Oxford Brookes University v Mcckoy

University examiners must exercise academic judgment within the limits of the university’s governing regulations. A general power to assess students or interpret assessment rules does not permit a committee to create a withdrawal power inconsistent with an express progression rule. The regulatory scheme must be read as a whole. Where discretionary withdrawal powers are expressly identified in some provisions but absent from another, that contrast is significant. A student is entitled to a further permitted attempt where the relevant rule imposes an upper limit on attempts without conferring discretion to refuse it. An important power to terminate a student’s course cannot be implied merely from academic or public-protection responsibilities.

Ms Amanda McKoy was enrolled on an accelerated midwifery degree course at Oxford Brookes University. After failing two practice-based modules, the university required her to withdraw, construing regulation 14(vii) of its Undergraduate Modular Programme Regulations as imposing only an upper limit of two attempts and not conferring a right to retake.

The university’s examination and appeals committees upheld that decision. The Office of the Independent Adjudicator for Higher Education dismissed her complaint. On judicial review, McCombe J held that the regulation entitled her to take each module twice, declared the withdrawal decision unlawful and quashed it. The university appealed, raising the construction of regulation 14(vii) in the context of the university’s Articles of Government and academic regulations.

Appeal dismissed unanimously. The Court of Appeal upheld the declaration that the university’s decision was unlawful and confirmed that the university had no discretion under the regulations to refuse Ms McKoy permission to take the modules again.

1. The general academic regulations did not give examiners an unlimited power. Regulation C1.3 conferred wide discretion in reaching decisions on awards, but expressly made that discretion subject to the requirements of regulation C1.1 and the programme’s assessment regulations. Academic judgment had to be exercised within those regulatory constraints.
2. The structure of regulation 14 was material. Several provisions used discretionary language, including provisions allowing the university or its examination committee to require withdrawal. Regulation 14(vi) indicated that a student could take a specific field requirement three times, after which withdrawal might be required.
3. Regulation 14(vii), read in that context, qualified regulation 14(vi) in two respects. It reduced the maximum number of attempts for a practice-based module from three to two and removed the university’s discretion to prevent the further attempt. A student who had failed a practice-based module was therefore entitled to take it once more, subject to the regulation’s overall limits. Withdrawal followed only where the student was consequently unable to complete an award.
4. The university’s responsibilities for professional standards and public protection did not enlarge its powers beyond those conferred by its regulations. The regulations had to be applied according to their proper construction.
5. Sir David Keene added that the power claimed by the university was significant, particularly given the contractual relationship and financial commitment between student and university. Regulation 14 provided a comprehensive scheme of withdrawal powers, and no additional power could be implied after merely one failure in a practice-based module.

• Court of Appeal (Civil Division): On 17 November 2009, the appeal was dismissed. [2009] EWCA Civ 1561
• Administrative Court, Queen’s Bench Division: McCombe J heard the judicial review claim on 19 February 2009, declared the withdrawal decision unlawful and quashed it.