ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON MR JUSTICE FOSKETT
Case No CO/2778/2009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE McFARLANE
| R (SHELLEY MAXWELL)
|- and -
|THE OFFICE OF THE INDEPENDENT ADJUDICATOR FOR HIGHER EDUCATION
MR SAM GRODZINSKI QC (instructed by EJ Winter & Son) for the Respondent
Hearing date: 26th July 2011
Crown Copyright ©
Lord Justice Mummery:
Judgment of Foskett J
"82. At all events, I am not satisfied that there is any general obligation to express an opinion on the strengths of a discrimination case in the Final Decision of an OIA ruling (although it is possible to do so in the general discretion of the OIA) and I am not satisfied that it was irrational not to do so in this case."
"70. In the overall context of dispute resolution, it is, in my judgment, difficult to see how a "finding" can be other than one that is arrived at by any process other than the kind of court or tribunal process to which I have referred.
71. To that extent, I would understand and accept the OIA's general position that it is not for it to make "findings" in the accepted legal sense about a disability discrimination; that is a matter for the County Court given the jurisdiction conferred on that court by the DDA.
78. Overall, it seems to me that a party (whether it is the HEI or the student) who wishes to obtain a "finding" in the truly accepted sense of the term, either of no discrimination or of discrimination, will have to go to the County Court to obtain it. Not unnaturally, no party will want this to happen unless it is absolutely necessary; it is time-consuming, costs-consuming, emotion-consuming and will result in the delayed resolution of something that ordinarily ought to be resolved quickly, efficiently and with the minimum of public exposure, whether for the individual concerned or the HEI itself. That, as I perceive it, is the essential raison d'etre of the OIA and why it has been invested with such a wide discretion in the way it seeks to achieve this kind of resolution…
79. Notwithstanding this wide discretion and the undesirability of making a formal "finding", is there anything to prevent the OIA from expressing a view about the strength or otherwise of a disability discrimination allegation as part of its review process? Subject to the considerations to which I will refer below, I can see no reason in principle why it should not do so. Whilst I cannot accept the submission of Mr Jones and Miss Sackman that it is illogical not to make a"finding" of disability discrimination, there is logic in the proposition that the formation of a view on the apparent strength of the student's discrimination case is of importance in determining whether the HEI's response to it has been fair and reasonable in all the circumstances. At the one end of the spectrum, the OIA could form the view that the claim for disability discrimination was so weak or flawed that the HEI's dismissive response to it was perfectly acceptable and reasonable in the circumstances. At the other end of the spectrum, the case may be apparently so strong that the HEI's response was plainly and entirely inadequate. Within that broad spectrum there may be many shades of opinion for the OIA legitimately to form. Provided that the OIA makes clear that any view it expresses is provisional and cannot be as authoritative as the decision of a court after hearing all the evidence, then in principle I cannot see any reason why such a view should not be expressed if it is thought appropriate. It could of course inform the nature and extent of any recommendation made.
80. That having been said, is there a necessity for expressing such a view in every case? Eve leaving out of account for this purpose the wide discretion conferred on the OIA by the statute and the rules that govern its procedures…I do not think it can be said that there is any such necessity. Matters of discrimination are sensitive both from the point of view of the person who believes that he or she has been the victim of discrimination and from the point of view of the institution concerned. No reputable institution will want to gain the reputation for not taking reasonable steps to accommodate the needs of the genuinely disabled. A process such as that afforded by the OIA provides the opportunity for a resolution of a complaint without the need to reach a concluded view on whether discrimination has taken place. It is quite possible to see that the OIA may simply prefer not to express any such view in many situations bearing in mind that its task is not to make any "finding" and to try and achieve an informal resolution. It will know that the County Court exists to do this if it is necessary in any particular case. However, and this seems to me to be the answer to the judicial review claim advanced in this case as indeed it may well be in many others if the point is taken, it must be a matter for the discretion of the OIA to decide in any case whether to express any such view or not. If the decision is taken not to express any view that does not mean that a view may not have been formed: as I have indicated, it would be difficult to see how the fairness of the HEI's response to a disabled student's complaint could be judges without forming some, albeit provisional, view on the strength or otherwise of the case advanced. However, whether to articulate the view expressly or not must almost invariably a matter for the judgment of the OIA reviewer. .."
Role of the OIA
(1) The OIA is amenable to judicial review for the correction of legal errors in its decision-making process.
(2) That process involves conducting, in accordance with a broad discretion, a fair and impartial review of a student's unresolved complaint about the acts or omissions of an HEI and to do so on the basis of the materials before it, also drawing on its own experience of higher education, all with a view to making recommendations.
(3) The function of the OIA is a public one of reviewing a "qualifying complaint" made against an HEI and of determining "the extent to which it was justified."
(4) For that purpose the OIA considers whether the relevant regulations have been properly applied by the HEI in question, whether it has followed its procedures and whether its decision was reasonable in all the circumstances.
(5) It is not the function of the OIA to determine the legal rights and obligations of the parties involved, or to conduct a full investigation into the underlying facts. Those are matters for judicial processes in the ordinary courts and tribunals. Access to their jurisdiction is not affected by the operations of the OIA.
(6) The review by the OIA does not have to follow any particular approach or to be in any particular form. The OIA has a broad discretion to be flexible in how it reviews the complaint and in deciding on the form, nature and extent of its investigation in the particular case.
(7) The courts will be slow to interfere with review decisions and recommendations of the OIA when they are adequately reasoned. They are not required to be elaborately reasoned, the intention being that its operations should be more informal, more expeditious and less costly than legal proceedings in ordinary courts and tribunals.
"Put shortly, the Appellant's case is very simple and very strong. The OIA states that it will investigate complaints relating to disability discrimination. The Appellant made a complaint of disability discrimination. In its decision the OIA purported to take into account the DDA [the 1995 Act], all relevant case law and DDA policy (although none was expressly mentioned or cited in the decision letter) but it maintained that it could express no finding about disability discrimination (and in the court the OIA maintained that it would express no view). It is simply irrational to purport to take something into account as the OIA has done but then maintain it has expressed no view or made no finding in respect thereof. In any event the OIA was obliged to give reasons as to how it had taken the DDA, case law etc on discrimination into account and what if any weight he had given to it. The judge below failed properly to grapple with this issue as illustrated by his ruling on costs (attached hereto) where he accepts that the OIA was wrong to assert that it has no power to express a view about disability discrimination, since the OIA remained steadfast in its position that it could express no view or make a finding, the judge thus should have upheld the claim. Furthermore in other decisions published by the OIA it has previously expressed views and findings on matters of disability discrimination."
"We received a complaint from a student alleging disability discrimination by a university. The student could have taken his complaint to the county court but chose to come to the OIA. The student demanded that the OIA should hold a hearing with an examination of witnesses, like a court. We explained that we were a review body and our prime role was to review how the university had dealt with the alleged discrimination. It would seldom be necessary for us to have a full hearing of the case. In fact, the complaint was upheld by us and compensation recommended."
Discussion and conclusions
Lord Justice Hooper:
Lord Justice McFarlane: