ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR DAVID HOLGATE QC (Sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LADY JUSTICE BLACK
THE RIGHT HONOURABLE SIR DAVID KEENE
| THE QUEEN ON THE APPLICATION OF SANDHAR
|- and -
|OFFICE OF THE INDEPENDENT ADJUDICATOR FOR HIGHER EDUCATION & ANR
Mr Sam Grodzinski QC (instructed by E J Winter & Son LLP & Mills & Reeve LLP) for the Respondents
Hearing dates: 22nd November 2011
Crown Copyright ©
Lord Justice Longmore:
i) The remedies he sought requiring the University to award him a degree could not be given by the OIA, because they were matters of academic judgment;
ii) In response to his request for a full merits review, she explained that "The nature and extent of the review is for the case handler at the OIA to decide";
iii) In response to his request for an "emergency remedy" she explained "I have assessed your case as requiring the full, more extensive procedure so that I will need to obtain a full response from the University";
iv) In response to Mr Sandhar's request for an oral hearing, she explained that "I will assess the question of whether it is necessary to hold an oral hearing, in order to undertake a full and fair review of your complaint, once I have the University's representations".
The independence of the OIA
"would a fair minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased for lack of either impartiality or independence?"
"is capable of providing in an effective manner … a scheme for the review of qualifying complaints which meets all the conditions set out in schedule 2"
and (2) provided a scheme
"for the review of qualifying complaints that meets all the conditions set out in schedule 2."
The Secretary of State was satisfied that the OIA was capable of providing a scheme for the review of student complaints and accordingly designated OIA pursuant to section 13 of the Act. This then displaced, pursuant to section 20 of the Act, the disparate jurisdictions formerly exercised by Visitors to HEIs in relation to student complaints.
"(1) The governing body of every qualifying institution in England … must comply with any obligation imposed on it by a scheme for the review of qualifying complaints that is provided by the designated operator.
(3) The obligations referred to in sub-section (1) include any obligation to pay fees to the designated operator."
"be reviewed by an individual who
(a) is independent of the parties, and
(b) is suitable to review that complaint."
"4.1 A complainant must first have exhausted the internal complaints procedures of the HEI complained about before bringing a complaint to the OIA. In exceptional circumstances a reviewer may accept a complaint for review even if the internal complaints procedures of the HEI have not been exhausted if he or she considers it appropriate to do so.
6.1 Once a complaint has been accepted the Reviewer will carry out a review of the complaint to decide whether it is justified, partly justified, or not justified.
6.2 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.
6.3 The nature and extent of the review will be at the sole discretion of the reviewer and the review may or may not include matters that a court or tribunal would consider.
6.4 The normal review process for dealing with a complaint will be as follows:
6.4.1 The Reviewer will decide what further information (if any) he or she needs for his/her review; this may include a requirement that the HEI provides a copy of the information that it considered at the final stage of its internal complaints procedures (and any related records) and at any time the reviewer may require the parties to answer specific questions and/or provide additional information.
6.4.2 Prior to issuing a formal decision the Reviewer will (unless the Reviewer considers it unnecessary to do so) issue a draft or preliminary decision (and any draft/preliminary recommendations).
6.4.3 Where a draft decision is issued the parties will be given the opportunity to make limited representations as to any material errors of fact they consider have been made and whether the draft recommendations are practicable.
7.3 In deciding whether a complaint is justified the review 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.
8 The Independent Adjudicator is appointed by and responsible to the Board. In determining any complaints under these Rules the Independent Adjudicator shall act independently of the Board, HEIs and complainants. The Independent Adjudicator is not an officer of the Company for the purposes of the Companies Act.
10 The OIA and its property and affairs shall be under the control and direction of the Board. The Board … shall be responsible for …
10.2 Preserving the independence of the scheme and the role of the Independent Adjudicator … ."
Full Merits/Oral hearing
"It is unnecessary and unrealistic to describe the OIA as having a discretion to enter upon a "merits review" or a "full merits review" as though those phrases marked fixed thresholds in the OIA's investigative process. They do not. The OIA does its task properly if it continues its investigation until it is confident that it has all the material it needs in order to make a decision on the individual complaint, and then makes its decision. The exercise of a discretion in this context is simply the continuous consideration of whether any more information is needed in order to make a decision on the particular complaint."
Subject, therefore, to any question of an oral hearing, it is for the complainant to produce the evidence and arguments he wishes to the OIA and its case-handler to consider. Provided that such evidence and arguments are considered, there will have been a full merits review.
i) Whether the original Progress Committee had actually considered the nature of the appellant's mitigating circumstances when the minutes of its meeting gave no indication that it had. The minutes of that Committee simply stated:"The student submitted a supporting statement to the Committee but did not attend the meeting […] The Committee discussed the student's case in his absence and noted that he had submitted an appeal against his examination results, which was being investigated by the Chair of the Assessments Committee."
ii) Whether the claimant had not received any teaching in 2008/9.
iii) Whether the question of whether to award him his degree had been referred back to the original Examination Board after the success of his appeal pursuant to para b point 7 of Regulation XIX Academic Appeals of the University's Examination Regulations.
Lady Justice Black:
Sir David Keene: