England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/07/2010

Mr Justice Foskett:

Introduction

1. In these proceedings the Claimant seeks to challenge the decision of the Defendant (the Office of the Independent Adjudicator, 'OIA') made on 23 December 2008 concerning a complaint that she made to the OIA against the Interested Party, Salford University ('the University').
2. Permission to apply for judicial review was granted by Hickinbottom J on 12 August 2009. The Interested Party has played no part in these proceedings.
3. The complaint the Claimant made to the OIA raised issues relating to the statutory duties of the Interested Party as a Higher Education Institution ('HEI') under the Disability Discrimination Act 1995 (as amended) ('the DDA').
4. In a nutshell, the Claimant asserts in these proceedings that the OIA's decision on her complaint failed to make a finding or express a view, as it was variously put, about whether she had been the victim of disability discrimination under the DDA and it was, accordingly, a flawed and illogical decision.
5. The OIA contests the suggestion that there is any need to make such a finding or express any such view.
6. The case thus raises issues about the practice of the OIA and the legal framework within which it operates. It is recognised that the decision could have wider implications than just the outcome for the Claimant.

The OIA

7. The OIA was established in 2003 and began running a voluntary scheme in 2004. It became the "designated operator" of the student complaints scheme with effect from 1 January 2005 following the implementation of the Higher Education Act 2004 ('the Act'). Section 13(1) provides for the "designated operator".
8. In the rules of the scheme, to which I will refer in more detail later, it is said that "[the] main purpose of the Scheme is the review of unresolved complaints by students about acts and omissions of HEIs and the making of recommendations."
9. The statutory framework within which the OIA operates is fully and clearly set out in paragraphs 4-13 of the judgment of Pill LJ in R (Siborurema) v OIA [2008] ELR 209, [2007] EWCA Civ 1365, and I do not need to repeat it here. Pill LJ's analysis concludes with reference to the rules under which the OIA operates. They have been modified from time to time since the early days, though not, I am told, to any significant extent or in any material way. In view of the submissions I have received it is important to see what those rules say. They refer to a "Reviewer" which means the Independent Adjudicator or the Deputy Adjudicator "or such other person to whom the review of a complaint has been delegated". The rules extant at the material time were, so far as relevant, in the following terms:

6.1 The Reviewer will carry out a review of the complaint to decide whether it is justified in whole or in part.

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 normal method of dealing with a complaint will be as follows:

6.3.1 once a complaint has been accepted the Reviewer will send a copy to the relevant HEI for its comments and the Reviewer may also require the HEI to respond to specific questions and requests for information;

6.3.2 the response of the HEI to the complaint will then be sent to the complainant to allow the complainant to comment on it;

6.3.3 if the Reviewer considers it necessary further investigation or enquiries will be made;

6.3.4 prior to issuing a Formal Decision the Reviewer will (unless the Reviewer considers it unnecessary to do so) issue a draft decision (and any draft recommendations) in order to give the parties the opportunity to make representations as to any material errors of fact they consider have been made.

6.4 The parties shall comply promptly with any reasonable and lawful request for information the Reviewer may make relating to the review.

6.5 The Reviewer shall not be bound by legal rules of evidence nor by previous decisions of the OIA.

6.6 Notwithstanding the above the Reviewer may at any time seek to achieve a mutually acceptable settlement of a complaint (including, with the consent of the parties, through the appointment of a mediator) whenever he or she considers it appropriate.

6.7 The Reviewer may terminate or suspend consideration of a complaint, and/or make a Formal Decision based on information currently available, as he or she considers appropriate, if it appears to the Reviewer that,

6.7.1 the HEI has satisfactorily dealt with the complaint;

6.7.2 the complaint would be better considered in another forum;

6.7.3 there are proceedings taking place within the HEI or elsewhere which may be relevant to the complaint; or

6.7.4 a party has unreasonably delayed or has otherwise acted unreasonably.

7.1 The Reviewer will issue a Formal Decision, and any Recommendations the Reviewer decides to make, to the complainant and the HEI as soon as is reasonably practicable.

7.2 The Formal Decision and any Recommendations shall be in writing and contain reasons for the Formal Decision and for any Recommendations.

7.3 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.

7.4 The Reviewer may, where the complaint is justified in whole or in part, make Recommendation(s) that the HEI should do something or refrain from doing something. Those Recommendation(s) may include, but not be limited to, the following:

7.4.1 that the complaint should be referred back to the HEI for a fresh determination because its internal procedures have not been properly followed in a material way;

7.4.2 that the complaint would be better considered in another forum;

7.4.3 that compensation should be paid to the complainant, including, at the Reviewer's discretion, an amount for inconvenience and distress;

7.4.4 that the HEI should take a course of action that the Reviewer considers to be fair in the circumstances;

7.4.5 that the HEI should change the way it handles complaints;

7.4.6 that the HEI should change its internal procedures or regulations.

7.5 The OIA expects the HEI to comply with the Formal Decision and any accompanying Recommendations in full, and in a prompt manner.

7.6 Where Recommendations require the HEI to take a particular course of action it should do so within the time scale stipulated or, where no time scale is indicated, as soon as is reasonably practicable. The HEI shall, if requested, report to the Reviewer on such compliance.

7.7 Any non-compliance by an HEI with a Recommendation will be reported to the Board and publicised in the Annual Report.

10. The essential decision that the OIA is required to make is "the extent to which a qualifying complaint is justified" (Schedule 2, paragraph 5(1)(a) of the Act) and in deciding whether a complaint is justified the OIA "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" (see rule 7.3 above).
11. The specific issue in Siborurema was whether the OIA was correct in coming to the conclusion that the complaint made by the student in that case was not justified and whether the nature of the review of the student's complaint by the OIA was a "full merits review" (an enquiry de novo) or whether it was, or could be, of a more limited nature. One of the arguments raised by the OIA was that its decisions were not amenable to judicial review. That argument was rejected by the Court of Appeal. The observations of the court represent an authoritative backdrop to the issue that arises in this case and I should record some of those observations.

Judicial review

12. In relation to the amenability or otherwise of the OIA to judicial review, Pill LJ, who gave the leading judgment said this:

"49 I have no difficulty in concluding that OIA is amenable to judicial review:

(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.

50 The designated operator should, in my view, be subject to the supervision of the High Court. The wish of OIA, which I readily accept to be genuine and well-intentioned, to be free from supervision should not be upheld. Its aspiration to be an informal substitute for court proceedings is not inconsistent with the presence of supervision by way of judicial review. OIA's decisions, will, it is to be hoped and expected, be based on fairness and a consideration of higher education practices … but I do not see that impeded by the existence of a limited remedy in the courts if OIA has exceeded its powers or acted in a manner inconsistent with the Statute under which it operates. However well-intentioned, an important scheme available to resolve a wide range of disputes affecting HEI's and the large number of students who attend them should not be free from that supervision. For it to become a law unto itself would not achieve the statutory intention.

51 The nature and extent of that review must, however, be based on the nature of the Scheme, the duty involved and the powers exercised. Schedule 2 of the Act does not require that the duty to review complaints be exercised in any particular way. The duty is to make a decision as to the extent to which a complaint is justified. The degree and manner of supervision to be exercised by the court will vary from institution to institution and from statutory scheme to statutory scheme (R v Parliamentary Commissioner for Administration Ex Parte Dyer [1994] 1 WLR 621, at 626).

…

55 It is neither necessary, nor appropriate for present purposes, to say more by way of generality. The Statute leaves OIA with a broad discretion. Decisions may, however, be challenged where, for example, there have been breaches of the rules of natural justice, by way of bias or relevant procedural injustice, or where there has been such scant or inappropriate consideration of a complaint that what had occurred could not fairly be described as a review.

56 In its decision on complaints, OIA is expected to follow rational and fair procedures and to give adequate reasons for its decisions and recommendations. Thus the procedures followed and the decision letters which emerged can properly be scrutinised with that object in mind."

13. Moore-Bick LJ agreed with the foregoing approach (and with the approach of Richards LJ), as did Richards LJ, but Richards LJ added the following observations on the question of the amenability or otherwise of the OIA to judicial review:

"73 That decisions under the Scheme are amenable to judicial review is plain from the statutory context within which the Scheme has been established and the nature of the function being performed by the OIA in reviewing qualifying complaints against HEIs. The concession that judicial review would lie in a case of bias or other procedural unfairness was inevitable; but there is no principled basis for drawing a line at procedural unfairness and not accepting the availability of judicial review to correct other legal errors in the decision-making process.

74 The OIA's concern that the availability of judicial review will impair the efficient operation of the Scheme by introducing undue formality and legalism is misplaced. The number of cases in which an application for judicial review could get past the permission stage is likely to be very small. There is a broad discretion under the Scheme as to how the review of a complaint will be carried out (see below). The decision whether a complaint is justified involves an exercise of judgment with which the court will be very slow to interfere. A complainant dissatisfied with the OIA's decision will often have the option of pursuing a civil claim against the HEI, which may well be an appropriate alternative remedy justifying in itself the refusal of permission to apply for judicial review of the OIA's decision. In the present case, permission was granted only because certain issues of general principle were raised. In the ordinary course a case of this kind could be expected to have little chance of getting through the permission filter.

75 The core requirement under paragraph 6.1 of the Scheme to "carry out a review of the complaint to decide whether it is justified in whole or in part" does not prescribe the form that such a review is to take. Nor does paragraph 7.3 of the Scheme, which is in permissive terms. A review of the kind contemplated by paragraph 7.3, under which the reviewer considers "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", is entirely consistent with paragraph 6.1 and with the purpose of the Scheme. But so too is a more intensive form of review, involving an enquiry de novo and a fresh decision on the merits. Which of those approaches to take, or whether to take some middle or different course, is a matter of discretion. In this, as in other matters, little assistance is to be derived from reference to the former jurisdiction of the university visitor, which the statute abolished. The Scheme represents a new approach to the review of qualifying complaints and is not intended to replicate the old system."

14. The amenability of the OIA to judicial review was thus confirmed, although it is plain that the Court of Appeal considered that opportunities for challenge would be limited: see per Richards LJ at [74] and per Moore-Bick LJ at [70] where he said this:

"However, it does not follow that the procedures and decisions of the OIA are to be treated as if it were a judicial body or that every complaint must be investigated in the same way. The nature and seriousness of complaints referred to the OIA is likely to vary widely and is therefore likely to call for a variety of different approaches. I am unable to accept, therefore, the submission that in every case the OIA is bound to examine the underlying merits of the dispute and cannot properly limit itself to a review of the decision which has given rise to the complaint. It is for the OIA in each case to decide the nature and extent of the investigation required having regard to the nature of the particular complaint and on any application for judicial review the court should recognise the expertise of the OIA and is likely to be slow to accept that its choice of procedure was improper. Similarly, I should not expect the court to be easily persuaded that its decision and any consequent recommendation was unsustainable in law."

