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

An ombudsman scheme funded by participating institutions is not thereby insufficiently independent. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias, taking account of the statutory scheme, governance, appointments and funding. A review body is not required to provide a separate or fixed “full merits” procedure. It must investigate until it has the material needed to decide the complaint and consider the complainant’s evidence and arguments. An oral hearing is required only where necessary for a full and fair review. The Office of the Independent Adjudicator may not use an emergency procedure to determine academic judgment outside its jurisdiction.

The appellant, a medical student, challenged decisions of the Office of the Independent Adjudicator for Higher Education concerning his complaint about the University of Manchester’s refusal to award him the MBChB degree without further study and examinations. He argued that the OIA lacked independence because it was funded by higher education institutions, and that it had unlawfully refused an emergency procedure, a full merits review and an oral hearing.

Burnett J refused permission on the papers, and Deputy High Court Judge David Holgate QC refused permission after a renewed oral hearing. Arden LJ granted permission to appeal. The central issues were whether the OIA was sufficiently independent and whether its proposed procedure was legally deficient.

The substantive application for judicial review was dismissed, although permission to bring it was granted. Longmore LJ gave the judgment, with which Black LJ and Keene LJ agreed.

1. Independence. Applying the fair-minded and informed observer test in Magill v Porter [2002] 2 AC 357, the court held that the OIA was sufficiently independent. Parliament had contemplated funding by higher education institutions through the Higher Education Act 2004. The Board had a majority of independent directors, the Independent Adjudicator was appointed under Nolan Rules, and the scheme required adjudication independently of the Board, institutions and complainants. Funding was collected generally from participating institutions, with no link between an institution’s payment and the number or outcome of complaints.
2. Merits review. The OIA’s rules did not create a fixed threshold called a “full merits review”. Adopting Budd v OIA [2010] EWHC 1056 (Admin), the court held that the reviewer must continue investigating until satisfied that all material needed to decide the complaint had been obtained. If the complainant’s evidence and arguments were considered, the review could constitute a full merits review.
3. Oral hearing. No oral hearing was presently required. One proposed issue was historic and irrelevant. Another involved disputed evidence which had not been clarified. The alleged breach of Regulation XIX raised a legal and documentary question rather than a disputed issue of fact. There was therefore no basis to quash the refusal to hold an oral hearing.
4. Emergency procedure. The OIA was entitled to require a full response from the University. An emergency procedure could not be used to direct that the appellant be treated as having passed his examinations or been awarded a degree, since academic judgment lay outside the OIA’s jurisdiction.

1. Court of Appeal (Civil Division) — Arden LJ granted permission to appeal. The court granted permission for the substantive judicial review application but dismissed it on all grounds.
2. High Court, Queen’s Bench Division, Administrative Court — Burnett J refused permission on the papers. Deputy High Court Judge David Holgate QC refused permission after a renewed oral hearing.