Maxwell, R (on the application of) v The Office of the Independent Adjudicator & Anor

The Office of the Independent Adjudicator may consider disability discrimination law when deciding whether a higher education institution acted fairly and reasonably. It is not required to make a formal finding of discrimination, since that is a matter for the County Court under the Disability Discrimination Act 1995. The OIA may express a provisional view on the apparent strength of a discrimination complaint where appropriate, but it has a broad discretion whether to do so. A decision not to express such a view is not necessarily irrational or contrary to the statutory duty to have due regard to disability equality objectives.

The claimant, a disabled student, challenged the OIA’s decision on her complaint against the University of Salford. She alleged that the University had failed to make reasonable adjustments for her disability and had thereby discriminated against her. The OIA considered disability discrimination law when assessing whether the University had acted fairly and reasonably, but stated that its decision did not make findings about disability discrimination.

The claimant argued that the OIA was legally required to decide whether discrimination had occurred. The central issue was whether the OIA’s statutory function required a formal finding, or an expressly stated view, on disability discrimination.

1. Claim dismissed. The OIA’s statutory task was to decide the extent to which the complaint was justified. Its rules gave it a broad discretion as to the nature and extent of the review.
2. The OIA was not a court determining legal rights or civil liability. A formal finding of disability discrimination, in the accepted legal sense, was for the County Court under the Disability Discrimination Act 1995. The OIA’s decision was not binding in subsequent County Court proceedings.
3. The OIA could nevertheless consider the law and guidance on disability discrimination when deciding whether the University had acted fairly and reasonably. It could also express a provisional view on the apparent strength of a discrimination complaint, provided that it made clear that the view lacked the authority of a court’s determination.
4. There was no general obligation requiring the OIA to express such a view in every case. Its decision whether to articulate the view expressly was a matter for its judgment, subject to the statutory purposes governing its discretion. The failure to state an express view did not, without more, breach section 49A of the Disability Discrimination Act 1995 or amount to irrationality.
5. The draft decision’s statement that discrimination had not been raised was inaccurate and self-contradictory, but that paragraph was removed from the final decision. The final decision consistently explained that discrimination had been taken into account when assessing the University’s procedures and reasonableness. The claim therefore failed.

Permission to apply for judicial review was granted by Hickinbottom J on 12 August 2009. The Administrative Court dismissed the claim.