The recent case of R (on the application of Cardao-Pito) v Office of the Independent Adjudicator for Higher Education, has provided us with the first decision by the Administrative Court to quash a determination of the Office of the Independent Adjudicator for Higher Education (‘OIA’). This case could open the door to further applications for judicial review against OIA determinations, as the courts have now amply illustrated that the OIA remains subject to public law principles.
In this case the Administrative Court considered not only the amenability of the OIA to judicial review, but also the OIA’s ability to review its own determinations and whether OIA determinations are subject to a duty to give reasons.
This case involved an application for judicial review relating to a complaint made to the OIA after the Claimant had been asked to leave the London Business School (LBS), where he had enrolled in September 2007 on a four year course leading to the award of the degree of Doctor of Philosophy. The Claimant had been in receipt of an award, funded by the Economic and Social Research Council (“ESRC”), of £16,800 per annum for 2007-8 and £17,220 for the year 2008/9.
The first part of the Claimant’s course required him to undertake a Masters Course including a research paper. The Claimant was asked to leave at the end of the 2008-9 academic year because his coursework paper received a “C” grade and LBS made it a condition of proceeding to the Ph.D stage that a student achieved at least a Grade B. The Claimant therefore had to find another institution where he could obtain a Ph.D. However, as a result of his grading at the LBS, the ESRC decided not to continue funding his studies. The Claimant enrolled at another university and has now passed the viva for his Ph.D, but has had to find other funds to pay for his last two years of study.
The Claimant appealed internally at the LBS, raising grounds relating to the supervision he had received, and alleged bias or prejudice by his supervising professor, and challenged the mark awarded for his research paper. Attempts were made within LBS at a senior level to discourage him from appealing. LBS decided that his appeal showed no prima facie case and the Claimant therefore proceeded with a complaint to the OIA.
The OIA partly upheld his complaint. In summary the OIA: concluded that LBS should have found a prima facie case of bias and prejudice on the part of his supervising professor and accepted his complaint that senior academic and administrative staff had sought to deter him from appealing; stated that the LBS should have made the Claimant aware of the Harassment and Bullying Procedure and asked him if he wished to complain under it; and, recommended that the Claimant be offered £400 in compensation. However, the OIA rejected complaints about the grading of his paper and considered that the Claimant should “bear a significant proportion of responsibility for the problems that arose.”
The Claimant challenged that decision and his application for judicial review was granted. The complaint to which the Court gave particular attention was the Claimant’s contention that the offer of compensation was inadequate:the Claimant was claiming the sum of £68,400 representing his monthly expenditure for 3 years and costs of moving to his current university.
In light of the Court’s decision the OIA then conducted a review of their decision and concluded that: inappropriate attempts were made to dissuade the Claimant from pursuing an appeal; LBS was unreasonable in concluding that no prima facie case had been shown; LBS should have investigated the case made against the supervising Professor under its harassment and bullying procedure; and, recommended that the Claimant should be paid a total of £6,500 and offered an investigation under the harassment and bullying procedure. However, the OIA also noted that the Claimant's complaint about the choice of examiner, and other matters relating to purely academic questions should be rejected.
The Claimant then applied to the Court to consider the matter further. The Court ordered that both determinations made by the OIA should be quashed. The Court also ordered the OIA, and the LBS, to pay the Claimant’s costs.
Reconsideration by the OIA will therefore now take place.
Amenability of the OIA to judicial review
The Court reaffirmed the comments made in the cases of Siburorema and Maxwell regarding the amenability of the OIA to judicial review. The Court confirmed that it is now firmly established that the decisions of the OIA are amenable to judicial review.
The Court referred to a useful summary in Maxwell at paragraph 23:
“(1) The OIA is amenable to judicial review for the correction of legal errors in its decision-making process.
(2) That process involves conducting, in accordance with a broad discretion, a fair and impartial review of a student's unresolved complaint about the acts or omissions of an HEI and to do so on the basis of the materials before it, also drawing on its own experience of higher education, all with a view to making recommendations.
(3) The function of the OIA is a public one of reviewing a “qualifying complaint” made against an HEI and of determining “the extent to which it was justified.”
(4) For that purpose the OIA considers whether the relevant regulations have been properly applied by the HEI in question, whether it has followed its procedures and whether its decision was reasonable in all the circumstances.
(5) It is not the function of the OIA to determine the legal rights and obligations of the parties involved, or to conduct a full investigation into the underlying facts. Those are matters for judicial processes in the ordinary courts and tribunals. Access to their jurisdiction is not affected by the operations of the OIA.
(6) The review by the OIA does not have to follow any particular approach or to be in any particular form. The OIA has a broad discretion to be flexible in how it reviews the complaint and in deciding on the form, nature and extent of its investigation in the particular case.
(7) The courts will be slow to interfere with review decisions and recommendations of the OIA when they are adequately reasoned. They are not required to be elaborately reasoned, the intention being that its operations should be more informal, more expeditious and less costly than legal proceedings in ordinary courts and tribunals.”
The Court also noted that the OIA’s role was not limited to looking at whether an institution had breached its procedures or acted unfairly. It had a wide discretion to choose the form of review.
The Court also reaffirmed that complaint to the OIA was an alternative to litigation, indicating that breach of contract claims in the county courts are still available.
The power of the OIA to review its determinations
The Court voiced concerns regarding the power of the OIA to re-determine the complaint, and that, in the absence of an order of the Court quashing the first decision and requiring its redetermination, it had no power at the time of the second decision to reopen a complaint which it had already determined. Despite proceeding to hear the challenge in relation to the second decision of the OIA, the Court noted that the first decision was made and issued, and had not formally been withdrawn, and that therefore the Court was still required to give judgment on it.
Duty to give reasons
The Court held that, whilst the context of an OIA decision did not require elaborate reasoning, once the OIA had decided to address an issue within its decision, it was required to give reasons for the conclusion it reached. The Court recognised that the reasons may be shortly stated and that the OIA were not expected to draft them as if they were part of a judgment of a court. However, the Court confirmed that on normal public law principles the OIA must deal adequately with the principal issues, albeit they can be succinctly stated.
In relation to the adequacy of the compensation offered to the Claimant, the Court held that if the issue of compensation was to be addressed, then adequate reasons had to be given. The Court referred to the fact that the Claimant had argued that he had been deprived of the benefit of funding which he would otherwise have obtained. The Court noted that the decision of the OIA never grappled with the question of whether he should get any or some of that claim, nor did it even state whether what he was being granted was a compensatory award for monies lost to him, or for inconvenience and distress, or both.
The Court concluded that, given the fact that a large sum had been claimed because the Claimant had lost his award, and that his complaint had not been regarded as frivolous, it was a topic which demanded an explanation, albeit a succinct one.
The Court held that both decisions of the OIA failed to give adequate reasoning for the award of compensation recommended.
This case highlights that the Court may scrutinise an OIA determination where it has been made without the provision of adequate reasoning. The Court will particularly scrutinise the calculation of compensation.
This is the first instance of a determination of the OIA being successfully challenged and it will be interesting to see whether this leads to further applications for judicial review against the OIA’s decisions.