Higher Education: appeals and complaints to the OIA

Higher Education: appeals and complaints to the OIA

 Office of the Independent Adjudicator (OIA) Law

The Office of the Independent Adjudicator (OIA) deals with higher education student complaints. Student complaints against Higher Education Institutions (HEI’s) can cover a whole range of things from accommodation to teaching standards.

A significant number of student complaints each year relate to their apparent failure to achieve expected results, while other complaints relate to student suspensions or removals from a course, as a result of alleged academic or general misconduct.

Each university or HEI has its own internal policies and procedures for dealing with complaints, misconduct allegations and academic appeals. There is no uniform system across the HEI’s and so there can be variations between different institutions. Generally there is an overarching final appeal process, which students may use. The student must be able to rely on specific grounds of appeal that can be considered within the student appeals process. Usually, such appeal grounds are based on complaints of procedural irregularity or maladministration, or the availability of new and relevant evidence – which had not been available at the time the academic institution took the decision against student. There can be additional appeal grounds, in certain circumstances; for example, that the severity of the penalty imposed was, in all of the circumstances, unreasonable and / disproportionate.

One principle that remains sacrosanct, in most circumstances, is the inability of a student to be able to appeal against academic judgment.  A student who misses as 2:1 grade by a few marks cannot challenge the marking just because he feels it must have been wrong. In contrast, however, a student who raised mitigating circumstances could seek to argue that such matters had not been taken into proper account.

A considerable number of students who go through their academic institution’s internal procedures remain dissatisfied with the outcome. Many students wish to take their concerns further.  In the absence of a specific legal claim that can be taken through the courts, such as disability discrimination, a complaint to the Office of the Independent Adjudicator for Higher Education may be the only possible organisation that can impose a suitable remedy – subject to the student’s complaint being one that has appropriate standing under the scheme.

The Office of the Independent Adjudicator (OIA) was established under Part 2 of the Higher Education Act 2004 and replaced the old system of University Visitors. There are still some HEI academic institutions that fall outside the scheme because they were set up by charter not statute and are not “qualifying institutions”. [ See the OIA website for a list of those academic institutions that are part of the adjudicatory scheme.]

The scheme is regulated by the OIA Rules 2013 and an Annual Report is published. The report includes information about: complaints referred under the Scheme; the Complaint Outcomes issued and Recommendations made by Reviewers; the extent to which Recommendations made by Reviewers have been followed (listing any HEIs which have not complied with a Recommendation).

There are certain complaints that the OIA will not deal with.[ See especially the Guidance Note: Eligibility and the Rules, March 2013, and the Rule 3 Scheme Rules 2013] The OIA Guidance Note gives a useful summary of the types of things that will or will not be treated as academic judgment.  The categories deemed to be within the jurisdiction of the OIA are: any final decision of a university, service provided by a university, teaching and facilities, accommodation, research supervision, welfare, placements, disciplinary matters, fitness to practice, unfair practices, procedural irregularities, maladministration, bullying and harassment and discrimination.

If the complaint falls within the OIA jurisdiction it will be investigated. The decisions open to the OIA are that: the student’s complaint is justified; the student’s complaint is partly justified; or the student’s complaint is not upheld. To reach its conclusion the OIA will consider:-

a) whether the university has abided by its own internal procedures for the resolution of complaints or appeals; and /or

b) whether it has acted reasonably in all the circumstances.

If the complaint is held to be justified or partly justified the OIA has the power to make recommendations that the HEI does or refrains from doing something. Also it can recommend the university pays compensation. [Higher Education Act 2004 Sched 2,56, Scheme Rules 7.1] Some examples of recommendations are: that the university should review or change its procedures or regulations to allow a student to attend a fitness to practice hearing, that a university should convene a fresh fitness to practice hearing because it had not followed its own procedures.

A recommendation made in one particular student’s OIA complaint adjudication was for an award of £1,500 compensation to be paid to her. The compensation was awarded to the student for their distress and inconvenience caused by the mishandling of her Academic Misconduct Review Panel hearing, where members of the panel had been involved at an earlier stage. [The student had withdrawn from the course as a consequence.]

The usual aim of any OIA recommendation is to put the student back in the position they would have been in had the inappropriate act or omission of the university not occurred (so far as possible or appropriate.).  It is important that this limitation is not overlooked by potential complainants who on occasions may have unrealistic expectations of what the OIA can do; not only in terms of remedies but also in terms of investigative duties.