The nature of the OIA

15. The observations of the court on the likelihood of a judicial review application succeeding were largely driven by the broad discretion reposed in the OIA about how it should approach a complaint and also by the nature of the OIA itself.
16. Moore-Bick LJ, in particular, focused on the role that the OIA is designed to play in the system of resolving student complaints:

" … I think it is clear that the purpose of the Act was to create a system under which students at higher education institutions could take complaints quickly and with a minimum of expense to a central body for consideration by people with experience of the world of higher education in order to obtain a speedy decision on the merits of their grievances and, where necessary, an appropriate solution without the need to resort to formal proceedings, whether within the institutions themselves or through the courts. The Act therefore contemplates that the designated operator, currently the OIA, will be performing a public function, albeit not one that involves the determination of the legal rights and obligations of the parties involved in the complaint. As such it cannot be equated to a body established by one or more institutions to act as an arbitrator, mediator or conciliator in a purely private capacity. Moreover, I do not think that there can be any doubt that Parliament intended the designated operator to undertake a fair and impartial investigation into the complaint in each case and to reach a conclusion based on the materials before it, while drawing on its own experience of higher education …."

17. Having described the OIA in that way, and expressing agreement with the view that the decisions of the OIA are amenable to judicial review, he expressed the views I have recorded in paragraph 14 above.
18. It is, perhaps, worth noting that the evidence on behalf of the OIA in that case was given in a witness statement dated 23 April 2007 by Baroness Ruth Deech, the first holder of the office of Independent Adjudicator for Higher Education. That statement was put before me in these proceedings on behalf of the Claimant. The following paragraphs indicate the way in which the OIA viewed itself at that time:

"8. We who act on behalf of the OIA regard the Scheme as a true alternative system to the courts. This is because students may make complaints to the OIA under the Scheme about any act or omission of an HEI, except any act or omission relating to the exercise of academic judgement (which is specifically excluded from the Scheme by section 12(2) of the HEA 2004). 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.

9. Furthermore, the solutions which we offer are tailored to the needs of complainants and the industry. For example, we may suggest an apology or an explanation, or we may recommend that an HEI changes the way it does something. These are remedies that the courts may not be able to offer. Examples of recommendations that reviewers acting on behalf of the OIA have made include these:

(1) that an HEI should review student accommodation licences for unfair terms;

(2) that an HEI panel should re-consider an academic appeal as a result of following unfair procedures and should pay compensation for stress and inconvenience caused;

(3) that an HEI's reasonable adjustments in respect of a student with dyslexia were inadequate, and that the student should be allowed to re-take an examination; and

(4) that an HEI should apologise to a student for the HEI's delay in dealing with a complaint.

10. We explain to students that there is no need for them to engage the services of a lawyer, and that our own staff make every effort to help would-be complainants in telephone enquiries (of which we would receive around 1000 per year) or in the handling of the complaints which they make under the Scheme. Many of those enquiries might otherwise be directed to the HEIs. In this regard we share some of the characteristics of a conciliation or alternative dispute resolution service. We believe that this is what Parliament had in mind when permitting (by section 19 of the HEA 2004) complainants an additional two months to take a discrimination case to the courts, following a referral to the Scheme.

11. In our experience, the mere possibility of judicial review causes delay and expense. The 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. Sometimes all that is necessary for a student who has a belief that an HEI has in some way acted wrongly is to have that belief vindicated. On some occasions, such vindication could not be achieved if the reviewers of complaints under the Scheme were bound to apply only legal principles. On other occasions, the Scheme as it stands and as it is operated by the OIA provides such a sense of vindication at no costs to the complainant and at minimal cost to the HEI, so avoiding the need for the student to spend much money in challenging the HEI in legal proceedings."

19. I have set out the observations of the Court of Appeal in Siborurema at some length because they indicate plainly the parameters within which any challenge to a decision of the OIA needs to be viewed. I will return to the relevant features of those observations after I have indicated in a little more detail the nature of the challenge advanced by the Claimant in this case.
20. I would simply observe that there may be a subtle changed emphasis in the attitude of the OIA to its function to be perceived by comparing what Baroness Deech said in the first sentence of paragraph 8 of her witness statement (see paragraph 18 above) with what her successor, Mr Behrens, says in his more recent witness statement. He said this:

"The OIA does not consider itself to be a free alternative to the courts, nor is it appropriate for us to be so. We are an alternative dispute resolution (ADR) scheme offering an informal, independent and (generally) speedy route for students to air their complaints …."

21. This is arguably slightly different from the suggestion, noted in paragraph 50 of Siborurema (see paragraph 12 above), that the aspiration of the OIA was to become an "informal substitute for court proceedings".

The Claimant's case

22. The Claimant has for a number of years suffered from a sleep disorder which is acknowledged to be a disability within the DDA. There are a number of symptoms which include a general tendency to fall asleep during the afternoons. She is also dyslexic which again is accepted as constituting a disability within the Act. That disability did not, as I understand it, become diagnosed until after the commencement of the University course for which she applied and the relevant disability for the purposes of this case at the inception of the course, at any rate, is the sleep disorder with which she was diagnosed in 1999. There appears to be a dispute about the relevance of the dyslexia, but if it is relevant it became so subsequent to the initial problems.
23. In a broad sense, the obligation of an institution such as the University is to make reasonable adjustments to the services it provides to a disabled student to obviate any "substantial disadvantage" that such a student might otherwise experience: section 28T, DDA.
24. In September 2004 the Claimant enrolled on a three year first degree course in Contemporary Military and International History at Salford University having declared her sleep disorder on her UCAS form. An assessment of her needs in the light of her disability was prepared by the Access Skills Group, an organisation that provided disability support to the University, support ultimately funded by the Claimant's local education authority. The assessment was carried out principally in response to the Claimant's application for a Disabled Students Allowance. As will become apparent, there were delays in the receipt by the University of the report on the assessment. It made a number of recommendations for providing support to the Claimant, but problems arose in the implementation of those recommendations with the result that she was unable to sit certain examinations in January 2005 that she would otherwise have been expected to sit. She continued to struggle through Semester 2.
25. It is her medical case that she developed Irritable Bowel Syndrome as a result of the stress caused by the failure of the University to make suitable arrangements to accommodate her sleep disorder.
26. In consequence of the difficulties she experienced, on 30 March 2005 the Claimant lodged a complaint through the University's internal complaints procedure (a process that must be followed before any complaint can be pursued through the OIA).
27. The Academic Registrar, Dr Kathleen Whyte, looked into the complaint, which was amplified in later documentation. Dr Whyte identified four principal matters about which the Claimant complained. Putting these in my words rather than hers, they were as follows:

(i) The appropriateness and speed of implementation of the adjustments necessary to meet the Claimant's disability in the light of the information available.

(ii) The quality of services provided by certain individuals within the University.

(iii) The accuracy of some information provided by the Equality and Diversity Office in relation Stage 2 of the Claimant's complaint.

(iv) Communication between and integration of the efforts of various parts of the University and the Access report on the Claimant's needs.

28. In her letter to the Claimant dated 16 September 2005 (a letter, incidentally, headed "without prejudice"), Dr Whyte accepted that a number of matters had not been handled satisfactorily. As to (i), she considered that the nine week delay in transmission of the report to the University was excessive and that, as a result, the Claimant had not received the service she should have received. That put her at a disadvantage so far as the exams in January 2005 were concerned. Dr Whyte also formed the view that more could have been done in the early stages to put in place arrangements based on the preliminary information that the Claimant had supplied about her difficulties rather than waiting for the assessment of need. Dr Whyte also accepted that some areas of communication could have been improved upon. Her overall conclusion was summarised thus:

"On balance I feel that the university is responsible for some of the things that went wrong for you in the session 2004/05. We were aware of your needs from August 2004 and, although we would not have known that an assessment of need had been carried out until we received the report, we could have done more to put measures in place from an early stage. The delay in implementing arrangements affected in part your ability to gain access to lecture material. You had some access to this material at this time through attendance at lectures, recordings of lectures and notes from the web. Later you had access to notes taken by note takers and eventually to some transcribed material. I accept that you did not have the appropriate level of access to the lecture material. The delay in the assessment of need did not affect your access to other course material such as books and journals, although it may have had an impact on your ability to make notes from these sources. I accept too that your attempts to find the solution that suited you best in dealing with the lecture material may have affected the effort that you could devote to other forms of learning. I understand that you did not submit any material for assessment or sit any exams. It is impossible to know what results you would have obtained if you had done so, or to gauge the impact of a paucity of lecture notes on any result that you might have obtained."

29. Against the background of that opinion, Dr Whyte expressed the view that it would be reasonable for the University to meet the whole of the tuition fees for 2005/06 (effectively the year that the Claimant would have to repeat) and she offered that to the Claimant on behalf of the university "as a gesture of good will and without prejudice". She apologised for the University's failings.
30. The thinking behind the offer was presumably to allow the Claimant to restart the course in October 2005. However, she did not feel able to resume the course then - perhaps not surprisingly if it had taken until September for the internal process to run its course to the stage it had achieved. She did not consider that the remedy Dr Whyte offered was acceptable and pursued the claim under a further stage of the University's complaints procedure. That too did not result in what she regarded as a satisfactory outcome.
31. On 24 February 2006, by which time the Claimant had consulted solicitors, she submitted a Scheme Application Form to the OIA. It ran to some 25 pages or more setting out the facts relating to her disability and to the attempts that had been made by the University to address them. She set out the effects, financial and otherwise, that she asserted had been caused by the University's failure to address her needs properly. Although the document approached the future on the basis that she would recommence her studies in 2006, it contained the following sentence: "Due to the university's mistakes my hopes of gaining a degree have been demolished." It then contained some 10 pages or so of legal submissions (doubtless formulated by her legal advisers) and ended by asserting that the University had discriminated against her and had not acted "fairly or reasonably". She complained about the remedy offered by the University. In the final decision of the OIA (see paragraph 74 below), her complaint was summarised in this way:

"… She says that the University had accepted that it was responsible for some of the things which went wrong during 2004/5. However, she also notes that she does not think that it is acceptable that it has agreed to only meet the tuition fees for repeating level 1. She says that she had now developed Irritable Bowel Syndrome due to the University's failure to meet her needs and could not return to the University at present. She will therefore have lost 2 years of her University career. She had now lost the opportunity of certain State benefits which she was relying on to help fund her through University. She had also taken a Student Loan of £4,000 and received a grant of £2500 due to the fact that she was a student with dependent children, which would no longer be available to her. In addition she would now be liable for fees of £3000 p.a. ....

... In conclusion, Ms Maxwell states that the remedy offered by the University is totally unacceptable".

32. At about the same time the Claimant also issued a claim against the University in Oldham County Court seeking a declaration and damages for disability discrimination, breach of contract and negligence causing personal injury (namely, Irritable Bowel Syndrome). The University filed a lengthy defence dated 6 March 2006 denying all the allegations of disability discrimination and breach of duty.
33. One of the rules of the OIA scheme is in these terms: "The Scheme does not cover a complaint to the extent that the matter is or becomes the subject of court or tribunal proceedings which have not been stayed ...."
34. This was drawn to the attention of the Claimant's solicitors by the OIA in a letter dated 11 April 2006. The letter indicated that the file would be closed until the court proceedings had been concluded and that if the Claimant wanted the OIA to "review the complaint in the usual way" after the proceedings were concluded the OIA would be prepared to do so and would "take account of any findings or order made by the court."
35. By an agreement between the Claimant's solicitors and the solicitors acting for the University reached on 18 May 2006, the County Court proceedings were stayed pursuant to a consent order made on 21 June 2006 to await the outcome of the complaint to the OIA. Shortly after this the OIA confirmed its willingness to consider the complaint.
36. There was thereafter protracted correspondence between the OIA, the Claimant's solicitors and the University about the nature and scope of the complaint that had been made to the University and to the OIA and about the University's response to the initial complaint. It is unnecessary for present purposes to set out the nature of the correspondence in detail. However, it is fair to say that a significant part of the correspondence focused on the Claimant's "medical case" as I have referred to it in paragraph 25 above.
37. Consistent with its normal practice (see rule 6.3.4 quoted in paragraph 9 above), on 3 October 2008 the OIA issued a draft decision for comment by the Claimant and the University.
38. Each party made representations about the contents of the draft report. One particular paragraph (which has formed the focus of a number of submissions on behalf of the Claimant) was paragraph 37 of the draft report. It was in these terms:

"The issue of whether Ms Maxwell was discriminated against or was treated less favourably by the University on the basis of her disability was not raised by her at any stage of the University's Complaints Procedure, and is not subject to the Completion of Procedures letter. Accordingly, this review has not considered the question of discrimination. It has however, taken into account the question of discrimination in considering whether the University followed its procedures correctly and whether its decision was reasonable".

39. In a letter dated 24 October 2008, the University pointed out that the Claimant had raised the question of disability discrimination "at least implicitly" during the University's procedures given that she had raised the implementation of support measures arising from her disability. The University invited the OIA to review the accuracy of paragraph 37. The Claimant's solicitors, in a letter of 2 December 2008, agreed with the University in relation to this paragraph and said that a "material factual error" had been made and invited the OIA to "include the issue of whether [the Claimant] was subjected to disability discrimination by the University within your review."
40. Before returning to record how the OIA dealt with these representations, it is worth noting the terms of paragraph 33 of the draft decision. It was as follows:

"In considering issues related to disability discrimination the OIA does not act as a court. It does not investigate in the same manner as a court, nor make findings which are based on the supposition as to what a court might have done in the same case. However, it is appropriate for the OIA to refer to the law and guidance on disability discrimination to form an opinion as to best practice and to decide whether the University has acted fairly."

41. It does not appear that either the University or the Claimant challenged this paragraph specifically at the time and neither appears to have suggested that the approach was erroneous.
42. At all events, the OIA did adjust the draft decision in the light of the representations received although, so far as I can judge, no significant alterations were made. No explanation for the error in paragraph 37 was given and the offending paragraph was simply excised from the final version, issued on 23 December 2008, although, as will appear, paragraph 33 was modified. Mr Robert Behrens, the current Independent Adjudicator and Chief Executive of the OIA who took over from Baroness Deech in May 2008 and who signed off the final decision, said this in his witness statement in these proceedings:

"Following the issue of the draft decision, both parties wrote to us, noting that discrimination had formed part of the Claimant's complaint to the University and to us, and should be included in the scope of our review. The complaint file was reviewed again at the Formal Decision stage in accordance with our usual practices, and we realised that paragraph 37 was inaccurate and self-contradictory. It was therefore deleted. Along with other amendments, a sentence was added to paragraph 33, "This Decision does not make findings about disability discrimination". Our substantive findings and recommendations were not changed. It is not uncommon for the OIA to make changes at the Formal Decision stage: that is the purpose of the further review, following the issuing of the draft."

43. The modified paragraph 33 was in these terms:

"In considering the issues related to disability discrimination the OIA does not act as a court. It does not investigate in the same manner as a court, nor make findings which are based on the supposition as to what a court might have done in the same case. However, it is appropriate for the OIA to refer to the law and guidance on disability discrimination to form an opinion as to good practice and to decide whether the University has acted fairly. This Decision does not make findings about disability discrimination."

44. I will return to what is said about that final version of paragraph 33 shortly, but it is right to observe that both the draft and final decisions dealt at some length with the substance of the Claimant's complaint about the University with a good deal of reference to the DDA and to disability discrimination and to her complaint concerning such discrimination. Both quoted extensively from Dr Whyte's letter (see paragraph 28 above).

The substance of the Claimant's case

45. The essence of the Claimant's case in these proceedings is that the OIA was wrong in the legal approach set out in paragraph 33 of its final decision. If and to the extent that that paragraph reflects the conclusion that the OIA lacks the power in law to make findings about disability discrimination under the DDA, it is, it is argued, wrong.
46. Mr Behrens in paragraph 10 of his witness statement said this:

"In reviewing complaints, we do not determine questions of law or civil liability. Our role is to decide whether a student's complaint is justified; it is not to determine whether an HEI has breached a statutory obligation. That would be a matter for the relevant court to decide. The decisions which we issue are reasoned, but do not amount to formal judgments and do not generally set out legal arguments and case law."

47. That is criticised on the basis that reflects the view of the OIA that it did not (and does not) have the power to make a finding on disability discrimination and is a misdirection in law. I emphasise the word "finding" because that is the word used substantially in the Claimant's challenge in these proceedings. However, the expression "making a finding" became softened during the hearing to "expressing a view", perhaps because of an intervention of mine. I will return to this (see paragraph 68 et seq below).
48. Before rehearsing the arguments, it is not inappropriate to ask the question of what difference the existence or otherwise of a "finding" would have made so far as the Claimant was concerned. The Claimant answers this by saying that she has been left "in the dark as to whether or not disability discrimination did or did not take place" and that she has been "left feeling very confused and frustrated by the whole process." She says that to have a definitive answer would mean that she could embark on future studies knowing she "should expect to receive a certain level of assistance from universities with regard to implementation of support packages". She added this:

"If the OIA made a finding based on disability discrimination this would have helped planning future academic study and when I start to seek employment. I would redeem my self-worth by having the university face up to their errors. It would make me feel that I deserve the opportunity to further my education and secure future prospects. Having a piece of paper which states disability discrimination took place would help enormously when I approach prospective employers in the future. It would help to explain the gaps in my educational record and in particular the length of time it took between the completion of my studies and my seeking employment."

49. Naturally, one can see that from her personal perspective her view as to what the University did (or, more accurately, allegedly failed to do) has not been vindicated and reflected in a clear conclusion by the OIA and that, as she says, she does not have a confirmatory "piece of paper" stating that disability discrimination took place. However, it will be necessary to decide this case on the wider basis of whether, given the law that governs the operation of the OIA, that kind of expectation is a legitimate one and one which either does or should shape the practice of the OIA.
50. In support of the Claimant's case, Mr Jones also submitted that the University needs to know if the OIA has made a finding of discrimination. I will return to that broad area later.
51. One submission made on the Claimant's behalf (though not mentioned in her witness statement) is the proposition that the finding of disability discrimination should inform the level of compensation awarded to her. It is contended that "in the absence of a finding on discrimination there is no (disclosed) rational basis for the OIA's recommendation on compensation."
52. The submissions on the legal framework need to be considered.

The submissions on the legal framework

53. As foreshadowed above (see paragraph 4), the Claimant's argument is that since the OIA recognised explicitly that the DDA was relevant to its review of her complaint (and expressly took it into account in reaching the conclusion that the University acted unfairly) it must, as a matter of logic, have asked itself and answered, the question of whether the University was in breach of the DDA. It is argued, on that premise, that there can be no lawful basis for what is said to be the refusal of the OIA to include in its reasoning its answer to that question. It is also submitted that it is meaningless for the OIA to take into account the DDA in arriving at its conclusion and simultaneously to suggest that it had not made a finding on whether or not the DDA has been breached. The core of the Claimant's complaint concerned the way the University dealt with the adjustments necessary to accommodate her disability. In those circumstances, the OIA could not, it is argued, reach a decision rationally without making a finding on the issue of discrimination.
54. I will return to deal with that submission below, but it is necessary to look at the statutory framework that relates to this particular issue.
55. Mr Jones and Miss Sackman contend that the proper construction of the 2004 Act shows that the OIA does have the power to make a finding in relation to disability discrimination (and indeed race and sex discrimination). They rely on section 19 which extends the limitation period for bringing a disability discrimination claim in the County Court by two months in circumstances where a complaint is referred to the OIA's student complaints scheme. Paragraph 13(1) of Schedule 3 of the Act provides that "[a] county court … shall not consider a claim under section 28V unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done." Section 19(3) of the Higher Education Act 2004 substitutes a new sub-paragraph (2) into paragraph 13 of Schedule 3 of the DDA and provides as follows:

"(2) If, in relation to proceedings or prospective proceedings under section 28V –

(a) the dispute concerned is referred for conciliation in pursuance of arrangements under section 31B before the end of the period of six months mentioned in sub-paragraph (1), or

(b) in England and Wales, in a case not falling within paragraph (a), the dispute concerned relates to the act or omission of a qualifying institution and is referred as a complaint under the student complaints scheme before the end of that period,

the period of six months allowed by sub-paragraph (1) shall be extended by two months."

56. The argument advanced is that this provision suggests that for the purposes of considering limitation periods for claims brought in the County Court under section 28V (which provides that proceedings relating to discrimination against disabled students in England and Wales shall be brought only in the County Court) a review of a complaint carried out by the OIA does not differ in its underlying purpose from a conciliation scheme under section 31B and, in other words, it is a form of alternative dispute resolution in which the same issues that would otherwise arise in legal proceedings could be resolved without recourse to such proceedings.
57. Attention is focused in this argument on the submission that the manner of resolution is through adjudication - as the name "Office of the Independent Adjudicator" suggests. It is argued that the manner in which the issue of discrimination should have been resolved by the OIA in the present case was in the form of a finding or determination. This is contrasted with a process that achieves a compromise of competing positions which may, for example, be reached as part of a conciliation process. The OIA system is said to be designed to avoid litigation in court and the statutory framework should not, therefore, be interpreted in a way that frustrates this purpose.
58. Mr Grodzinski, on the other hand, argues that there is nothing in section 19 that dictates that the OIA must approach its task as does the County Court. It merely recognises, he submits, that disability discrimination issues may be resolved by alternative dispute resolution procedures such as conciliation or through the OIA procedure itself.
59. I should say that, in my judgment, section 19(3) does not provide the answer to the issue raised in this case. It is merely a provision that extends the limitation period in relation to such a complaint, a provision doubtless enacted in the hope that it might assist in the resolution of issues of this kind. I do not think that the basis for having regard to Hansard does truly arise in the circumstances, but I have looked de bene esse at the Parliamentary interventions to which Mr Jones and Miss Sackman have drawn my attention, but I do not consider that they shed light on the central issue in this case.
60. Mr Jones and Miss Sackman also place reliance for the purposes of their argument on the general duty of the OIA (which is a "public authority" that performs a public function in reviewing the complaints of students) under section 49A of the Act to have due regard to the following objectives:

(a) the need to eliminate discrimination that is unlawful under this Act;

(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled persons and other persons;

(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

(e) the need to promote positive attitudes towards disabled persons; and

(f) the need to encourage participation by disabled persons in public life.

61. The contention is that making of a finding of unfairness is less likely to achieve the objective of eliminating discriminatory behaviour by HEIs and promoting equal opportunity between disabled and non-disabled persons than making a finding of disability discrimination and thus exposing it. It is argued that by declining to make a finding on discrimination the OIA may inadvertently be encouraging the continuation of discriminatory behaviour. The suggestion is that the OIA, when considering a complaint relating to disability discrimination, should (unless the case was obviously better suited to another forum) exercise its power to make a finding (one way or another) on disability discrimination.
62. That is the general submission. In relation to the Claimant's case, it is submitted that there is no evidence to suggest that the OIA took its duty under section 49A into account in reviewing the Claimant's complaint. Mr Grodzinski submits that if it is to be argued that there was a breach of this particular statutory duty by the OIA, that would be a new ground of challenge for which no permission has been sought or granted given that the Claimant's Grounds for Judicial Review made no mention of the "due regard" duty in s.49A. Nonetheless, his main argument in response is that the OIA engaged properly with the substance of the Claimant's complaints based on the extent to which the University had acted appropriately given her disability and made clear what steps the University should have taken. His submission is that there is nothing in section 49A that required the OIA to do more than that in the present case and, in any event, the suggestion that not making a finding of discrimination where justified could encourage the continuation of discriminatory practices is "no more than bald assertion".

