COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD ADMINISTRATIVE COURT
Mr JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE RICHARDS
| THE QUEEN ON THE APPLICATION OF SIBORUREMA
|- and -
|OFFICE OF THE INDEPENDENT ADJUDICATOR
John Hamilton (instructed by Lupton Fawcett) for the Interested Party
Hearing dates : 6 & 7 November 2007
Crown Copyright ©
LORD JUSTICE PILL :
"On the face of it, this application seems hopeless".
Sir Henry Brooke added:
"However, the appellant has raised issues about the fairness of the process adopted by the Independent Adjudicator and the power of [OIA] which, in my view, warrant the consideration of the Court of Appeal, since this is a comparatively new jurisdiction. [OIA] has raised an issue as to whether [OIA] is amenable to judicial review at all, and this should also be decided".
An extension of time was granted. Mitting J had found that the appellant's central submission was "simply unarguable". As to the issue whether OIA could be challenged by way of judicial review, he stated:
"There is no point in having it decided in a vacuum in a case such as this without legal merit".
The Statute and the Scheme
"(1) The Secretary of State may, for the purposes of this Part, designate a body corporate as the designated operator for England as from a date specified in the designation.
(2) The [Welsh] Assembly may, for the purposes of this Part, designate a body corporate as the designated operator for Wales as from a date specified in the designation.
(3) The Secretary of State or the Assembly may not designate a body under subsection (1) or (2) unless he or the Assembly is satisfied that the body –
(a) meets all of the conditions set out in Schedule 1,
(b) is providing a scheme for the review of qualifying complaints that meets all of the conditions set out in Schedule 2, or is proposing to provide such a scheme from a date not later than the effective date,
(c) has consulted interested parties about the provisions of that scheme, and
(d) consents to the designation.
(4) . . .
(5) In this Part –
(a) . . .
(b) any reference to the designated operator is –
(i) in relation to an institution in England, a reference to the body designated under subsection (1), and
(ii) in relation to an institution in Wales, a reference to the body designated under subsection (2)".
"The designated operator must comply with the duties set out in Schedule 3 during the period specified in that Schedule".
Section 15(1) provides:
"The governing body of every qualifying institution in England and Wales must comply with any obligation imposed upon it by a scheme for the review of qualifying complaints that is provided by the designated operator".
"For the purposes of the law of defamation, any proceedings relating to the review under the scheme of a qualifying complaint are to be treated as if they were proceedings before a court".
Section 19 amends the time limits for bringing claims under the statutes dealing with discrimination by extending the period allowed where the dispute concerned is referred as a complaint under the Scheme. Section 20 excludes Visitors' former jurisdiction in relation to student complaints.
"The Reviewer will carry out a review of the complaint to decide whether it is justified in whole or in part".
Paragraph 6.2 provides:
"The review will normally consist of a review of documentation and other information and the Reviewer will not hold an oral hearing unless in all the circumstances he or she considers that it is necessary to do so".
Save as cited, Schedule 2 of the Act is silent as to the extent of OIA's duty to investigate when deciding whether a complaint is justified.
"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".
"Rule 7.3 of the Scheme is in permissive terms, but in practice OIA only asks itself the question set out in that rule".
Baroness Deech provided a commentary on the Scheme, as she believes it should operate. OIA desires "to avoid a legalistic approach":
"Many of those complaints could be taken to the courts, but students choose to come to us because we offer a speedy, user-friendly and free service and because our decisions are based on fairness and a consideration of higher education practices rather than legal rights. If a student does not accept the determination of a complaint under the Scheme, then he or she is free to seek a remedy by going to the courts".
"In our experience, the mere possibility of judicial review causes delay and expense. OIA deals with over 500 complaints a year, all of which will have already been subject to the rigours of an HEI's own internal complaints procedures. Students and HEIs need to have complaints reviewed swiftly without excessive formality or legalism so that the parties can move on".
Baroness Deech added:
"For all of these reasons, I firmly and strongly believe that the efforts of OIA to serve students and HEIs cheaply and efficiently would be hindered significantly if decisions made under the Scheme were to be subject to judicial review".
"If there are mitigating circumstances (serious illness or the death of a close relative) which prevent you from taking an examination or from handing in your coursework, or which you think has adversely affected the quality of your work, you can claim mitigating circumstances. It is important to do this BY THE PUBLISHED DEADLINE, which is always BEFORE the Examination Board. Do not wait until you have your results; it will be too late then".
The appeal had been based on mitigating circumstances which, it was claimed by the appellant, could not be divulged to the Examination Board. The Appeals Officer stated that "there appears to be no valid reason why you could not disclose these mitigating circumstances by the published date to do so". It was also stated:
"Moreover, the documentary evidence you have presented as evidence does not appear to cover or support the episodes of stress/illness and marital breakdown you have referred to in your appeal".
"It is not acceptable to simply state that I should have disclosed my mitigation according to a regulation rather than actually considering my mitigation on the nature of my circumstances effect on my ability to study. My overall profile is high and my failure in these units is simply a reflection of my stressful extenuating circumstances".
