Maxwell, R (on the application of) v The Office of the Independent Adjudicator for Higher Education

An independent higher-education complaints reviewer is not required to adjudicate disputed legal rights or make a formal finding of disability discrimination. Its function is to conduct a flexible and informal review of a student complaint, decide the extent to which it is justified, and make recommendations.

A court cannot use judicial review to impose the procedures or outcomes of civil litigation on that scheme. The reviewer may form a provisional view on the apparent strength of a discrimination allegation, but may decide whether to express it. An adequately reasoned decision is not unlawful merely because it declines to determine whether unlawful discrimination occurred.

The appellant, a student with narcolepsy, complained that her university had failed to make appropriate adjustments for her disability. The Office of the Independent Adjudicator upheld her complaint in part and recommended renewed tuition-fee assistance, compensation and a review of the university’s procedures. It did not make a finding of disability discrimination.

Foskett J dismissed her judicial-review claim on 23 July 2010. She appealed, contending that the reviewer had to decide the discrimination issue, give fuller reasons for its recommendations, and exercise its discretion by taking discrimination into account.

1. Appeal dismissed. The Office of the Independent Adjudicator had not erred in law and there was no basis to quash its final decision.
2. The statutory complaints scheme operated under the Higher Education Act 2004 provides an informal, inquisitorial and flexible review process. Its purpose is to review an unresolved qualifying complaint, determine the extent to which it is justified, and make recommendations. It is not a court or tribunal determining contested rights and obligations.
3. Proceedings concerning unlawful disability discrimination under Part 4 of the Disability Discrimination Act 1995 were civil proceedings in the county court. Their determination could require pleadings, disclosure, oral evidence, cross-examination and findings on contested facts and law. The informal complaints procedure was not intended to replicate that judicial process or to substitute for it.
4. The court applied the account of the reviewer’s role in R (Siborurema) v Office of the Independent Adjudicator [2007] EWCA Civ 1365. A reviewer may form a provisional view about the apparent strength of a discrimination allegation when assessing the reasonableness of the institution’s response. It is nevertheless under no legal duty to express that view or to make a formal adjudication of discrimination.
5. The final decision addressed the issue properly before the reviewer: whether the student’s complaint against the university was justified and, if so, what recommendations should follow. It was adequately reasoned and represented a proper exercise of the reviewer’s broad discretion. A dissatisfied complainant seeking an adjudication of unlawful discrimination had the available county-court proceedings as the appropriate route.

• Court of Appeal (Civil Division): Appeal dismissed: [2011] EWCA Civ 1236.
• Administrative Court (Queen’s Bench Division): Foskett J dismissed the judicial-review claim on 23 July 2010.