St George's, University of London v Rafique-Aldawery, R (On the Application Of)

Judicial review is a remedy of last resort where a suitable alternative remedy exists. The Office of the Independent Adjudicator scheme is such a remedy for student complaints, despite its inability to determine legal rights and obligations.

A stay of judicial review proceedings pending an OIA complaint remains legally available. Courts should not, however, impose detailed general procedures which encourage students to issue protective claims. A student may instead notify the higher education institution of the complaint and the possible need for later proceedings. Such notice can be a significant factor if the court is subsequently asked to extend time.

Two former medical students challenged decisions by their respective universities to terminate their registration. Each began judicial review proceedings and obtained a stay pending determination of a complaint by the Office of the Independent Adjudicator. Hickinbottom J gave detailed guidance for coordinating OIA complaints and judicial review proceedings in [2017] EWHC 188 (Admin).

After the OIA rejected both complaints, the students were refused permission to seek judicial review. The universities nevertheless appealed against the stays and the accompanying guidance. The central issue was whether the guidance gave proper weight to judicial review as a remedy of last resort and risked encouraging unnecessary protective proceedings.

1. The appeals were allowed unanimously. The OIA scheme is a suitable alternative remedy for student complaints. Judicial review is a remedy of last resort where such an alternative exists, even if the alternative remedy is not identical to judicial review.

2. The OIA offers a relatively swift, inexpensive and informal process which students can use without lawyers. Although it does not determine legal rights and obligations, it scrutinises a higher education institution's conduct to a standard reflecting judicial review. Its recommendations can also provide flexible practical redress, including reinstatement, and its own decisions are amenable to judicial review.

3. A stay is not legally excluded. Paragraph 3(2)(c)(ii) of Schedule 2 to the Higher Education Act 2004 expressly contemplates a qualifying complaint proceeding where related court proceedings have been stayed. The error lay in issuing detailed general guidance which risked becoming a rigid procedural rule for cases likely to be comparatively rare.

4. That guidance could encourage students to commence protective judicial review proceedings, incur legal costs and circumvent the ordinary short time limits. It could thereby undermine the statutory complaints procedure and place student claimants in a different position from other judicial review claimants.

5. A student will ordinarily have the institution's reasons and sanction when deciding whether to complain. Those materials, together with public information about the OIA's powers, should indicate whether the scheme can provide an effective remedy.

6. An uncertain student may write to the institution setting out the complaint, declining for the time being to commence judicial review, and reserving the possibility of doing so if the OIA process proves inadequate. If the institution later raises delay, its prior notice of the detailed complaint will be a significant factor when the court exercises its discretion whether to extend time.

Nicola Davies LJ gave the judgment. Irwin and Lindblom LJJ agreed.

1. Court of Appeal (Civil Division): Allowed the universities' appeals against the stays and guidance in [2017] EWHC 188 (Admin).
2. Administrative Court: Hickinbottom J stayed both students' judicial review applications pending their OIA complaints and gave general procedural guidance for coordinating the two processes: [2017] EWHC 188 (Admin).
3. Administrative Court: After the OIA rejected both complaints, permission to seek judicial review was refused on the papers and the renewed applications were dismissed.