England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATION COURT
(MR JUSTICE MCCOMBE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th November 2009

Lord Justice Thomas:

1. There is before the court an appeal which raises a short point of construction of regulations made by Oxford Brookes University. We are concerned with a version that was current during 2004/5 and at least the early part of 2006, and the regulation has since been revised after dispute arose in this matter. The dispute and this appeal, therefore, is very much on a one-off point of construction.
2. The dispute arises out of the following circumstances. In June 2004 the claimant, Ms Amanda McKoy, who is the respondent to this appeal, became a student for a BSc in Midwifery at Oxford Brookes University, the appellants to this appeal and defendants to the original action. The course was an accredited course, accredited by the Nursing and Midwifery Council ("the NMC") pursuant to Article 15 of the Nursing and Midwifery Order 2001. The course would lead to entry, if passed, onto the register held by the NMC for midwives. It is important to point out the NMC had set certain minimum standards as to the content of the courses and the assessment of students, so as to be sure there was proper protection of the public, and I have no doubt that the university had the proper protection of the public at the forefront of their minds in all that has happened in this case.
3. It is necessary to describe in a little more detail the nature of the course undertaken by Ms McKoy. The programme she was undertaking was an undergraduate modular programme, which was governed by regulations called the Undergraduate Modular Programme Regulations. The issue in this matter turns upon the construction of one of those regulations. To understand that, it is necessary to describe in a little more detail the course she was undertaking. The course was organised on the basis of fields which were taught through self-contained units of teaching and assessment known as "modules". In general, in order to be awarded a degree a student needed to obtain eight basic module credits and 16 advanced module credits. It is also important to appreciate that some of the modules were compulsory for each particular course, but some were optional. To obtain a degree the student had to pass all the compulsory modules and obtain a total of eight basic and 16 advanced module credits from amongst the modules that were acceptable in the fields.
4. The normal course at Oxford Brookes University took three years to complete. However, the course undertaken by Ms McKoy was designed on the basis that students who joined that course were already registered nurses. The course was therefore designed to take approximately 18 months or 78 weeks, beginning in the June of one year and concluding in the December of the following year. As the students all had nursing qualifications, they were credited with the eight basic modules upon enrolment and were only required to obtain 16 advanced modules. However, 15 of those were compulsory. During the programme students were employed as midwife students by the Oxford Radcliffe Trust.
5. During the first year of the programme it appears that Ms McKoy passed the modules required with the exception of module U41740. The course ended in December 2005, and during the last part of the course she took further modules. She passed the module that she had failed, but the question then arose as to the other modules she had taken. An examination committee meeting took place on 17 January 2006. That committee decided that Ms McKoy had failed three modules. One, which is not relevant to the issue before us, was a double dissertation module, but the others were two practice modules, U41733 and U41750. The examination committee refused to allow her to retake either of those modules. It is very clear from the statement of Ms Bower, the Programme Leader in Midwifery at the university, who was present at the examinations committee meeting, that the committee considered it had discretion whether to allow her to take the modules again. It considered that there were no extenuating circumstances that would permit them to do so. She made clear that it was the committee's view that Ms McKoy's performance to date had shown she would not make a professionally competent midwife and they were therefore concerned as to the danger that would arise to the public if she was allowed to continue on the course.
6. The decision made on 17 January was communicated by Dr Scurry, the Dean of the Modular Programme in a letter to Ms McKoy. It stated at the outset the following:

"I regret to inform you that your results to date do not satisfy the course requirements. The Examinations Committee has therefore decided that you must be withdrawn from the Midwifery course immediately."

The letter then went on to offer a transfer to another course.

7. Ms McKoy -- it appears unlike any students who had been placed in the same position -- decided to consult solicitors. The solicitors wrote asking for amplification of the reasons. They pointed out that, although she had passed 12 of the modules, she had received an F grade in the other three, which, according to the course requirements, meant that she was not able to proceed further without retaking the module. They asked why she had been denied the opportunity to retake the modules and asked a number of particular questions to which it is necessary to refer. It is more convenient to do that when setting out the answers given.
8. Dr Scurry replied on 18 February in the following terms:

"In answer to your question about failed modules, the definition quoted is to distinguish it from a resit grade. A resit entitles the student to reassessment without retaking the module whereas a fail does not. Of course in Miss McKoy's case she has been withdrawn from the University permanently and does not have the opportunity to retake the module."

He then went on to answer the specific questions. The first question was:

"What are the course requirements referred to in your letter of 24 January?"

That was answered:

"The course requirements are that the student must not fail two practice base modules. Miss McKoy has done this on modules U41733 and U41750"

The second question was:

"Under what regulation of the university has the decision to withdraw our client purportedly been made?"