The practical framework from the OIA's perspective

63. Leaving aside the legal framework for a moment, the OIA entertains concerns about resource implications if it is required as a matter of course to make findings about discrimination.
64. Mr Behrens says this in his witness statement:

" … The OIA's procedures are informal and the review is usually based on written representations by the parties. Students do not need to appoint legal representatives because of the informality of our procedures and the inquisitorial nature of our approach …

…

Our casehandlers have a thorough understanding of the law and guidance on disability discrimination which enables them to form an opinion on good practice and whether an HEI has acted reasonably. We provide training on induction on discrimination law in general, and disability discrimination in particular, and it forms part of our on-going training programme. Since our inception we have received training from SKILL: the National Bureau for Students with Disabilities; the Equality Challenge Unit; the National School of Government; a university disability officer; and several barristers specialising in disability law. Members of staff have attended external training events on the Disability Equality Duty, the Single Equality Scheme and the approach taken by other ombudsman-type organisations to discrimination complaints. We hold our own workshops, with internal and external speakers, on discrimination issues.

If the Court decided that we were obliged to make determinations of discrimination, that would require a substantial change to our approach:

1. The parties' representations would have to become more like legal pleadings and we would need to seek legal submissions on the issue. It would be difficult for students to make such submissions without the benefit of legal advice or representation.

2. We might have to hold hearings to take witness evidence and allow the cross examination of witnesses so that we could determine questions of fact. We have the power to hold oral hearings where we consider it is necessary to do so (rule 6.2). In practice, we have not found it necessary to hold an oral hearing because we have been able to determine whether or not the complaints we have reviewed so far are justified from our consideration of the evidence submitted in writing (or where appropriate by telephone) under our inquisitorial procedures. If we were required to hold an oral hearing in each of the complaints where issues of discrimination were raised that would have a significant impact on our resources – both in terms of staffing and physical premises.

3. Our approach would have to be considerably more legalistic and less informal. Our decisions would have to become more like legal judgments, citing the appropriate case law and arguments."

65. Plainly, irrespective of present practice, the requirements of the law will have to be met if it is incumbent on the OIA to make findings even if it causes resource problems.

The position taken on jurisdiction by the OIA

66. Before coming to discuss the implications of these arguments and considerations, it is, perhaps, worth recording how the OIA has articulated its position in relation to the making of a "finding" of disability discrimination in these proceedings. What Mr Grodzinski said in response to a question from me (see paragraph 67 below) was foreshadowed in his Skeleton Argument when responding to the suggestion that the OIA was taking contradictory positions. The Skeleton Argument said this:

"The decision under challenge did not assert that the OIA had no power to make a formal determination on whether there has been discrimination contrary to the DDA. The OIA's straightforward position was and remains that it is neither necessary nor appropriate for it to make such a determination."

67. When I asked him further about this, Mr Grodzinski said that in the strict and narrow jurisdictional sense there was no reason why a finding of discrimination could not be made and that there would be nothing unlawful about doing so. However, his position on behalf of the OIA is that it would not be proper to make findings of this nature given the overall purpose of the statutory provisions governing the OIA and disability discrimination. He accepted that if a "finding" was made, contrary to the way the OIA perceives its role to be, it would not be binding on the County Court if the parties decided that the OIA's decision had not resolved the issues between them.

