Siborurema, R (on the application of) v Office of the Independent Adjudicator

A designated statutory operator reviewing student complaints performs a public function and is amenable to judicial review. Judicial supervision is nevertheless limited and must reflect the statutory scheme, the operator’s expertise and its broad discretion over the nature and extent of a review.

The operator may ordinarily begin with the higher education institution’s regulations and procedures. It need not rehear the merits or conduct a fresh factual investigation in every case, although a fuller investigation may be required where necessary to decide whether a complaint is justified. A policy of using a standard form of review is lawful if exceptions remain available. Procedural fairness requires disclosure of material obtained from another party, but a failure will not invalidate the decision where it could not realistically have affected the outcome.

The claimant, a nursing student at London South Bank University, failed elements of a course unit after several attempts. The University withdrew him from the course. It rejected his appeal, which relied on mitigating personal circumstances and asserted that he should have been allowed to repeat the unit with attendance.

The Office of the Independent Adjudicator for Higher Education found his qualifying complaint unjustified. It considered that the University had reasonably followed its procedures and that tutorial support for further examinations was appropriate. The claimant sought judicial review. Mitting J refused permission in the Administrative Court: [2006] EWHC 3170 (Admin).

The Court of Appeal considered whether the OIA was amenable to judicial review, whether its Scheme required a full merits review or fresh investigation, and whether its procedure and reasons rendered its decision unlawful.

1. Appeal dismissed. The Court refused the application for judicial review. Pill LJ gave the leading judgment, with which Moore-Bick and Richards LJJ agreed.
2. The OIA was amenable to judicial review. Under the Higher Education Act 2004, it was the designated operator of a statutory scheme which required qualifying institutions to comply with scheme obligations. Its function had a strong public element and could not be treated merely as private alternative dispute resolution. Judicial review was available for legal error as well as bias or procedural unfairness.
3. The scope of review remained limited. Schedule 2 imposed a duty to decide whether a complaint was justified, but did not prescribe the method of review. The OIA had a broad discretion to select an approach suited to the complaint. It could normally use the institution’s regulations and procedures as a reliable starting point, and assess whether its decision was reasonable in all the circumstances. That power could extend to examining the reasonableness of the regulations and to investigating underlying facts, but it imposed no general duty to rehear the merits or conduct an enquiry de novo.
4. Richards LJ added that the OIA could lawfully adopt a policy of normally asking the questions in paragraph 7.3 of its Scheme. It had to remain willing to depart from that policy in an appropriate case and consider representations seeking a different approach. Nothing in this case required an exception.
5. The University’s further letter of 21 November 2005 should have been disclosed to the claimant before the final decision. That procedural failure did not justify quashing the decision. There was no real possibility that submissions about funding for a complete repeat of the unit would have affected the OIA’s conclusion. Its decision letters, read together and with appropriate benevolence, disclosed no material misdirection; the finding that the complaint was unjustified was open to it.

1. Court of Appeal (Civil Division): Dismissed the appeal and refused the application for judicial review: [2007] EWCA Civ 1365.
2. High Court, Administrative Court: Mitting J refused permission to apply for judicial review: [2006] EWHC 3170 (Admin).