Burger v The Office of the Independent Adjudicator for Higher Education & Anor

An error in an administrative decision may be immaterial where the court is satisfied that, without the error, the outcome would inevitably have been the same. Probability alone is insufficient, and the reviewing court must avoid deciding the substantive merits for itself.

The Office of the Independent Adjudicator for Higher Education has broad discretion to determine the nature and extent of its investigation. It must use rational and fair procedures, address the substance of the complaint and give adequate reasons. It is not a judicial body, and a reviewing court should recognise its expertise and exercise caution before finding its procedure improper or its decision legally unsustainable.

The appellant, a former postgraduate student at the London School of Economics, complained about the preparation, assessment and marking of examinations which prevented his progression to a PhD. After exhausting the institution's procedures on those complaints, he complained to the Office of the Independent Adjudicator for Higher Education. He then raised the institution's failure to publish assessment criteria under its instructions for examiners.

The OIA mistakenly concluded that the instructions did not require publication. Mostyn J found that error immaterial because publication would not have affected the appellant's examination performance and he had not raised the publication complaint through the institution's internal procedure. The appellant appealed, contending that the judge could not be certain that the OIA's decision would inevitably have been the same and had improperly entered the merits.

1. Appeal dismissed. The OIA had erred by confusing assessment generally, including marking schemes, with published assessment criteria as a distinct term. That error did not justify relief because the complaint would inevitably have been dismissed for failure to exhaust the institution's internal complaints procedure.

2. The appellant's complaints to the institution concerned inadequate preparation for the examinations, the mismatch between teaching and assessment, and communication about the allocation of marks. He did not raise the distinct complaint that the Economics Department had failed to publish assessment criteria. The institution therefore had no opportunity to consider either that breach or its materiality.

3. A court may treat an error as immaterial only where it is satisfied that the decision would inevitably have been the same. Mere probability is insufficient, and the court must remain within its reviewing function. Read as a whole, Mostyn J's judgment applied that test despite his unfortunate use of the word “likely”. He was entitled to conclude that the OIA would inevitably have dismissed the complaint for non-exhaustion and that publication would have made no difference.

4. The evidence also demonstrated an absence of prejudice. The assessment criteria did not impose a requirement for detailed referencing. The appellant was experienced in the relevant examinations, had received feedback and had been given appropriate preparatory problems.

5. The OIA has broad discretion over the nature and extent of its investigations. It must follow rational and fair procedures, address the substance of complaints and give adequate reasons. It was established to provide speedy, effective and cost-effective resolution rather than to act as a court, tribunal or other judicial body. A reviewing court must therefore examine its response in a manner appropriate to the nature of the complaint and should recognise its expertise. Here, the OIA had followed a rational and fair procedure, supplied adequate reasons and addressed the substance of the complaints.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal and upheld Mostyn J's conclusion that the OIA's error was immaterial. [2013] EWCA Civ 1803

2. High Court, Queen's Bench Division: Mostyn J concluded that the OIA had misunderstood the obligation to publish assessment criteria, but held that the error made no difference. The complaint would have been dismissed because the appellant had not exhausted the institution's internal procedure and publication would not have affected the result.

3. High Court permission stage: Holman J granted permission for judicial review on limited grounds concerning the duty to publish assessment criteria and whether the institution had breached its own instructions.