Scottish Court of Session Decisions
You are here:
BAILII >>
Databases >>
Scottish Court of Session Decisions >>
AB against The Scottish Public Services Ombudsman (Court of Session) [2025] CSOH 48 (10 June 2025)
URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025csoh48.html
Cite as:
[2025] CSOH 48
[
New search]
[
Printable PDF version]
[
Help]
OUTER HOUSE, COURT OF SESSION
[2025] CSOH 48
P221/24
OPINION OF LADY POOLE
In the cause
AB
Petitioner
against
THE SCOTTISH PUBLIC SERVICES OMBUDSMAN
Respondent
Petitioner: Party
Respondent: Blair; Burness Paul LLP
10 June 2025
Background and summary
[1]
In this petition for judicial review, the petitioner challenges decisions of the
respondent, the Scottish Public Services Ombudsman ("SPSO"), to refuse to investigate her
complaint any further.
[2]
The background to the petitioner's complaint is that she was a law student at the
University of Glasgow. The university offered a Scots law LLB course. It also offered a
common law LLB course, designed for students who wished to practice law in a jurisdiction
beyond Scotland after graduating. The petitioner was a student on the common law LLB,
then a relatively new course. She completed her degree, and was notified of her degree
2
result, a 2:1, on 14 June 2022. She contacted the Student Representative Council ("SRC") the
next day for advice about appealing the degree classification she had been awarded. She
graduated on 24 June 2022, not realising at the time that this might have an effect on
whether she could still appeal. She then submitted her appeal, but the university declined to
entertain it. The petitioner made a formal complaint to the university. Matters covered by
the complaint included that the university was wrong to reject her academic appeal, that
there had been prejudicial differences in treatment between students on the Scots and
common law LLB courses, and that the university had failed to deal appropriately with her
mental health issues. The university rejected her complaint at stage 2 on 23 November 2022.
[3]
On 12 December 2022, the petitioner asked the SPSO to investigate how the
university handled her complaint. The SPSO looked into the petitioner's request, but
ultimately decided not to investigate any further. That is the decision which is challenged in
this petition for judicial review. The SPSO gave reasons for its decision in a letter of 27 June
2023, and informed the petitioner of a process for asking for an internal review of the
decision. The petitioner sought a review, but on 8 December 2023 the SPSO confirmed its
decision not to investigate any further.
[4]
Permission to bring this petition was granted by the Inner House of the Court of
Session, after a successful appeal against an initial refusal of permission (AB v The Scottish
Public Services Ombudsman [2025] CSIH 8). An extension of time for bringing the petition
was also granted, essentially because it was reasonable for the petitioner to have utilised the
SPSO's review procedure before coming to court.
[5]
This opinion sets out the governing law, then addresses the three grounds of
challenge advanced by the petitioner before the court. All information before the court has
been carefully considered, including adjusted pleadings, affidavit, productions, authorities,
3
notes of argument and oral submissions. The outcome is that the petition succeeds on two
of the petitioner's grounds of challenge, and the SPSO's decisions are reduced. The SPSO's
decision not to investigate further the university's refusal of an academic appeal failed to
take into account material considerations, and was irrational. It was a jurisdictional error
and unlawful for the SPSO to decline to investigate further aspects of the petitioner's
complaint of discrimination between common law and Scots law LLB students. However,
the petitioner's third ground, challenging the SPSO's decision not to investigate further the
issue of reasonable adjustments, does not succeed.
Governing law
[6]
The SPSO's powers under review in this case arise primarily under the Scottish
Public Services Ombudsman Act 2002 (the "2002 Act"). Section 2 confers a power of
investigation on the SPSO as follows:
"2 Power of investigation
(1) The Ombudsman may investigate any matter, whenever arising, if--
(a) the matter consists of action taken by or on behalf of a person liable to
investigation under this Act,
(b) the matter is one which the Ombudsman is entitled to investigate, and
(c) a complaint in respect of the matter has been duly made to the
Ombudsman.
(2) The Ombudsman may investigate any matter, whenever arising, if--
(a) paragraphs (a) and (b) of subsection (1) are satisfied, and
(b) the person liable to investigation has requested the Ombudsman to
investigate the matter.
(3) Without prejudice to, paragraph 2(2) of schedule 1 it is for the Ombudsman to
decide whether to initiate, continue or discontinue an investigation under subsection
(1) or (2).
(4) The Ombudsman may take such action in connection with the complaint or
request as the Ombudsman thinks may be of assistance in reaching any such
decision.
4
(5) Such action may, in particular, include action with a view to resolving the
complaint or request".
[7]
The university is liable to investigation under the 2002 Act, because it is a fundable
body within the meaning of section 6 of the Further and Higher Education (Scotland) Act
2005 (paragraph 92 of part 3 of schedule 2 to the 2002 Act). Under section 5 of the 2002 Act,
the SPSO may investigate action taken by or on behalf of the university in the exercise of its
administrative functions. The SPSO's powers to do so are contingent on a member of the
public claiming to have sustained hardship or injustice in consequence of maladministration
or service failure (section 5(3)). This case concerns an allegation of maladministration, and it
was not in issue that if maladministration was made out, the petitioner may have suffered
hardship or injustice.
[8]
There are limits to the SPSO's powers of investigation. The SPSO is, in general terms,
not entitled to question the merits of a decision taken without maladministration by or on
behalf of the university in the exercise of a discretion vested in the university (section 7(1)).
Nor is the SPSO entitled to investigate matters specified in schedule 4 of the 2002 Act
(section 8). Paragraph 10A of schedule 4 contains an exemption designed to leave areas of
academic judgement for the university. The SPSO may not investigate: "action taken by or
on behalf of [the university] ... in the exercise of academic judgement relating to an
educational or training matter".
[9]
The 2002 Act imposes time limits. Section 10(1) provides:
"(1) The Ombudsman must not consider a complaint made more than 12 months
after the day on which the person aggrieved first had notice of the matter
complained of, unless the Ombudsman is satisfied that there are special
circumstances which make it appropriate to consider a complaint made outwith that
period".
5
[10]
The wording of the powers conferred on the SPSO by the 2002 Act contain an
element of discretion. For example, section 2(1) of the 2002 Act says "may investigate", and
section 2(3) says it is for the SPSO to decide whether to initiate, continue or discontinue an
investigation. These statutory discretions are to be approached on the basis that Parliament
must have conferred them with the intention that they be used to promote the policy and
objects of the 2002 Act (Padfield and Others v Minister of Agriculture, Fisheries and Food and
Others [1968] AC 997 at 1030). It is common ground that the SPSO's decisions whether to
investigate or not are subject to the general public law controls on administrative decision
making, traditionally grouped under the broad headings of legality, rationality and
procedural fairness.
Ground 1 irrationality when declining to investigate the university's refusal of an
academic appeal any further
[11]
The first ground of challenge concerns the decision of the SPSO not to investigate
further the university's decision to refuse to allow the petitioner to appeal her degree
classification.
The background to Ground 1
[12]
The petitioner sought advice from the SRC about appealing her degree classification
on 15 June 2022, the day after she received her results. She gained some understanding of
the timescales for an appeal. The university publishes information about academic appeals
on a part of its webpages headed up "Academic Policy & Governance", where there is a link
to information about academic appeals (the "Academic Appeals policy"). The SRC advice
centre is mentioned as a source of advice in the Academic Appeals policy. Three permitted
6
grounds for appeal are listed: unfair or defective procedure, a failure to take account of
medical or other adverse personal circumstances, or relevant medical or other adverse
personal circumstances which for good reason have not previously been presented.
Timescales are given for submitting an appeal as follows:
"The first stage of the Appeals Procedure is to appeal to the College Appeals
Committee. You must submit a letter intimating your intention to appeal within
10 working days of publication of the decision. This should be submitted to the
relevant contact in the College Academic & Student Administration Team. You will
then have a further 20 working days to submit your full grounds for appeal and any
necessary supporting documentation".
[13]
The petitioner received her parchment (degree certificate) at graduation on 24 June
2022. She then submitted an intention to appeal to the university's school of law on 27 June
2022, and to the college of social sciences on 1 July 2022.
[14]
On 4 July 2022, after contacting the university's graduation team, the petitioner
received an email response which read as follows:
"Dear [AB],
Thank you for emailing. I will update the enrolment form for you. If you still have
your parchment, could you please return it to us as you are appealing. Once the
appeal has been settled you will then re-enrol for the earliest graduation and we will
present you a new parchment and [higher education achievement report]. Please
return it to the below address [an address was provided]...I hope this helps".
[15]
On 6 July 2022 the petitioner received a further email, sent on behalf of the college of
social sciences. It contained a response from the convenor of the college appeals committee
that he could see no reason to hear her appeal. The email stated among other things:
"The key issue here is that the former student wishes to appeal after they have
graduated. Regulation 26.3.7 is clear `a former student may not appeal once they
have graduated from the university. By graduating the former student is deemed to
have accepted the recommendation of the Board of Examiners and the Decision of
the appropriate College'".
7
The email referred to the FAQs of the senate (the senior academic body of the university),
containing advice that if a student wished to appeal they should not graduate until the
appeal process was complete. (This advice was also in the Academic Appeals policy
referred to above, to the effect that if a student graduates they are deemed to have accepted
the award, and so if they wish to appeal they must withdraw from graduation). The
convenor went on to say
"Given that [the petitioner] received the degree result on 14 June, sought advice from
the SRC on 15 June and graduation was on 24 June, there was sufficient time to bring
any health and other circumstances to the attention of the University and withdraw
from graduation. Accordingly, my view is that this appeal cannot be heard".
The email went on to say that any matter the petitioner wished to raise about unfavourable
treatment of English law students in comparison with Scots law students was properly for
the complaints procedure.
[16]
The reference to regulation 26.3.7 is to a regulation contained within the university's
Code of Procedure for Appeals by Students Against Academic Decisions. It is relevant to
note that regulation 26.3.7 was selectively quoted by the convenor in the email of 6 July 2022.
The next sentence of regulation 26.3.7 states:
"Exceptionally, if evidence emerges that the conduct of the Board of Examiners was
defective or that the Board was deprived of essential information, an appeal may be
allowed".
The convenor, in rejecting the academic appeal, made no mention of this exception.
[17]
In the decision of the SPSO dated 27 June 2023, the SPSO found that:
"...the university's decision to not hear your appeal was reasonable as it is in line
with Regulation 26.3.7, and you had graduated prior to submitting the appeal. The
University acknowledged the incorrect advice you were given by the Graduation
team".
At the end of that decision, as a "point to note", the SPSO stated:
8
"The university may wish to consider sharing this complaint response with the
Graduation team to minimise the risk of incorrect advice about returning parchments
in the context of students making an appeal being given in the future".
[18]
It is clear that the SPSO was aware of the part of regulation 26.3.7 allowing appeals
after graduation in exceptional circumstances, at least at the time of its review decision of
8 December 2023, because it is referred to in the review decision (paras 14-15). But the SPSO
declined to alter the decision not to investigate further. The SPSO found that no new
information had been provided by the petitioner, but in any case the university considered
the petitioner did not meet the exception because she could have provided information
about ongoing medical treatment sooner and her right of appeal was not accepted. The
SPSO indicated that the office of the SPSO was not a further right of appeal. Its role was to
consider if the university followed its procedures.
The parties' arguments in summary on Ground 1
[19]
The petitioner argued that the SPSO failed properly to take into account the
representation made by the university's graduation team in the email of 4 July 2022, and to
apply the doctrine of legitimate expectation. It was irrational for the SPSO to find that the
university behaved reasonably, when the university had not complied with its own
procedures, given the exception under regulation 26.3.7 and the 20 days to lodge a full
appeal under the Academic Appeals policy.
[20]
The SPSO on the other hand argued it had been correct to conclude it could do no
more than provide feedback, in the context of an admittedly misleading email provided by
the university on 4 July 2022 about returning the parchment. The email of 4 July 2022 did
not give rise to a legitimate expectation that the appeal would be heard. The conditions for
the exception were not met, and there could be no legitimate expectation of something that
9
was not within the university's powers. It was not unlawful for the SPSO to find that the
decision to hear an appeal was consistent with regulation 26.3.7 and properly considered the
material issues, in the context of the degree of the discretion the SPSO had.
Decision on Ground 1
[21]
The SPSO had powers to investigate maladministration or, as it was put in the
SPSO's review decision, to consider if the university followed its own procedures. Given the
factual background set out above, a number of questions arise about whether the university
had followed its own procedures.
[22]
First, the university's decision not to hear an academic appeal intimated to the
petitioner on 6 July 2022 selectively quoted part of regulation 26.3.7. It failed to recognise
that late appeals might be allowed exceptionally "if evidence emerges that the conduct of
the Board of Examiners was defective or that the Board was deprived of essential
information". Under the university's regulations, graduation was not a bar to appeals in all
circumstances. The decision of the university to reject the academic appeal shows no
evidence this exception was properly considered. Further, there appears to have been no
opportunity afforded to the petitioner to present evidence relevant to the application of the
exception before making a decision about it. The convenor's decision notes that the
petitioner had enough time to withdraw from graduation between getting her degree result,
taking advice from the SRC, and graduating. It may be true that time had elapsed between
those events, but the exception to regulation 26.3.7 raises different issues of whether
"conduct of the Board of Examiners was defective or that the Board was deprived of
essential information". If, for example, evidence emerged of a pattern of unjustifiable
discrimination in course provision impacting on exam preparedness between two cohorts of
10
undergraduate law students, or possibly of a failure of the university to react properly to a
known medical situation, the university might wish to consider whether this was essential
information of which the Board had been deprived. Of course, if any evidence produced
was considered, and found insufficient to establish either that the conduct of the Board of
examiners was defective or that the Board was deprived of essential information, an appeal
after graduation might not be permitted to proceed. But it is difficult to see how that
decision could properly be made, without any opportunity being afforded to the petitioner
to produce relevant information about the application of the exception, particularly given
the absence of any mention of the exception's existence or consideration of it in the
university's email of 6 July 2022. The SPSO's decision did not address that matter.
[23]
Second, the SPSO does not appear to consider whether the 20 day period for lodging
a full appeal in the university's Academic Appeals policy had a bearing on the application
on the exception in regulation 26.3.7. If procedural fairness required the petitioner to have
an opportunity to present evidence relevant to the exception before a decision was made
about it, some period had to be given to produce that evidence. It is possible that, on
investigation, it might be found that the 10 and 20 day period under the Academic Appeals
policy did not apply, and the exception was governed by some other provision. But at the
stage the SPSO was deciding whether or not to investigate, there was an unanswered
process question about time periods to provide information relevant to the application of the
exception, not apparently considered by the SPSO.
[24]
Third, the SPSO appears to have accepted that the email of the university's
graduation team of 4 July 2022 was misleading and erroneous. But the procedure suggested
in that email of returning a parchment might be appropriate, if there was an appeal within
the exception in regulation 26.3.7. No decision had apparently been made on 4 July 2022
11
that the petitioner's appeal was outwith that exception, so it is questionable whether the
graduation team's advice was wrong. It is true that the later decision of the convenor of the
college appeals committee of 6 July 2022 is inconsistent with the email of 4 July 2022. But the
SPSO does not appear to have considered whether it was in fact the decision of 6 July 2022
which failed to observe the university's own procedures, rather than the email of 4 July 2022.
[25]
The SPSO erred in leaving out of account these three considerations, which were
material to the issue of whether the university had properly followed its own processes. The
decision of the SPSO not to investigate the university's refusal to hear an academic appeal
further was irrational, because it failed to take into account these three relevant
considerations.
[26]
The first ground of challenge does not, however, succeed on an alternative basis of
legitimate expectation. The petitioner argued that the SPSO had erred in failing to consider
and apply the doctrine of legitimate expectation specifically, that she was entitled to bring
an academic appeal based on the university graduation team's email of 4 July 2022.
However, no such legitimate expectation arose in this case, and in any event the petitioner
did not bring the issue of legitimate expectation to the SPSO's attention in her complaint to
the SPSO. The SPSO argued there could be no legitimate expectation because a post-
graduation appeal was ultra vires the university's powers, and an expectation of something
ultra vires could not be a "legitimate" one (Ali Fayed v Advocate General for Scotland 2003 SLT
747 para [152]). That argument is not accepted, because regulation 26.3.7 clearly gave
powers to hear academic appeals after graduation for situations within the exception. The
more fundamental problem with legitimate expectation is that there is no clear and
unambiguous representation capable of founding entitlement to an academic appeal in the
email of 4 July 2022, particularly when read in the context of the university regulations.
12
Unlike in R(Bibi) v Newham London Borough Council [2002] 1 WLR 237 (where there was a
clear and unambiguous representation to provide legally secure accommodation to the
applicants within 18 months), the email of 4 July 2022 does not on its terms (set out in
paragraph [14] above) promise the petitioner an after-graduation appeal. Properly and
fairly read, the email of 4 July 2022 is about the administrative arrangements for return of
the parchment given to the petitioner at her graduation, and what would happen once the
appeal had been settled (a concept covering a variety of possible outcomes, including refusal
to allow the appeal to proceed as it was not within the exception, or a grant or refusal of the
substantive appeal if it were permitted to proceed within the exception). In these
circumstances, the SPSO did not err in failing to mention or consider legitimate expectation
expressly in its decisions.
Ground 2 jurisdictional error
[27]
The second ground of challenge concerns the petitioner's complaints about a number
of differences in treatment of students on the Scots law LLB and students on the common
law LLB. The SPSO declined to investigate further these aspects of the petitioner's
complaints. Ground 2 requires consideration of whether the SPSO erred by
misunderstanding the true nature of the petitioner's complaint (R (Kelly) v Financial
a decision based on a material error of law going to the root of the decision (Wordie Property
Co Ltd v Secretary of State for Scotland 1984 SLT 345 at p 347). It also raises issues of the extent
of the exclusion of academic judgement from the SPSO's investigatory remit (section 8, and
paragraph 10A of schedule 4 of the 2002 Act).
13
The background to Ground 2
[28]
The petitioner complained to the university about differential treatment between
students on the common law course and students on the Scots law course, to the
disadvantage of common law students. The university rejected her complaints at stage 2 by
letter of 23 November 2022. The petitioner asked the SPSO to investigate further. Her
applications to the SPSO raise a number of examples of differential treatment, which might
be summarised as follows.
[29]
The petitioner applied for the European Human Rights Project ("EHRP") in
May-June 2021. This was a popular project, and required a written application and a
selection process. No common law LLB students were selected, only Scots law students.
The petitioner complains that this was contrary to a university proportionality rule, which
provided that there should be a proportional amount of common law students to Scots law
students. The petitioner also complains of a different selection process being used between
common law and Scots law students. Scots law students were interviewed by three staff
members, with marks of panellists being averaged. But common law students were
interviewed by only one staff member, losing out on the opportunity that might arise for the
mark assigned being pulled up after averaging with two others.