The appellant stated that he was unaware of any published date for claiming mitigating circumstances. He added:
"I am on a professional course and it is not encouraged on a professional course to bring your personal problems into this environment. As far as I was aware the appeals process was the appropriate forum and I disclosed my mitigation at this point and I do not feel it was appropriately considered. My overall profile is high and I do not believe that the Exam Board should have withdrawn me for failure on these two units only. Rather they should have reviewed my profile and considered that there must be a reason why I should fail these two units when generally I receive good marks. In my completion of procedures letter it is stated that my documentary evidence does not appear to cover or support the episodes of stress/illness and marital breakdown referred to in my appeal. I would like to reiterate that my problems were ongoing not isolated dates relating to my exam. I came over to England as an asylum seeker in 2000".
". . . when you have been through terrible times resulting in you having to leave your country for safety and believing all your family are dead it is not easy to disclose this information as it results in you reliving painful times from the past which you are trying to put behind you. The entire situation with my mother and my wife has been very stressful. . . . the evidence that I have sent to support my appeal was not to show a correlation between events and exam dates but to shed light on the turmoil which I have to go through every day".
A Personal Development Advisor at the University also became involved and on 15 June 2005 he referred the appellant to a consulting service for assessment.
"The University did not find any valid reasons why your mitigating circumstances could not be disclosed at the appropriate time. We accept that it is a student's responsibility to make tutors/other staff aware of personal difficulties affecting his or her work at the time at which they are of concern.
The University's Regulations state that a student cannot claim mitigating circumstances on the grounds that he/she was unaware of the regulations. It is reasonable that the HEI should have such regulations and that it is the student's responsibility to make himself / herself aware of them.
Furthermore, the University noted that the dates of the documentary evidence submitted in support of your claim did not correlate with the episodes of stress / illness and marital breakdown referred to in your appeal. Although Mr Siborurema states that the documentary evidence indicates that his problems were ongoing, I do not find this relevant to your complaint as the mitigating circumstances were submitted out of time".
"If a student has three failures on the second submission, the student will normally be required to repeat the units with attendance. Students will interrupt their programmes and rejoin another group".
"Our client was not offered the opportunity to attend lectures again in order that he would prepare fully for his re-sit".
The reference to "his re-sit" is difficult to reconcile with the requirement in fact in 11.6.2 to "repeat the unit".
"We note that you stated in respect to our point that our client was not offered the opportunity to attend lectures again, that you would not be able to look at this point as it had not been through the Internal Complaints Procedure. This is not a complaint as such but more a remedy that the university should have offered when our client failed his examinations. The university failed to do this even though it is set out in their rules and regulations and therefore, it will clearly be for the Office of the Independent Adjudicator to adjudicate on this matter".
Ms Brown replied that she would ask the University for its comments as to why the appellant "was not offered further help for his re-sits" or the opportunity to "repeat the units with attendance".
"On 27 July 2005 Isobel Brown of this office advised you that her preliminary view of your complaint was that it was not justified.
I am in receipt of your letters of 16 September and 23 September 2005. Having reviewed the file and taken into account further information provided by the University, I do not consider that it would serve any purpose to investigate your complaint further. This is because I consider the University's decision to be reasonable in the circumstances, and that they have followed their procedures. Regulation 11.6.2 states that "if a student has three failures on a second submission, the student will normally be required to repeat the unit with attendance". We note that the University did consider offering Mr Siborurema the opportunity to repeat the unit with attendance but that it was considered to be more appropriate to allow him to resit the exams with tutorial support.
Furthermore although Mr Siborurema states that he was unaware of the published date for submitting mitigating circumstances, the University did consider these and we consider it reasonable that the University came to the decision that these were invalid as no medical evidence was supplied to support Mr Siborurema's claim. Accordingly you should regard this letter as our formal decision that your complaint is not justified. I enclose a copy of the letter which was sent as part of the University's submission.
I am sorry that my letter will be disappointing to your client. Your client is free to pursue other action against the institution if you wish".
"We do not normally enter into correspondence about the merits of a complaint once our Formal Decision is issued.
Your client's situation is a sad one but the University is entitled to exercise its discretion having regard to maintaining professional standards in nursing as well as to your client's own situation.
Our decision does not affect your client's right to take other action against the University".
"The Reviewer will carry out a review of the complaint to decide whether it is justified in whole or in part".
That requires a consideration of the merits, it is submitted, including an investigation of the facts. Paragraph 7.3, already cited, is unlawful if it does not require consideration by OIA of the merits of a complaint. The provisions of paragraph 6.1 are comprehensive and must be read into paragraph 7.3. Mr Jones relies on the statement of Baroness Deech that OIA's decisions "are based on fairness and a consideration of higher education practices rather than legal rights". That requires a merits enquiry, it is submitted.
"The Visitor enjoys untrammelled jurisdiction to investigate and correct wrongs done in the administration of the internal law of a Foundation to which he is appointed: a general power to right wrongs and redress grievances and if that on occasions requires the visitor to act akin rather to an Appeal Court than to a Review Court, so be it. Indeed there may well be occasions when he could not properly act other than as an essentially appellate tribunal".
That latter approach, it is submitted, should be followed by OIA.
"A public body almost always has a duty in public law to consider whether it should exercise a power".
The power should have been exercised in this case, it is submitted.
"Rule 7.3 of the Scheme is in permissive terms but in practice the OIA only asks itself the questions set out in that rule".
It is unlawful, it is submitted, to follow that practice, which is categorised by Mr Jones as applying a rigid and exclusive rule.
(a) Because the University's letter of 21 November was not disclosed to the appellant, he had no opportunity to comment on the reference to not wishing to penalise him financially.
(b) While OIA need not have considered University Regulation 11.6.2, because it had not been raised during the internal University procedures, OIA did raise it and, having done so, had to deal with it adequately, which it did not.
(c) OIA considered only the validity of the mitigating circumstances and not, as it should have done, their weight, as the University had purported to do. OIA's reference to medical evidence related merely to whether the mitigating circumstances should be considered at all on the ground that they had not been raised before the examination was sat. The merits were not considered.
(d) The Formal Decision Letter must be sufficient in itself and the decision was not adequately reasoned in that letter.
(a) OIA was entitled to find that the University's decision was reasonable in the circumstances and that they had followed their procedures. Reference was made to regulation 11.6.2 and the merits of the University's decision were considered.
(b) A finding that a complaint was not justified because the option offered was for a re-sit was a lawful finding. The University had offered more than its Regulations, which are not challenged as such, required, when offering a further opportunity to pass.
(c) The absence of an opportunity to re-sit, with attendance at lectures, was not, according to the solicitors' letter of 23 September 2005, "a complaint as such".
(d) The reference to financial position had not been through the University's internal procedures and was not eligible for consideration.
(e) Further submissions on the financial point now raised could not have affected the decision.
(f) The reference in the decision letter to medical evidence demonstrates that the weight as well as the validity of the mitigating circumstances claimed was considered.
(g) The Formal Decision Letter should be read with the Preliminary Review of 27 July 2005 in which both the formal and substantive aspects of the claim were considered.
(a) Though it is not necessarily determinative, the entire procedure for dealing with student complaints about the decisions of HEIs is set up by statute. That is an important aspect.
(b) The Secretary of State (and the Assembly in Wales), may designate a body corporate as the designated operator for review of student complaints (Section 13 of the 2004 Act).
(c) OIA has been so designated.
(d) The body must not be designated unless the designating body is satisfied that it is providing a scheme for the review of qualifying complaints that meets conditions set out in Schedule 2 to the Act (Section 13(3)).
(e) The designated operator must comply with duties set out in Schedule 3 (Section 14).
(f) The governing body of every qualifying institution must comply with any obligation imposed on it by the scheme (Section 15(1)). There is a strong public element and public interest in the proper determination of complaints by students to HEIs.
(g) The range of potential complaints is broad and the function contemplated for OIA cannot be categorised merely as regulating contractual arrangements between student and HEI.
(a) Reference by OIA to the HEI's regulations and procedures is not inappropriate. Respect is due to the regulations and procedures of an HEI and to the decisions of those who operate them. In many cases, consideration of the regulations and procedures will be an appropriate starting point for an assessment of whether a complaint is justified.
(b) The second limb of paragraph 7.3 is amenable to a very broad construction. That is appropriate given the broad range of complaints which may be made. It does not prevent a review of the merits in a particular case.
(c) The paragraph does not limit the very generally expressed provision in paragraph 6.1: "The Reviewer will carry out a review of the complaint to decide whether it is justified in whole or in part".
b) The Particular Case
(a) The University's Appeals Officer, in dismissing the appeal to him on 27 May 2005, relied on the failure of the applicant to make his claim that there were mitigating circumstances at the appropriate time, that is before the decision of the examination board.
(b) The Appeals Officer also expressed a view on the relevance of the mitigating circumstances.
(c) In his application to OIA, the applicant argued that as far as he was aware the appeals process was the appropriate forum in which to disclose his mitigation. He also argued that the Appeals Officer had not considered his mitigation and that any inconsistency of timing between the mitigating circumstances and the examination failure was irrelevant because the problems were "on going".
(d) The applicant had been strongly advised to seek support and guidance from the unit leader prior to sitting the exams and in the summer of 2005 he was assisted by a Student Advisor and a Personal Development Adviser at the University.
(e) In her Preliminary View, the Reviewer found the University's Regulation 10.10 and their reliance on it to be reasonable. She also referred to their comment on the merit of the circumstances relied on.
(f) Following the Preliminary View, the point was taken on behalf of the appellant that he was not offered the opportunity to re-sit with attendance at lectures. OIA took the point that, on this issue, the appellant had not exhausted the internal complaints procedure, as required by paragraph 4.1 of the Scheme (and contemplated by paragraph 3(2)(b) of Schedule 2 to the 2004 Act).
(g) In the Formal Decision Letter, the University's decision was said by OIA to be reasonable in the circumstances. That conclusion had regard to the decision not to give the opportunity to repeat the Unit but to allow a re-sit with tutorial support.
(h) OIA also considered that the decision reached by the University on the mitigating circumstances was reasonable.
LORD JUSTICE MOORE-BICK :
LORD JUSTICE RICHARDS :