Burger v Office of the Independent Adjudicator for Higher Education

An error of fact in an adjudication will justify judicial review only if it is material to the outcome. Where the complaint would inevitably have been dismissed on other grounds, relief may be refused even though the adjudicator misunderstood an issue.

Assessment criteria, understood as descriptions of the standards associated with different grades, must be published to students under the relevant examination instructions. They are distinct from marking schemes, which need not, and should not, be disclosed before an examination.

The claimant challenged the Office of the Independent Adjudicator’s dismissal of his complaint about an examination taken at the London School of Economics and Political Science. He argued that the Deputy Adjudicator had wrongly concluded that the LSE’s examination instructions did not require assessment criteria to be disclosed to students, and that the LSE had breached its own instructions by failing to publish those criteria.

Permission to apply for judicial review was granted on those limited grounds. The central issues were the meaning of “assessment criteria”, the distinction between assessment criteria and marking schemes, and whether any error by the Deputy Adjudicator was material.

1. The application for judicial review was dismissed. The court was concerned with the lawfulness of the OIA’s adjudication, not with reconsidering the claimant’s underlying examination complaint.

2. Paragraph 6.1(b) of the Instructions for Examiners for Taught Programmes 2008/2009 required the LSE to prepare and publish assessment criteria for examinations. The published examples showed that assessment criteria comprised verbal descriptions of the standards expected for different grades. They did not describe the syllabus, the scope of the course, or the subject matter of individual questions.

3. Assessment criteria were therefore distinct from a marking scheme. A marking scheme, including suggested answers to examination questions, was not required to be published before an examination. There could be no reasonable suggestion that students were entitled to receive it in advance.

4. The Deputy Adjudicator had erred by conflating assessment criteria with marking schemes and by concluding that paragraph 6.1(b) did not require publication of assessment criteria. However, the error was not material. If the distinction had been understood, the complaint would still have been dismissed because publication of the relevant grade descriptors could not plausibly have affected the claimant’s examination performance.

5. The court also considered that the complaint would likely have been excluded because the claimant had not raised the publication issue during the LSE’s internal appeal process. The OIA’s rules also permitted exclusion where the matter did not materially affect the complainant as a student.

6. The OIA was amenable to judicial review, but the court would be slow to interfere. Applying the requirement of materiality to errors of fact, the court concluded that quashing the decision and remitting the complaint would serve no useful purpose because the complaint would inevitably have been dismissed again.

The judgment itself records that permission for judicial review was initially refused on the papers by His Honour Judge Stewart QC, then granted on renewal by Holman J on two limited grounds. The High Court (Administrative Court) dismissed the substantive application.