[30]
Next, the petitioner complained about the Advanced Property and Trusts course,
which she took in her final year. Students on the Scots law LLB tended to take the Scots
property course, but all the common law students were on the Advanced Property and
Trusts course. The petitioner was concerned about grades awarded for the Advanced
Property and Trusts course. She considered them to be lower than those for comparison
courses. (The university indicated that the 13 students on the course all received A (1), B (4)
or C (8) grades). The petitioner complained about a number of aspects of the course which
14
she considered had led to the lower grades, which disproportionately affected common law
students. She complained of inadequate teaching. She complained of a lack of structure,
guidance and assistance offered by those teaching and marking the course. She complained
that staff did not adequately deal with her questions, and that her advisor of studies to
whom she was referred was not a property lawyer, so he could not assist. She complained
of poor programming, so that classes continued in a period other students had available for
dissertation writing, and the only revision session clashed with the day of the dissertation
deadline, so she and others were unable to attend.
[31]
The petitioner also complained about the commercial law course, which had an exam
sat by both Scots law and common law LLB students. She complained that the common law
students were given different reading, books and concepts to learn from the Scots law LLB
students, but had the same exam to sit. Ultimately, this resulted in the Scots law LLB
students doing proportionately better than the common law LLB students. She complained
of a member of staff declining to answer her commercial law questions during a period she
was revising, and referring her to her public law personal advisor instead.
[32]
Finally, the petitioner complained that common law students did not receive
information about dissertation preparation which was sent to Scots law students. They were
excluded from several emails about dissertation information and lectures. (The university
had acknowledged there had been an error, meaning that common law students did not
receive information relating to the dissertation, but stated that was later resolved). The
petitioner also considered that there was a lack of adjustments for students on the common
law LLB as opposed to the Scots law LLB.
[33]
The SPSO, in considering the petitioner's lengthy application, broke it down into a
list of six separate issues, to address in turn, and telephoned the petitioner to discuss this
15
with her. The SPSO then proceeded to make a decision which may be summarised as
follows. The SPSO found that it could not investigate what happened with the EHRP,
because that aspect of the complaint was time barred. The complaint to the SPSO had been
made on 12 December 2022, and the selection process for the EHRP was around
May-June 2021. There were no special circumstances under section 10 of the 2002 Act which
made it appropriate to extend the time bar. In relation to the Advanced Property and Trusts
course, the SPSO obtained the course handbook. The SPSO decided that the way to respond
to questions in advance of an exam was a matter of academic judgement, and that it was a
reasonable response for the petitioner to be directed to her adviser of studies. The marks for
the commercial law course were a matter for academic judgement. It was a matter of
academic judgement how to handle correspondence with students about course content. On
review, the SPSO agreed that the EHRP complaint was time barred, and in any event could
not be investigated because it was a matter of academic judgement.
The parties' arguments in summary on Ground 2
[34]
The petitioner argued that her complaints were about unjustifiable differences in
treatment between students on the common law and Scots law LLBs. They were about
discrimination, not academic judgement. The SPSO had misunderstood the extent of its
jurisdiction, wrongly excluded a number of matters within its jurisdiction, and failed to
appreciate the true nature of the complaint. To the extent that any of the petitioner's
complaints were made over 12 months after she knew of the problems (for example in
relation to the EHRP), the SPSO should have found there were special circumstances to
consider the complaints, because they were part of a pattern of discrimination.
16
[35]
The SPSO argued that it had taken a discerning approach to the multitude of issues
raised before it. The SPSO considered the issues which fell within its jurisdiction, and
rightly excluded those which were matters of academic judgement, including the EHRP. In
relation to timebar, the SPSO had considered in its decisions whether there were special
circumstances to extend it, and it was a reasonable decision to decide there were no special
circumstances.
Decision on Ground 2
[36]
The exercise by the SPSO of its powers must be reviewed in the context of the policy
and objects of the Act which confers those powers (Padfield). Construing the 2002 Act as a
whole, the starting point is that its preamble states it makes provision for the appointment
and functions of the SPSO. The Act confers powers of investigation in section 2, but only in
relation to bodies listed in schedule 2 of the Act, and only in relation to limited matters such
as maladministration and service failure. The bodies listed in schedule 2 are public bodies,
or bodies that receive an element of public funding. Looking at these various provisions of
the 2002 Act, the broad purposes of the 2002 Act are that listed bodies in receipt of public
funding are subject to investigation by the SPSO, so that they can be held accountable for
maladministration.
[37]
Parliament could have exempted universities from the SPSO's investigative remit,
but chose to include them in schedule 2 of the 2002 Act. Although there is an exception so
that the SPSO may not investigate actions which are the exercise of academic judgement,
care has to be taken so the exception is not so widely drawn that it undermines the policy of
the Act for universities to be subject to some areas of investigation. Administrative action by
the university which is not an exercise of academic judgement is, in general terms, intended
17
to be open to investigation by the SPSO. The line between actions exercising academic
judgement and administrative action subject to the SPSO's review may not always be easy to
draw, and much will depend on the circumstances. But it does not follow from grades
assigned to students being matters of academic judgement that all aspects of university
courses or selection processes are excluded from the SPSO's jurisdiction.
