R (Gopikrishna) v The Office of the Independent Adjudicator for Higher Education

The court quashed the OIA's Amended Complaint Outcome and remitted the matter to the OIA for re-consideration because the OIA failed adequately to address legally material issues arising from the university decision to terminate the claimant's course. Key legal principles engaged were the OIA's statutory remit under s.12 of the Higher Education Act 2004 (including the exclusion for matters "to the extent that they relate to matters of academic judgement"), the OIA Rules (notably provisions governing exhaustion of internal procedures and the OIA's discretion to accept complaints in "exceptional circumstances"), and the common law limits on review of academic judgment.

The court found material errors in the factual matrix relied on by the OIA (in particular the incorrect assumption that a personal-tutor letter from Dr Clarke had been before the TCRP), and that the OIA had not properly considered whether the Academic Progress Committee had impermissibly taken irrelevant matters into account (the so-called "weak student in the past" finding) or had been procedurally unfair (including the non-attendance of the personal tutor and the TCRP's treatment of Year 1 mitigation). Those defects meant the OIA had not applied the statutory test or its own rules with sufficient analysis, so the decision was quashed and remitted for a fresh review.

Background and parties: The claimant was a former second-year medical student whose course was terminated by the University of Leicester after she failed Year 2 assessments. She appealed to the Academic Progress Committee (APC) and then to the Termination of Course Review Panel (TCRP), both of which upheld termination. The claimant complained to the Office of the Independent Adjudicator (OIA), which issued an amended Complaint Outcome finding the complaint not justified. The claimant sought judicial review of the OIA decision.

Nature of the application / relief sought: Judicial review of the OIA's final decision (the amended Complaint Outcome issued 27 June 2013). The claimant sought quashing of the decision and remittal to the OIA for proper consideration of issues including whether the university's refusal to re-open the case constituted a fresh decision for OIA review, whether "exceptional circumstances" applied, and whether the APC/TCRP process involved unfairness or irrelevant reasoning.

Procedural history: Permission to seek judicial review was initially refused on the papers by Stuart-Smith J and subsequently granted after an oral hearing by Prof. Grubb (reported at [2014] EWHC 743 (Admin)). The substantive judicial review hearing was before HHJ Curran QC.

Issues framed by the court:

• Whether the OIA correctly applied s.12 of the Higher Education Act 2004 and the OIA Rules in determining jurisdiction and scope of review, including the "academic judgement" exclusion;
• Whether the university's letter (22 August 2012) declining to re-open the claimant's case was a "fresh decision" reviewable by the OIA and, if so, whether the OIA reasonably exercised its discretion under the OIA Rules (exceptional circumstances) to accept or refuse to review that matter;
• Whether the OIA's decision was infected by material error of fact (notably the assumption that the personal-tutor letter had been before the TCRP) and by failure to address allegations of procedural unfairness and irrationality in the APC/TCRP process;
• Whether parity or public law obligations (including equality considerations) affected the proper exercise of the OIA's function.

Court's reasoning (concise): The court accepted that the OIA is amenable to judicial review but that review must respect the limited role of the OIA and the scope of academic-judgement immunity. Applying authorities on academic judgement and on mistake of fact as a ground of review, the court concluded that:

• the university's 22 August 2012 reply to the OIA amounted to a decision (or, at least, an omission) in relation to fresh evidence and thus fell within the OIA's potential review jurisdiction under s.12; the OIA ought to have considered that issue more carefully;
• the OIA had relied upon a factual error (the belief that the personal tutor's letter was before the TCRP) which was material to its reasoning and which met the test in E v Secretary of State for the Home Department for mistake-of-fact challenges (the fact was established, objectively verifiable, the claimant was not responsible for the mistake, and the mistake was material);
• the OIA failed to grapple adequately with allegations that the APC had taken irrelevant matters into account (counting Year 1 performance without balancing Year 1 mitigation and the Year 1 qualifying exam result) and with the TCRP's handling of Year 1 mitigation, matters that could take the case outside the pure academic-judgement exclusion (and therefore were reviewable);
• for these reasons the OIA's decision-making process was defective and the outcome could not be sustained; accordingly the Amended Complaint Outcome was quashed and the matter remitted to the OIA for fresh consideration on a correct factual basis.

The court also commented on the complexity and practical difficulties faced by the OIA in this case but concluded that those contextual factors did not excuse the legal and factual shortcomings identified.

The claim is allowed in part: the court quashed the OIA's Amended Complaint Outcome and remitted the complaint to the OIA for re-consideration. Rationale: the OIA's decision was infected by material factual error (the mistaken belief that the claimant's personal-tutor letter had been before the TCRP), and the OIA failed to address arguable points of procedural unfairness and irrationality in the APC/TCRP decision-making that could take the matter outside the statutory academic-judgement exclusion (s.12 HEA 2004) and render the decision reviewable. The matter is to be re-considered by the OIA on the true facts and with appropriate analysis of the issues identified.

Permission originally refused on the papers by Stuart-Smith J (28 October 2013). Permission subsequently granted after an oral hearing by Prof. Grubb, deputy judge of the High Court, reported as [2014] EWHC 743 (Admin). This judgment is at first instance (administrative court) on the substantive judicial review application: [2015] EWHC 207 (Admin).