The Court of Appeal decision in R (Maxwell) v Office of the Independent Adjudicator for Higher Education [2011] EWCA civ 1236 clarified the limitations on the OIA’s decision making in the context of disability discrimination.

A disabled student had made a complaint against the university under the Disability Discrimination Act 1995. Dissatisfied with the outcome of the university’s internal complaints procedure she made a complaint to the OIA. [Her county court claim for Disability Discrimination was stayed].  She commenced judicial review proceedings against the OIA  because its decision failed to make findings about disability discrimination. She appealed to the Court of Appeal when her application for judicial review was refused by Foskett J. The Court of Appeal dismissed her appeal. It held: The issue for the OIA in this matter was not to decide whether Ms Maxwell was in fact the victim of disability discrimination or whether the university is liable to her for such discrimination. The OIA’s task was to review Ms Maxwells’ complaint, which included a complaint of discrimination, to see whether the university’s decision was reasonable in all the circumstances and was justified and, if so, to what extent, and what recommendations should be made to the university. The courts were not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues such as whether or not there had been disability discrimination. Adjudication on the issue usually involved making decisions on contested questions of fact and law, which required the more stringent and structured procedures of civil litigation for their proper determination.  The OIA made an adequately reasoned decision in accordance with its procedures, in accordance with the law and as a proper exercise of its wide discretion. The OIA could not be judicially reviewed for declining, in its discretion, to give a decision on the different issue of whether the university had committed acts of disability discrimination in breach of the Disability Discrimination Act 1995. That was not a question the OIA was obliged to answer in the conduct of its review or in exercising its discretion in the form of recommendations. Per Curiam: the judicialisation of the OIA process would not be in the interests of students generally. Although the specific context of the case was disability discrimination, it is arguable that the findings of the Court of Appeal apply equally across the whole spectrum of complaints that the OIA deals with.  For example, students should not expect the OIA to investigate whether or not there were legitimate fitness to practice issues. [The student applied for permission to appeal to the Supreme Court. However, the Supreme Court refused permission on the grounds that: the appeal does not raise a point of law of general public importance.]

So far there has only been one successful judicial review against the OIA.  In R (on the application of Tiago Cardao- Pilo) V OIA [2012]  EWHC 203 (Admin) the High Court overturned the OIA’s decision on the basis that it had not dealt with the London Bushiness School’s failures to follow its own procedures and had not given reasons for its decision. In addition the OIA had failed to give reasons for the level of award of compensation that had been recommended. There was an initial recommendation of £250 and which then increased to £6,500.

The most recent claim for judicial review was heard and dismissed by Mostyn J on 5 February 2013.  Eric Burger v OIA [2013] EWHC 172 (Admin) Mr Berger failed an examination at re-sit. The complaint to the OIA had related to the examination process at LSE. There were two grounds in the application for judicial review (1) Did the Deputy Adjudicator make an error in her decision? ; 2) Was the interested party (LSE) in breach of their own instructions and rules? Mostyn J concluded that although the Deputy Adjudicator made an error about the requirement to publish assessment criteria it would not have made any difference to the claimant’s performance in the exam and the complaint should have been dismissed under rule 3.5 or alternatively under rule 4.1 (failing to exhaust internal procedures as the point about assessment criteria had not been raised internally). In the circumstances it was held that the error was not material and did not warrant relief by way of judicial review. Mostyn J also went on to consider what the likely effect would be if he quashed the decision and the OIA considered the complaint anew.  He concluded that the complaint would be dismissed again. “Therefore I consider it most improbable that the claimant will succeed in what he sincerely wishes for, which is to be able to take, and hopefully pass, the exam again so that he can go on to complete his Ph.D at the LSE. I cannot see any prospect of that.”

Recommendations by the OIA are not binding on the student so he can pursue other legal remedies (if there are any).  The Scheme Rules 7.2 states “The OIA expects the HEI to comply with any Recommendations made in the Complaint Outcome in full, and in a prompt manner.”  However, there is no power to enforce non-compliance save that the University concerned will be referred to in the Annual Report.

Paula Clements

April 2013

Education Law BarristersFor legal advice and legal representation in Office of the Independent Adjudicator (OIA) complaint proceedings, contact Education Law Barristers in strict confidence and without obligation on: 0845 652 0451