Budd v Office of the Independent Adjudicator for Higher Education

An ombudsman-style higher education reviewer has a broad discretion to determine the form and intensity of its investigation. It must investigate until it has sufficient material to decide whether the complaint is justified, but it need not conduct a rehearing or a full merits review in every case. The reviewer may rely on evidence of institutional procedures and checks rather than inspect an examination script, where that evidence adequately resolves the procedural complaint and inspection would require academic judgment. A policy or statement must not unlawfully fetter the discretion, but an erroneous description of the reviewer’s powers will not invalidate a decision where it had no practical effect. An oral hearing is required only where necessary for a fair determination of the particular complaint.

The claimant, a student of the Open University, challenged the defendant’s rejection of his complaint about the University’s handling of an examination-mark appeal. He alleged procedural irregularity, irrationality, failure to investigate, fettering of discretion and denial of a fair hearing.

The central issue was whether the Office of the Independent Adjudicator had lawfully reviewed the complaint without obtaining the examination script, conducting a more intensive merits investigation or holding an oral hearing.

1. Disposition. The substantive judicial review claim was dismissed. The renewed applications for permission on the further grounds were refused.
2. The statutory duty was to review the complaint and decide whether it was justified. Under the Higher Education Act 2004 and the Scheme, the OIA had a broad discretion as to the form and extent of the review. It was not useful or accurate to treat a “full merits review” as a fixed procedural threshold. The OIA had to continue investigating until it was confident that it possessed the material needed to decide the individual complaint. [64]-[74]
3. The statement in the OIA’s decision that it could only consider procedural breach or unfairness was wrong. It was not, however, material on the facts. The OIA had considered whether the University’s procedures had been followed and whether its decision was reasonable, and there was no further investigation which it ought to have undertaken. [72]-[87]
4. The OIA was not required to obtain the examination script merely because the claimant requested it or because it had initially requested documents in terms capable of including it. The relevant procedural issues were attribution of the script, transcription and addition of marks. Evidence of the University’s checking procedures, repeated checks in the claimant’s case and the absence of any separate addition exercise adequately supported the conclusion reached. Inspecting the script to assess the quality or allocation of marks would have involved academic judgment, which was outside the OIA’s remit. The decision was neither irrational nor procedurally defective. [75]-[84]
5. Rule 6.2 required the OIA to consider whether an oral hearing was necessary, but conferred no general right to one. The evidence showed that the discretion was considered in individual cases and had not been fettered. Nothing in this case required oral evidence or oral submissions to resolve the complaint, so the written inquisitorial procedure was fair. [88]-[93]
6. The allegation that the OIA lacked independence was unsupported. Independence required the reviewer to be independent of the parties and free from improper pressure. Funding by higher education institutions, advice to institutions and the structure of the Board did not, without evidence of influence, establish a breach of that requirement. [94]-[104]

First-instance judicial review proceedings in the Administrative Court. The court dismissed the substantive claim and refused permission on the renewed grounds.