Sandhar, R (on the application of) v Office of the Independent Adjudicator for Higher Education & Anor

The Court of Appeal considered whether the Office of the Independent Adjudicator for Higher Education (OIA) is sufficiently independent for the purpose of reviewing students' complaints and, if independent, whether it should have used an emergency procedure or provided a full merits oral hearing in the applicant's case. The court applied the fair-minded and informed observer test derived from Magill v Porter to the OIA's constitution, funding and procedures.

The court concluded that the OIA was a body designated under the Higher Education Act 2004 and that parliamentary design and the OIA's internal safeguards (a majority of independent directors, an Independent Adjudicator appointed under Nolan principles, and rules insulating adjudication from board control) reasonably preserved independence despite HEI funding under section 15(3). The court rejected the contention that funding by participating higher education institutions produced a real possibility of bias.

On procedural challenges the court held that a "full merits review" is a flexible concept for the OIA and that it was for the complainant to supply material for consideration; the OIA may decide whether an oral hearing is necessary. Because the applicant had not engaged with the OIA's requests for comment and because the relief sought (being deemed to have passed finals) would require the OIA to usurp academic judgment, the court refused judicial review of the OIA's refusal to adopt the proposed emergency procedure and refused to quash its decisions regarding the oral hearing and the scope of review.

This was an application for judicial review pursued to the Court of Appeal after earlier refusals to grant permission. The appellant, a final-year medical student, sought an emergency remedy from the OIA to compel the university to award him a degree (specific performance), along with a declaration and injunction, and alternatively requested a full merits review, an oral hearing and expedited consideration. The appellant challenged the OIA's independence on the basis that it was funded by higher education institutions and therefore susceptible to apparent bias.

Procedural and factual background:

• The appellant failed elements of his final examinations in 2008, appealed internally, was given opportunities to re-sit and later failed re-sits in May 2009 and was excluded but subsequently had exclusion revoked and an offer to repeat year 5; he did not take up the repeat.
• He complained to the OIA in October 2009 seeking immediate remedies and an expedited, oral, full merits review; the OIA indicated it required the university's full response and that the nature and extent of review was for the case handler to decide.
• The appellant did not provide comments on the university's submissions despite being invited to do so and issued pre-action letters and judicial review proceedings challenging the OIA's independence and its procedural choices.

Issues framed by the court:

• Whether the OIA was independent for the purposes of the Magill v Porter fair-minded and informed observer test;
• Whether the OIA was obliged to conduct an "emergency" procedure to enable the appellant to accept provisional employment offers;
• Whether the OIA had improperly refused a full merits review or an oral hearing.

Court's reasoning and conclusions:

• The OIA had been designated under Part 2 of the Higher Education Act 2004; section 15 obliged institutions to comply with the scheme and to pay fees, but the statutory scheme and the OIA's rules (majority independent directors, appointment of the Independent Adjudicator, and a board role limited to preserving independence) meant that funding by HEIs did not create a real possibility of bias.
• The court endorsed the view that a "full merits review" is not a rigid threshold but a continuous exercise by the case-handler to gather material sufficient to decide a complaint; the complainant must put forward material for consideration and the OIA may decide whether an oral hearing is necessary.
• The appellant's substantive aim — to be deemed to have passed his finals — would require the OIA to override academic judgment, which is outside its jurisdiction; an emergency decision to that effect was therefore inappropriate.

Outcome: the Court dismissed the appellant's application for judicial review, having granted permission to apply.

Appeal dismissed. The court held that the OIA is sufficiently independent notwithstanding funding by higher education institutions because statutory designation under the Higher Education Act 2004 and internal safeguards protect adjudicative independence. The court also held that the OIA was entitled to determine the scope of its review and whether an oral hearing was necessary, that the applicant had not provided material requiring an oral hearing, and that the OIA could not properly grant the emergency remedy sought because doing so would require substituting academic judgment.

The proceeding arose from refusals to grant permission to apply for judicial review in the High Court (refusal by Burnett J on the papers and by Deputy High Court Judge David Holgate QC on renewal). Arden LJ granted permission to appeal on 27 May 2011. The matter was heard in the Court of Appeal and decided by Longmore LJ, Black LJ and Sir David Keene ([2011] EWCA Civ 1614).