The answer was:

"This is specified in Undergraduate Regulations 14 (vii)."

I interpolate to say that that was an important answer as it is the construction of that particular regulation that formed the main part of the dispute between the university and Ms McKoy.

9. The third question asked who took the decision and the answer was:

"The University's Examination Committee took this decision on the recommendation of the Midwifery Subject Examination Committee. I wrote on behalf of the examiners."

And then the next question, question 4, was "What were the full reasons for the decision?" The answer was: "The full reasons for the decision are exactly as described above". The fifth question was: "Why is our client not being permitted to retake the three modules she has failed?" The answer was: "Her position with regard to the failed modules is, again, for the reasons described above". And the sixth question was: "Is there an internal procedure for appealing against the decision?" And the appeal procedure was explained in the sixth answer.

10. Regulation 14 (vii), which was referred to in the second answer, was Regulation 14 (vii) of the Undergraduate Modular Programme Regulations. It provided as follows:

"No practice based module or School Experience module may be taken more than twice and a student may take no more than two such modules twice. A student who is consequently unable to complete an award will be required to withdraw from the course."

11. It appears that the university had interpreted that regulation in the way it set out in its answers to the questions and had done so for the past 20 years. It had refused to allow students to retake practice modules and consistently required students with failed such modules to withdraw from the course.
12. Ms McKoy's solicitors, on receipt of that answer, wrote back pointing out to Dr Scurry that, as he had stated that she had failed only two practice based modules, she must be entitled to retake those examinations, on an ordinary reading of regulation 14 (vii). The solicitors requested the examination committee reconsider its decision as it had made an error in interpreting the regulations. The response of Dr Scurry was that, although the meaning of the words might not make it clear that a student who failed two practice-based modules might not continue with the course, the intention of the regulation had been clear and the committee had not made an error.
13. An appeal was brought from that decision and was eventually considered on 28 July 2006 by the appeals committee. It concluded that it would not require the examination committee to reconsider its decision. It set out the facts and set out its view of the regulation in the following terms. This is at page 559 B paragraph H. It stated:

"While the wording of the second part of the first sentence of regulation 14 (vii) was ambiguous:

(i) each examination committee has under regulation C1.3 wide discretion coming to its decisions and the power to interpret any regulation (ii) All the examination committees in the fields involving professional practice including the midwifery subject examination committee and the module examination committee has consistently interpreted regulation 14 (vii) to mean that a student who failed two practice-based modules would be required to withdraw from the course

(iii) Ms McKoy was fully aware that this was the case from the start of her course as it was clearly set out in that form of words in the course handbook she had been given upon enrolment."