[38]
In this case, the SPSO was faced with a lengthy and relatively unfocussed complaint
from the petitioner. Complaints of this nature run the risk of obfuscating the true
underlying issues. The approach the SPSO took of breaking down the complaint into
particular issues, and determining them in turn, was understandable, aiming to provide
some structure for the SPSO's decision making. Nevertheless, in the result, breaking matters
down in that way distracted the SPSO from the underlying theme or true nature of an
important aspect of the petitioner's complaint, of systemic discrimination between students
on the common law LLB and students on the Scots law LLB.
[39]
This is evident first in the approach of the SPSO to time bar, which led the SPSO to
exclude the complaint about the EHRP from investigation. The general rule in section 10(1)
of the 2002 Act is a 12 month time bar, but that time bar can be extended if there are special
circumstances. The SPSO's decisions stated there were no special circumstances, but did not
discuss what had or what had not been taken into account in reaching that decision. If the
SPSO had properly appreciated the true nature of the complaint - systemic discrimination
between those on a new course and those on an established course the approach to time
bar may have been different. The petitioner cited the case of Anyanwu v South Bank Student
Union [2001] 1 WLR 638 para [24], a case in which the court refused to strike out a
discrimination claim by a student against a university, which contains a comment about
"high public interest". It does not follow that all complaints involving allegations of
18
discrimination raise special circumstances. Nevertheless, the fact that an issue of systemic
discrimination in the administrative provision of a new course was raised, affecting people
other than the petitioner, appears to be a relevant consideration for the SPSO in whether to
extend a time period. Further, there is no consideration by the SPSO of the EHRP being
raised as just one example in a continuing pattern of discrimination. The continuing nature
of a ground may be a relevant factor in consideration of whether there should be an
extension of a time limit (O'Neill v Scottish Ministers 2022 SC 125 paras 9 and 14). Either the
SPSO did not take into account these relevant considerations, or if it did, it provided
inadequate reasoning on the timebar extension. The failure to consider discrimination,
which was continuing, in the context of timebar, tends to suggest that the SPSO failed
properly to appreciate the true nature of the petitioner's complaint, and the extent of its
jurisdiction.
[40]
The failure properly to characterise the petitioner's complaint was also significant in
the SPSO's decisions about what was within its jurisdiction to investigate. As the Inner
House already said in this case:
"It is within the respondent's powers to investigate alleged discrimination. We are
not dealing with the situation where the SPSO recognised that the complaint was of
discrimination but declined to investigate it because she considered that the courts
were better placed to adjudicate on it (R (Maxwell) v Office of the Independent
If, in the administration of a course, one group of students is unjustifiably given more
favourable treatment than another, resulting in disadvantage to the second group, that can
give rise to an issue of maladministration, not merely academic judgement. The fact that
discrimination might also be investigated in a court or tribunal does not automatically
deprive the SPSO of jurisdiction conferred under the 2002 Act.
19
[41]
In the present case, the petitioner complained about some matters which involved
academic judgement, but some which did not. For example, which students should be
selected for the EHRP on merit was an exercise of academic judgment. But whether there
was maladministration in the selection process, for example if the university did not apply
its own proportionality rule to the EHRP, or adopted a method of selection using a panel of
three for Scots law students but not for common law students, were not matters of academic
judgement but of administration. In relation to the Advanced Property and Trusts course,
the grades to assign particular students were academic judgement and not within the
SPSO's remit. But an alleged failure of the university to provide staff to provide, teach and
mark the course adequately, so that the course lacked structure and students lacked
guidance, and were subject to poor programming resulting in clashes with other course
commitments (the revision session and the dissertation), are matters which raise issues of
potential maladministration. In relation to the commercial law course, an allegation that
common law students were given different reading, books, and concepts to learn from the
Scots law students, although sitting the same exam in which Scots law students did
proportionately better, involves issues of administration not academic judgement. Finally,
provision of information about a dissertation which both Scots law and common law
students had to do to only the Scots law cohort was again an administrative matter, not one
of academic judgement.
[42]
The problem with the decisions of the SPSO is that they do not cover all of these
areas of potential maladministration raised in the petitioner's complaint. Nor do they
properly address the underlying allegation of systemic discrimination, which the various
different examples are argued to demonstrate. The SPSO was correct to say in its decision of
27 June 2023 that decisions about answers to give to student questions about legal issues
20
taught on the Advanced Property and Trusts course, and marks given for the commercial
law course, were matters of academic judgement. But those are just some of the matters
raised in the complaint of alleged discrimination between common law and Scots law
students. Other matters raised by the petitioner clearly raised potential issues of
maladministration and not academic judgement. In particular, it was incorrect for the SPSO
to suggest in the review decision that the aspect of the petitioner's complaint concerning the
EHRP raised only issues of academic judgement. It also raised issues of process and
administration, and the SPSO had jurisdiction to investigate if selection was on a
discriminatory basis.
[43]
The court therefore finds that the SPSO did not give proper effect to the policy and
objects of the investigatory powers conferred by the 2002 Act when declining to investigate
aspects of the petitioner's complaint about discrimination any further. In a situation in
which the petitioner's complaint had raised multiple issues of differential treatment between
Scots law and common law student cohorts, many of which were said to result from the way
the courses were administered, potential issues of maladministration arose. There was a
failure to appreciate the true nature of the complaint of systemic discrimination made by the
petitioner. The SPSO erred by misunderstanding and misapplying the scope of the
jurisdiction conferred under the 2002 Act when declining to investigate further. That was a
material error of law going to the root of the questions for determination before it.
Alternatively, if the SPSO did properly appreciate the extent of its jurisdiction, inadequate
reasons were provided for declining further to investigate the issue of systemic
discrimination and the potential areas of maladministration identified in paragraph [41]
above. The second ground of challenge also succeeds.
21
Ground 3 reasonable adjustments
[44]
The third ground of challenge concerns the SPSO's decision not to investigate further
the petitioner's complaint about mental health. The petitioner's complaint was that the
university failed to provide her with information about disability services available, and
failed to make appropriate adjustments. (This was also a substantive ground of appeal the
petitioner wished to advance in her academic appeal against her degree classification). The
petitioner argues that the SPSO's decision not to investigate that matter further was in error
of law and fact.
Background to Ground 3
[45]
The petitioner suffered from anxiety and depression, and panic disorder, from the
second year of her studies. After she finished her degree, she complained to the university
that it failed to direct her to the university's Disability Service, or inform her about the
possibility of reasonable adjustments beyond coursework extensions. The university did not
uphold her complaint in its stage 2 decision dated 23 November 2022. That decision stated
that the university had invited her to meet and talk more about her situation, and granted
her extensions under the Good Cause policy. Reasonable adjustments could only be
implemented where they had been recommended by the Disability Service through a formal
needs assessment. Although it was not clear whether the petitioner had been advised
expressly about the Disability Service, she had received a wealth of information about
support services, including on webpages, Moodle and at induction.
[46]
The petitioner asked the SPSO to investigate this aspect of her complaint further. In
the petitioner's application to the SPSO, she complained that she had sought help from
various teachers about mental health issues on numerous occasions, but was not
22
appropriately signposted to services by the school of law. She had made contact with her
personal advisor, and the counselling service, and had received extensions under the Good
Cause policy. But she had not been referred on to the Disability Service. Had she been
referred to the Disability Service for help and adjustment, she believes that her experience in
her final year would have been different. She also believes further adjustments should have
been made over her time at university, for example her application to retake a third year
anti-discrimination law course should have been granted, and there is mention in the review
application of being permitted to defer for a year. Overall, she believes that if proper
adjustments had been made, she would have been in a better position. That was particularly
so in the commercial law course for common law students. She also felt the university
should have obtained input from her personal advisor before determining the complaint,
and the person who determined the complaint should have met with her. She had paid
roughly £36,000 for her degree to the university, and felt let down by the institution.
[47]
In reaching its decision under challenge, the SPSO reviewed the undergraduate law
student handbook 2021/2022 and noted there were sections on health and well-being and
disability matters. The SPSO noted that the university webpages contained information
about wellbeing topics and the Disability Service. The SPSO confirmed with the university
that it had granted three extensions to the petitioner, in competition law, advanced property
and trusts, and for her dissertation, under the Good Cause policy. The SPSO noted that the
Good Cause policy did not cover ongoing chronic concerns, and the policy advised
contacting the Disability Service in those circumstances. In light of that investigative work,
the SPSO concluded in its decision of 27 June 2023 that the university's response to the
petitioner's complaint was reasonable, given that information about the university's
resources was available in the student handbook and webpages, and the Good Cause policy
23
specified actions to take in ongoing or chronic situations. Accordingly, further investigation
of that point was not required by the SPSO. On review, the SPSO noted again that the
petitioner was able to submit good cause applications for extensions, had access to
university webpages which contained information about wellbeing and the Disability
Service, and declined to alter its decision.
The parties' arguments in summary on Ground 3
[48]
The petitioner argued that there was an error of fact. The petitioner produced a
document from the Student Services Enquiry Team headed "How to submit a good cause
claim", which gave information about how practically to submit a good cause claim online.
She submitted that it did not say anything about the Good Cause policy not being for on-
going or chronic situations, and it was therefore an error of fact for the SPSO in its decisions
to say it did. The petitioner further argued that the SPSO's decision was irrational. The
duty to make reasonable adjustments was anticipatory and personal (the University of
information to the university showing she had mental health problems, and she was not
signposted to the Disability Service or afforded reasonable adjustments. It was irrational for
the SPSO to find that online information was sufficient when the petitioner had provided
that information.