Discussion

68. I am inclined to think that the argument in this case has become somewhat entrenched and indeed polarised by virtue of the use of the word "finding". Lawyers would ordinarily regard that word as constituting the considered conclusion of a court or of a tribunal on a matter of law or fact that is brought before it for consideration in the context of a contested dispute which that court or tribunal has jurisdiction to try. Where a dispute is resolved by or through some form of extra-judicial process (for example, through some form of ADR), a lawyer would not expect any "findings" as such to be made. Views may be expressed, positions may be taken, but no judicial findings as such are made.
69. If one leaves aside the jurisprudential issue of whether a "finding" can be made by any body or person other than the court or tribunal invested by law with the power and responsibility of resolving unresolved cases, the question of the intrinsic legitimacy of a "finding" by some other person or body arises. When a court or tribunal makes a finding, whether of law or fact, it usually does so (a) having had all appropriate evidence, oral and documentary, placed before it, (b) seeing and hearing that evidence being tested and (c) receiving arguments of law and submissions on the facts. Whether people agree with the findings ultimately made is of no real relevance: the fact is that there is an intrinsic legitimacy about the court's conclusion.
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.
72. Where, as I perceive it, an expectation could arise that the OIA can (or, perhaps, should) make a finding of disability discrimination if it is considered to have occurred is by the use of the word "adjudicator" in the title "Independent Adjudicator". This is an argument upon which the Claimant relies: see paragraph 57 above. The Oxford English Dictionary defines "to adjudicate" as "[to] sit in judgment and pronounce sentence; to act as a judge, or court of judgment." The title "adjudicator" is and has been well known in many UK legal contexts over the years including within the system of immigration control, prison discipline, construction litigation and in relation to Land Registry matters. There is an adjudicator responsible for looking into complaints about HM Revenue & Customs, including the Tax Credit Office, the Valuation Office Agency and The Insolvency Service. There is also the Telecommunications Adjudicator, the Health Professions Adjudicator and the Ofsted Complaints Adjudicator. There are Parking & Traffic Adjudicators and I understand that a Small Business Credit Adjudicator is planned.
73. For the avoidance of doubt, I make it plain that this case is solely about the OIA. I have not been shown (nor have I performed) any kind of comparative exercise to see how other "adjudicators" perform their duties. I suspect the duties are carried out differently depending on the context - in some cases the adjudicator will perform a task that involves making a binding decision in what is akin to a judicial procedure and in other cases the process is much less formal and does not result in a binding decision. Nonetheless, one can see that even for non-lawyers the incorporation of the word "adjudicator" in the title could lead to the expectation that some kind of "ruling" will be made.
74. There is no doubt that the OIA reaches a "decision" (a "Formal Decision"): see paragraph 7 of the Rules (set out in paragraph 9 above). In reaching its decision the OIA is "not be bound by legal rules of evidence nor by previous decisions of the OIA": paragraph 6.5 of the Rules. The essential decision made by the OIA is that set out in paragraph 10 above. The OIA may make "Recommendations": paragraph 7.4 of the Rules. The sanction against an HEI for failing to implement a recommendation is effectively adverse publicity: paragraph 7.7 of the Rules.
75. On the route to a "decision" the OIA may decide that "the complaint would be better considered in another forum" (paragraph 7.3.4 of the Rules) and its journey thus ended. Equally, if it considers at any time that a settlement ought to be achieved it "may at any time seek to achieve a mutually acceptable settlement of a complaint" which could be facilitated either through the direction intervention of the OIA itself (through the Reviewer responsible for reviewing the complaint) or "with the consent of the parties, through the appointment of a mediator" (paragraph 6.6 of the Rules).
76. For reasons I have already given (see paragraphs 68-71), I think it would be better to move away from the use of the word "finding" in this context. Whatever view or position might be taken by the OIA and, if appropriate, expressed in relation to the strength or otherwise of a complaint made to it (see paragraph 79 below), it cannot command the intrinsic legitimacy of a finding made by a court having heard all the evidence and considered all the relevant submissions, legal and otherwise. Whilst Mr Grodzinski may be correct to concede the strict and narrow position to which I have referred (see paragraph 79), a finding that has no intrinsic legitimacy and is not binding is a somewhat hollow vessel.
77. There is, I might add, another potential practical difficulty if it was incumbent on the OIA to make a "finding" on disability discrimination after a failed attempt by its Reviewer to broker a settlement (see paragraph 75 above). In order to facilitate a settlement without engaging the services of a mediator, it may well be necessary for the Reviewer to dig rather deeper into the positions taken by each party than, in the normal course of events, they might wish to go. (This would undoubtedly be the approach of a trained and experienced mediator.) This could represent an embarrassment to the Reviewer when thereafter being required to make a "finding". Judges and those with legal training will know how to put out of their minds matters revealed in this way, but for those who are not so trained this could represent a difficulty.
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 a 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 is why it has been invested with such a wide discretion in the way it seeks to achieve this kind of resolution: see, for example, the judgments of the Court of Appeal in Siborurema referred to in paragraphs 12-16 above, the observations of Mitting J in R (Shi) v Kings College London [2008] EWHC 857 (Admin) at paragraph 42, paragraph 66 of the judgment in R (Arratoon) v OIA [2008] EWHC 3125 (Admin).
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 a 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 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 apparently be 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 on a matter like this is inevitably 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? Even leaving out of account for this purpose the wide discretion conferred on the OIA by the statute and the rules that govern its procedures (see paragraph 78 above), 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 to 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 judged 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 be a matter for the judgment of the OIA reviewer. Whilst every discretion does have to be exercised in accordance with the policy and objectives of the enabling statutory provisions, I am unable to see that deciding not to say expressly anything about the strength of a claim constitutes a failure to act in accordance with the DDA, and in particular Section 49A (see paragraphs 60-62 above).
81. Although the way one paragraph of the Draft Decision in this case was drafted was plainly wrong and self-contradictory (see paragraphs 38-42 above), the gist of the OIA's position was consistent throughout, namely, that it did take into account the question of discrimination in considering whether the University followed its procedures correctly and whether its decision was reasonable (see paragraphs 38 and 43 above). The perceived strength of the complaint may, perhaps, be judged from the nature of the recommendation made, although the whole issue does appear to have become obscured to a degree by the arguments concerning the alleged cause or connection between the development of the Irritable Bowel Syndrome and the failure of the University to act reasonably in relation to the Claimant's disability. The additional compensation recommended related to the distress and inconvenience caused to her by these matters, rather than compensation for the alleged development of the condition to which I have referred.
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.

Conclusion

83. For those reasons, this claim must be dismissed although it has raised an important issue of practice and procedure in relation to the OIA.
84. Naturally, I am sorry that the Claimant should feel that she still does not know where she is in relation to her allegation of discrimination: for anyone who perceives him or herself to have been the victim of discrimination, that must obviously be frustrating. However, if that remains important to her then she can, if she wishes, pursue the matter in the County Court. I am neither encouraging nor discouraging her from doing so: it is a matter for her in the light of advice received. I would, however, observe that if the concern had principally been an inability to explain to potential employers a "gap" in her CV (see paragraphs 48 and 49 above), I cannot believe that some suitable wording of a letter could not have been devised, either with the assistance of the OIA or with the assistance of a mediator, that would have met that particular concern. Whilst I recognise the desire of an HEI that becomes involved in a matter of this nature not to add to the expenditure involved in resolving it, particularly if it feels that it has not been guilty of discrimination, the engagement of a suitable mediator at an early stage could result in an rapid and satisfactory resolution from the point of view of all parties before positions become entrenched. It is a process that ought not to be overlooked.
85. I should repeat the thanks I expressed at the conclusion of the hearing to all Counsel for their assistance.