14. The committee then went on to make clear the overriding duty of committees to the public to ensure that its decisions did not result in the possibility of danger to the public. It dismissed her appeal but recommended that the regulation be revised to remove any possible ambiguities. As I have said, that has since been done.
15. Ms McKoy was informed of the decision on 7 August 2006. Ms McKoy then made a complaint to the Office of the Independent Adjudicator for Higher Education in November 2006. That complaint took some time to consider and the office gave its decision dismissing her complaint on 14 August 2007.
16. Following that decision on 13 November 2007, she applied for judicial review of the decisions made by the university. She was granted the necessary extension of time and permission in February 2008. It was not, however, until 19 February 2009 that the claim was heard by McCombe J. He rejected the university's contention that because the university was entitled to make a judgment that she was not fit to practise as a midwife the university had had a wide discretion and the claim was not justiciable. He considered, after review of other provisions of the Undergraduate Modular Programme Regulations, the academic regulations and the course handbook that regulation 14 (vii) on its plain and ordinary meaning entitled a student to take a practice module twice. The university did not have any discretion and the rule merely provided an upper limit of taking the modules no more than twice. He rejected the university's further contention that it could rely on the interpretations set out in its handbook or on its own practice in interpreting the regulation.
17. As in his view, the university had misconstrued its regulation, the decision to require her to withdraw from the course was unlawful. The university contended that the evidence before the judge indicated the university was entitled to reach a judgment that she was not fit to be a midwife and the judge should not therefore grant relief. He rejected that contention on the basis that, on the proper construction of the regulations, fitness was to be determined by passing the modules and the ability to re-take which was set out in the regulations. Any residual question of fitness might be that of the NMC, which had a duty to keep its register under review. He declared the decision unlawful and quashed it.
18. The university sought permission to appeal from the judge. That was refused. It then sought permission from this court, Elias LJ refused permission. On the renewed oral application before Sedley LJ, Sedley LJ came to the view that the regulation did not provide a right to retake the module and the principles governing the right to retake the module had to be found elsewhere in the governing provisions which governed the university's general rules. However, as the examination committee and the appeal committee had based their decisions solely on their view of regulation 14 (vii), their decision was plainly wrong on their construction and should be set aside. However, as the university contended it was entitled when it reconsidered its decision to refuse to allow Ms McKoy to take the modules again, the university should be permitted to appeal on the same issue as to the construction of regulation 14 (vii) and any other part of the university's regulations which might permit the exercise of that discretion.
19. In the argument that has been attractively advanced before us by Mr Hyams today, he has put again the university's argument that regulation 14 (vii) only sets an upper limit and that, looking at the university's regulations as a whole, the examination committee had a discretion as to whether it would permit a student to take a module a second time. In the course of his argument he rightly submitted that regulation 14 (vii) had to be read in the context of the Articles of Government of the University and the other regulations passed and enacted by the university.
20. It was convenient to begin, and it is convenient for me to begin, with the Articles of Government of the university which by Article 3.14 provided that the academic board was to be responsible for the assessment and examination of students and procedures for exclusion subject to the requirements of validating and accrediting bodies. Before turning to the requirements of the relevant validating and accrediting bodies, it is convenient to refer to Article 2 of these articles which provided a general power for the university to make rules and byelaws governing the admission and performance of students.
21. The relevant validating and accrediting body for the purpose of this course was, as I have already stated, the NMC. That had, under Article 15 of the Nursing and Midwifery Order 2007, powers to establish standards of education and training necessary to achieve a standard of proficiency for entry to the profession. It had power to ensure universities knew those standards and to ensure those standards were met. The council also had power to approve courses which could be taken and to enable those who completed it successfully to be recognised as having achieved the necessary standards of proficiency for admission to the register. In a case, therefore, of the course approved by the NMC at Oxford Brookes University, if a student therefore passed the student would be regarded as having achieved the necessary standard of proficiency for entry into the university.
22. The general academic standards were set out in the academic regulations made by the university. These are important and were relied on by Mr Hyams in the course of his argument. Of particular importance was regulation C1.1, entitled "Fulfilment of programme objectives". This provided:

"The purpose of assessment is to enable students to demonstrate they have fulfilled the objectives of the programme of study and achieved the standard required for the award they seek. The university requires all programmes of study to be subject to course regulations which relate the assessment requirements on the programme to its objectives and it is within these course assessment regulations that examiners make their judgements on student performance."

Also of importance was regulation C1.3 entitled "Examiner's judgment." Paragraph 2 of that regulation provided:

"Within the constraints imposed by the requirements of C1.1 above, examiners have wide discretion in reaching a decision on the awards to be recommended for individual candidates. They are responsible for interpreting the assessment regulations for the programme if any difficulties arise, in the light of the University's requirements and good practice in higher education, and their academic judgments cannot, in themselves, be questioned or overturned."

23. Mr Hyams relies particularly on those two provisions to stress that, when the powers of regulation 14(vii) are considered and the general powers of the university, it is important, first of all, that the university is granted a very general power over student performance and that the university is also granted a clear power of academic judgment which cannot be questioned.
24. It is then argued by Mr Hyams that, if one turns to read Article 14 (vii) in the context, first of all, of the fact the university could be regarded as the gatekeeper to the profession of midwifery and its very important duties to the public and, secondly, the context of the particular parts of the academic regulations to which I have referred, then the meaning of regulation 14(vii) was clear. Read in the context of the other regulations, it provided a discretion to the university to refuse to allow a student to take a further resit.
25. It is in my view important when looking at regulation 14 (vii) of course to have in mind the very important power entrusted to the university by the Nursing and Midwifery Council, but I have little doubt, as I have stated, that the examiners were very conscious of their public responsibilities. However, the powers that the examiners had are ones that must be exercised in accordance with the regulations. Thus it seems to me that, on the proper construction of the academic regulation C1.1 and C1.3, the examiner's judgment is, on the express terms of the rule, to be exercised in accordance with the regulations made. It seems to me clear that the way in which the scheme of the university's governing regulations have been devised is to constrain the discretion permitted to the examination committee by reference to what is provided in the regulations and, in this case, in particular to the university's modular regulations.
26. It is necessary therefore to refer in a little more detail to the modular regulations and, in particular, to the context in which regulation 14 (vii) is to be found. It is unfortunately, I think, necessary to refer to a number of the subparagraphs of regulation 14. It provides as follows:

"i. The Examinations Committee may require a student to withdraw who does not pass at least three module credits in any two successive semesters of study.

