of his first year modules at the fourth attempt. LSBU’s Exam Board consequently withdrew him from the course in the summer of 2005. Mr Siborurema then submitted Mitigating Circumstances (“MCs”). The MCs were submitted late and outside University Regulations.

LSBU refused to accept the MCs both because they were submitted late and because the University took the view that the evidence provided in support of the MCs did not in fact support the claim for mitigation. An appeal was pursued, unsuccessfully, within LSBU’s own appeal system.

Mr Siborurema complained to the OIA about LSBU’s handling of his appeal. He also made a secondary complaint, developed during the course of the OIA investigation, that he should have been given an opportunity to re-take for the fourth time with attendance, in effect to go back a year.

The approach of the OIA was to consider the complaint by reference to paragraph 7.3 of its Scheme Rules. Paragraph 7.3 says:

“In deciding whether a complaint is justified the Reviewer may consider whether or not the HEI properly applied its regulations and followed its procedures, and whether or not a decision made by the HEI was reasonable in all the circumstances”

It was conceded by the OIA that although paragraph 7.3 is in permissive terms, in practice the OIA only asks itself the questions set out in that rule.

The paragraph 7.3 criteria were applied and the OIA rejected the complaint. The LSBU regulations had been properly applied and the decision reached had been a reasonable one.

SUBMISSIONS

Mr Siborurema submitted that the OIA was subject to the supervision of the High Court by way of Judicial Review. He highlighted the statutory under-pinning of the whole OIA scheme and the position, in terms of susceptibility to review, of analogous bodies, such as the Parliamentary Ombudsman.

Mr Siborurema’s position as to the correct approach for the OIA to adopt was that the OIA must look at the underlying merits of complaints to discharge its statutory function. This consideration of merits included an investigation of the facts. The approach adopted by the OIA in this case, applying the paragraph 7.3 formulation, was unlawful as it did not require the consideration, by the OIA, of the merits.

The fall back position for the student was that if a duty to examine the underlying merits did not arise in all cases, then the power to do so did and therefore consideration must be given in all cases to the exercise of that power.

It was submitted that the OIA had applied the wrong test. The underlying merits of the complaint had not been considered.

Mr Siborurema also advanced four specific procedural challenges to the OIA’s decision making process in relation to his complaint.

The position of the OIA, as to amenability to review, was initially that the OIA was not subject to review at all. This submission was founded, primarily, on a contention that the OIA essentially provided a form of alternative dispute resolution. The OIA’s position developed, during the proceedings, such that it was conceded that the OIA may be reviewed judicially on natural justice grounds i.e. bias, failure to allow opportunity for representations etc. But that the Court’s power to intervene was very limited.

As to the extent of the obligation on the OIA in relation to the review, the OIA’s position was that the Reviewer is to make a decision as to the extent to which a qualifying complaint is justified. This is essentially a question requiring specialist knowledge, and the OIA and its Reviewers being specialist, the Court should respect their decisions.

LSBU was an interested party to the proceedings. It made submissions supporting the position of the student insofar as the question of susceptibility to Judicial Review was concerned. However, LSBU supported the position of the OIA as to its approach to dealing with complaints. LSBU agreed that the objective of the Scheme was to divert complaints from the Courts. The Regulations and decisions of HEIs should be respected not least because of the public interest in ensuring the competence of the professions and the orderly regulation of University courses.

CONCLUSIONS OF THE COURT

Pill LJ gave the leading judgement, with which the other Judges (Moore-Bick and Richards LJJ) agreed. He had no difficulty in concluding that the OIA was amenable to Judicial Review. This conclusion was reached largely due to the statutory under-pinning of the Scheme and because the function contemplated for the OIA could not be categorised merely as a regulating contractual arrangements between student and HEIs. Whilst the nature and extent of the review would be based on the nature of the Scheme, the duty involved and the powers exercised, it would not be limited to narrow natural justice grounds.

As to the extent of the review the OIA was obliged to undertake, the court preferred the submissions of the OIA. A number of key factors influenced this conclusion:

(i) Respect was due to the regulations and procedures of HEIs and the decisions of those operating them.

(ii) The Paragraph 7.3 formulation already applied by the OIA was amenable to a broad construction. Particularly it did not prevent a review on the merits in a particular case.

(iii) Paragraph 7.3 did not in any way limit the general obligation to determine whether a complaint was justified.

Lord Justice Pill made the following observation:

“Parliament has conferred on the designated operator a broad discretion. It is not prescriptive as to how complaints should be considered when making a decision whether they are justified. OIA is able, both in defining its scheme and in deciding whether particular complaints are justified, to exercise a discretion in determining how to approach the particular complaint. OIA is entitled to operate on the basis that different complaints may require different approaches. In assessing whether a complaint has been approached in a lawful manner, the court will have regard to the expertise of OIA, which in turn should have regard to the expertise of the HEI.”

The Court took into account the general principles it has set out and concluded (unanimously) that whilst it could review the decision of the OIA there was no basis upon which it should interfere with its determination in this case.

IMPLICATIONS

The Judgement has served to provide a clear decision on the issue of susceptibility to Judicial Review, which has been the subject of debate for some time. The Court’s conclusion in this regard is not surprising given the statutory basis of the Scheme and the Court’s general reluctance to allow its review function to be curtailed.

The decision as to the extent of the OIA’s review function has largely approved the manner in which the OIA has operated.

It would appear that it will now be difficult for a student to bring a successful Judicial Review challenge to a decision made by the OIA. The following comment of Moore-Bick LJ should be something considered by students and their advisers before embarking on such a challenge:

“It is for the OIA in each case to decide the nature and extent of the investigation required having regard to the nature of the particular complaint and on any application for judicial review the court should recognise the expertise of the OIA and is likely to be slow to accept that its choice of procedure was improper. Similarly, I should not expect the court to be easily persuaded that its decision and any consequent recommendation was unsustainable in law.”

Andrew Johnson, Lupton Fawcett LLP

Leeds Solicitors