R (Maxwell) v OIA

The Court of Appeal dismissed the claimant's appeal against the refusal of judicial review of an Office of the Independent Adjudicator (OIA) Final Decision. The court held that the OIA, exercising its broad statutory discretion under the Higher Education Act 2004 and in the context of Part 4 of the Disability Discrimination Act 1995, is not obliged to make a formal adjudication or "finding" that an institution has committed unlawful disability discrimination; it may form a provisional view without expressing it. The OIA's informal, inquisitorial review and recommendation process differs from adversarial civil litigation in the county court, which remains the proper forum for formal determinations of statutory liability and remedies. The OIA had provided adequate reasoning for its recommendations and did not act irrationally or beyond its powers.

Background and parties:

The applicant, Shelley Maxwell, a student diagnosed with narcolepsy, complained that the University of Salford failed to implement recommended reasonable adjustments, causing detriment in her studies. After internal complaints, she submitted a complaint to the OIA, which delivered a Final Decision on 23 December 2008 recommending the University repeat tuition for a year, pay compensation and review its procedures. Dissatisfied that the OIA did not make a concluded finding of unlawful disability discrimination under the Disability Discrimination Act 1995 (Part 4), she sought judicial review of the OIA decision; Foskett J dismissed that claim. Permission to appeal was ultimately granted to the full Court of Appeal.

Nature of the application and relief sought:

• The application was for judicial review of the OIA Final Decision and sought quashing of that decision and a re-consideration requiring the OIA to express a conclusion that the University had unlawfully discriminated.

Issues framed:

• Whether the OIA was under a legal duty to reach and express a concluded finding that the University had committed unlawful disability discrimination.
• Whether the OIA was required to give more detailed reasons explaining how it had taken discrimination law into account and the weight given to it.
• Whether the OIA properly exercised its discretion and provided an adequately reasoned decision.

Court's reasoning and subsidiary findings:

The court explained the statutory and procedural context: complaints of disability discrimination are eligible for review by the OIA under the Higher Education Act 2004, but the substantive civil cause of action and associated remedies under Part 4 of the Disability Discrimination Act 1995 are for the county court. The OIA's role is an informal, inquisitorial review to determine the extent to which a complaint is justified and to make non-binding recommendations; it is not a substitute for adversarial proceedings. The court accepted Foskett J's analysis that the OIA may form provisional views about the strength of discrimination allegations and may, if it chooses, express such views, but it is not under a general obligation to make formal "findings" of discrimination. Requiring the OIA to perform detailed fact-finding and legal adjudication akin to county court proceedings would judicialise and undermine the informal, cost-effective scheme that Parliament intended. The OIA's Final Decision, despite an amended draft and deletion of an erroneous paragraph, was held to be adequately reasoned and within the OIA's wide discretion.

Procedural posture: This was an appeal from a decision of Foskett J (Administrative Court) dismissing the claimant's judicial review claim; the Court of Appeal dismissed the appeal and upheld the OIA's Final Decision.

Appeal dismissed. The Court of Appeal upheld the judge below: the OIA is not under a legal obligation to make formal adjudications or definitive findings of unlawful disability discrimination in its Final Decisions; it may form provisional views and decide whether to express them. The OIA's informal review function and broad discretion, and the availability of the county court for formal determinations under the Disability Discrimination Act 1995, mean that courts will not require the OIA to perform adversarial fact-finding; the OIA's Final Decision contained adequate reasons and did not involve an error of law or irrationality.

The OIA issued its Final Decision on 23 December 2008. The claimant sought judicial review in the Administrative Court; Foskett J dismissed the claim (judgment 23 July 2010). Jackson LJ refused permission to appeal on 13 October (2010). Permission to appeal was subsequently granted by the Court of Appeal and the appeal was heard and determined by the Court of Appeal (neutral citation [2011] EWCA Civ 1236, judgment 27 October 2011).