That particular subparagraph makes it clear that a discretion is vested in the Examinations Committee in the circumstances there set out. It is not necessary to refer to the second subparagraph, but it is important to refer to the third, fourth and fifth subparagraphs. These provided as follows:

"iii. A student may be required to withdraw from a module, which has requisite modules if she/he did not achieve at least 30% on the assessment of each requisite.

iv. A student may be required to withdraw from an advanced module, which has requisite modules if she/he did not pass these modules.

v. A student who has failed to satisfy a specific field requirement which is normally taken during the particular semester or stage of the course, may be required by the Examinations Committee to satisfy that requirement before proceeding in this field."

27. It is clear in my view from each of those three paragraphs, which are expressed in the terms "a student may be required", that it is someone in the university who can require a student to do something. Subparagraph (v) makes it clear that the particular person who may exercise that discretion is the examination committee. Although a specific body is not referred to in subparagraphs (iii) and (iv), it is clear that the discretion to require the student to withdraw is one that is vested in the university.
28. Against that background it is important to look at paragraphs (vi) and (vii) together. Subparagraph (vi) provides:

"A student who has not satisfactorily completed, after taking 3 times, a module which is a specific field requirement may be required to withdraw from the course."

29. Two points clearly emerge from that regulation. First, that the discretion to require the student to withdraw from the course is a discretion vested in the university. More importantly, the modules referred in that subparagraph are modules which are specific field requirements. "Specific field requirements" are defined to include passing any compulsory modules and completing satisfactorily any field trips or placement work or work experience or other specialist activity. It is clear and common ground that therefore the two modules which Ms McKoy failed are specific field requirements.
30. It follows, it seems to me, on a clear reading of paragraph (vi) that on its face it provides an entitlement to take the module three times. If the module is not satisfactorily completed, then the university has the discretion to require the student to withdraw from the course. If the particular regulation in dispute, 14 (vii), is read against that background, two things become clear. First, that (vii) is designed to qualify the broad position set out in paragraph (vi) in two respects. First, it limits the number of times that the module can be taken to twice and not three times and, secondly, it removes from the university the discretion to require the student to withdraw from the course. It makes it clear that a student who is unable to pass these modules must withdraw from the course. And thirdly, it is clear that (vii) does not vest any discretion in the university because it seems to me a striking part of the way in which this regulation has been drafted is that, where the discretion is vested in the university, the rule is clear. In the case of (vii) the discretion is not vested in the university.
31. Therefore, looking at (vii) in the context of the regulation as a whole and taking account of each of those three points, it seems to me clear beyond argument that this regulation entitled a student to take a practice-based module once more. That is to say, the students could retake if the student had failed. It was not a matter of the university's discretion it was an entitlement. It seems to me, therefore, to follow that what the university has done in this regulation is to cut down, in the way contemplated by paragraph C1.1 and C1.3 of the academic regulations, the discretion that it would otherwise have. It would also follow that, as the NMC would have been expected to review the university's regulations on their ordinary reading and to have taken into account those regulations when approving a course, that the NMC was satisfied that a student was entitled to take the practice-based modules up to two times and that there was no discretion vested in the university to prevent that happening.
32. It therefore seems to me that the learned judge was right in the view he arrived at. It also follows, as has been accepted before us, that the decision originally made was wrong, but it must follow that when the university comes to retake the decision it must take that decision on the construction of paragraph 14 (vii), which I have set out, and it has no discretion under these regulations to refuse to allow Ms McKoy to take these modules again.
33. For those reasons therefore I consider that the appeal should be dismissed.

Lord Justice Hooper:

34. I agree.

Sir David Keene:

35. I also agree. It is right, of course, that matters of academic judgment generally are not ones where the courts would normally be prepared to interfere, but the power contended for by the appellant to require a student to withdraw from a course because of inadequate progress, in circumstances not provided for in regulation 14, would be a very important power. After all, there is a contractual relationship between the student and the university, and the student will normally have paid or incurred a liability for a substantial sum in fees. One would therefore expect to see such a power expressly set out somewhere in the university's Articles or academic regulations. The nearest one gets to this is regulation C1.1 but that, as Thomas LJ said, indicates that judgments on a student's performance are to be made within the context of the assessment regulations. That takes one back to regulation 14, which expressly deals with a student's progress. There, as my Lord has said, one finds an apparently comprehensive set of circumstances where the university has the power to require a student to withdraw from a course or module. No power is expressly conferred on the university to require withdrawal after merely one failure in a practice-based module.
36. Given the structure of regulation 14, it is in my view not possible to imply such a power. I too, therefore, would dismiss this appeal.

Order: Appeal dismissed