[49]
In response, the SPSO submitted there was no error in fact. In the SPSO's decision,
there was a footnoted link overlooked by the petitioner. It took the reader to a webpage
within the Academic Policy & Governance section on the university's website, entitled
"Good Cause the Basics", which was the Good Cause policy. In the General Points link on
that page, it said:
24
"Note that good cause is concerned with an assessment that has been affected. It
does not cover an on-going, or chronic, situation that affects attendance at classes
and lectures or your ability to engage in the learning during semester...many
students have on-going difficult circumstances or medical problems ...for on-going
or chronic circumstances the Disability Service can recommend any appropriate
adjustments...but these arrangements take time to put in place so you should make
contact at the earliest possible opportunity. Remember it is in your interest to ask for
help and make use of the support offered to help you manage your circumstances".
The SPSO argued that it was entitled to find that the response from the university was
reasonable and decline to investigate further. The reasonableness of the decision had to be
assessed against the background that many students have mental health issues. It would
have been inappropriate for the SPSO to enter into a quasi-judicial assessment of whether
there had been a breach of the duty to provide reasonable adjustments under section 20 of
the Equality Act 2010, because that was not the SPSO's function. If the petitioner wished
that, her remedy was to bring legal proceedings directly against the university.
Decision on Ground 3
[50]
The SPSO's decisions contained an adequate summary of the university Good Cause
policy, footnoted in its decision of 27 June 2023, and there was no error of fact. That leaves
the petitioner's argument that the SPSO's decision not to investigate the university's failure
to signpost her directly to Disability Services and to make reasonable adjustments was
unreasonable.
[51]
There is no dispute between the parties that the Abrahart case sets out the law on
reasonable adjustments in a university context. Providers of education are not expected to
anticipate the needs of every prospective student, but are required to think about, and take
reasonable steps to overcome, barriers which impede people with different kinds of
disability, for example impaired vision or impaired mobility (para 158 and 161). Particular
25
steps for a specific student might be indicated, if a student has pointed out their difficulties
or suggested reasonable solutions to them (para 161). However, in this petition for judicial
review, the court is not considering whether the university adequately provided reasonable
adjustments to the petitioner. By analogy with R (Maxwell) v The Office of Independent
review the petitioner's complaint, to see if the university's decision to reject her complaint
that she should have been referred to Disability Services and given further adjustments was
reasonable in all of the circumstances and was justified. The SPSO's function is not to
adjudicate on the issue of whether or not there has been disability discrimination, and
judicialisation of the SPSO's function is neither intended nor desirable (Maxwell, para 37).
The court's function is to review whether the SPSO's decision was lawful, rational and
procedurally fair.
[52]
Applying that approach, the remaining ground of challenge under ground 3 is one of
irrationality. The decision in question is the finding of the SPSO that the university's
response to the petitioner's complaints about medical support was reasonable, given that
information was available in the student handbook and webpages, and the Good Cause
policy specified actions to take in ongoing or chronic situations. Mere disagreement with
the SPSO's decision is not a ground of review. The SPSO's decision has to reach the
standard of being so unreasonable that no reasonable decision maker would reach it, for the
court to intervene on irrationality grounds. The SPSO had before it information (including
from the university's complaint response) that the petitioner had been given some support,
for example meetings with university staff to discuss problems, extensions for three courses
through the Good Cause policy, and the petitioner mentioned counselling. Many students
have ongoing difficult circumstances or medical problems, as noted in the Good Cause
26
policy. Web pages are a way all can be reached. The online Good Cause policy makes it
clear it is for the student to contact the Disability Service in cases of ongoing or chronic
conditions. A university is, in general terms, entitled to expect students to be able to access
information on web pages, for example about the Disability Service. The petitioner is clearly
an intelligent and able person, who can access the internet; and had shown herself capable of
accessing other university services (such as the SRC and the graduation team). Even if other
decision makers might reach a different decision on this aspect of the petitioner's complaint,
the SPSO's decision not to investigate further was within the range of reasonable responses
available to it. The third ground of challenge therefore fails.
Remedy
[53]
The first two grounds of challenge succeed. The appropriate remedy is reduction of
the decisions of the SPSO of 27 June 2023 and 9 December 2023. The SPSO is a public body
and can be expected to proceed as accords. It is not necessary to grant the other orders
sought by the petitioner. The issue of expenses is reserved. If parties are unable to agree
about expenses in the light of the outcome of the case, they may make a motion to the court.
[54]
In concluding, the court observes that this case is concerned only with the powers of
the SPSO to investigate the petitioner's complaints further. The case does not decide
whether the university was wrong to deny the petitioner an academic appeal, or whether
there was discrimination by the university in the provision of its common law LLB course to
the petitioner. The SPSO must now reconsider whether or not to exercise its investigatory
powers further, avoiding the errors highlighted in this decision.