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

The Office of the Independent Adjudicator for Higher Education has a broad discretion as to the nature and extent of its review. It may review an institution’s procedures and reasonableness, or investigate the merits more fully, depending on the complaint. Its decisions remain amenable to judicial review for legal error. Reasons need not be elaborate, but must address the principal issues and adequately explain any recommendation, including compensation. The exclusion of matters of academic judgement does not prevent review of misconduct, procedural unfairness or other institutional failures merely because they may have affected academic performance. Where compensation is awarded for a lost opportunity, the decision-maker must give at least brief reasons explaining the valuation of that opportunity.

The claimant was removed from a doctoral programme after receiving a C grade for a research paper. He complained that his supervisor had acted with bias and had inadequately supervised him, that the internal appeal had been procedurally mishandled, and that the London Business School had discouraged him from appealing. He also challenged the OIA’s treatment of alleged harassment, academic assessment and compensation.

The OIA issued a first decision partly upholding the complaint and recommending £400. During judicial review proceedings it reopened the matter and issued a second decision, recommending £6,500 and an investigation under its harassment and bullying procedure. The central issues were whether the OIA could reopen its decision, the scope of its jurisdiction, and whether its decisions were adequately reasoned.

1. Outcome. The OIA’s determinations dated 25 November 2010 and 23 September 2011 were quashed. The complaint was remitted to the OIA for redetermination. The OIA was ordered to pay £1,776 in costs and the interested party £1,000.
2. The OIA’s statutory scheme under the Higher Education Act 2004 gives it a broad and flexible discretion as to the nature and extent of its review. It may examine whether an institution applied its regulations, followed its procedures and acted reasonably. It may also conduct a fuller investigation, but is not required to do so. The court should recognise the OIA’s expertise and intervene cautiously where its decision is adequately reasoned.
3. The exclusion of complaints relating to academic judgement did not exclude complaints about supervisory misconduct, bias, procedural unfairness or institutional failures which affected the student’s academic work. The actual academic mark and the examiner’s suitability remained matters of academic judgement outside the OIA’s remit.
4. The OIA could, in the exceptional circumstances of this case, reopen its first decision. The statutory scheme was intended to be flexible and responsive, and no legal principle required a different result merely because the decision was final in form. This power should be exercised only rarely and in wholly exceptional circumstances.
5. The OIA was entitled to find that the School should have referred the claimant’s allegations of bias and harassment for proper consideration, and that attempts to deter him from appealing were inappropriate. It was also entitled to leave the underlying allegations unresolved and require the School to investigate them.
6. The first decision failed to explain why the claimant bore significant responsibility for the problems or how £400 had been calculated. The second decision adequately explained why the full scholarship loss was not awarded, but failed to explain the £5,000 compensation for loss of the opportunity to have the appeal heard. Once the OIA chose a middle-ground, compensatory approach, it had to assess and explain the value of the lost opportunity, even on a broad-brush basis.
7. The OIA’s reasoning was also inadequate because it did not address whether the alleged supervisory misconduct, if established, might have affected the claimant’s performance. Its decisions therefore could not stand.

This was a first-instance judicial review. The claimant’s permission application was initially refused, but permission was granted after an oral renewal before HH Judge Raynor QC. The proceedings were then stayed by HH Judge Pelling QC to allow the OIA to issue a fresh decision. The Administrative Court quashed both OIA decisions and ordered redetermination.