B, R (On the Application Of) v The Office of the Independent Adjudicator

The question whether proceedings relate to the subject matter of a qualifying complaint under the Higher Education Act 2004 is an objective question of statutory construction for the court, rather than an evaluative question for the OIA subject only to rationality review. Proceedings and a complaint may have the same subject matter despite differences in evidence or emphasis where both seek to reopen or overturn the same fitness-to-practise decision. A Tomlin Order settling court proceedings may therefore engage the statutory exclusion. Relief may also be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would not have been substantially different.

The claimant challenged the OIA’s refusal to consider a complaint concerning the University of Leicester’s refusal to reopen a 2010 fitness-to-practise decision. The claimant relied on material said to be fresh evidence and argued that the complaint concerned the substance of the original decision, whereas earlier High Court proceedings concerned procedural unfairness. Those proceedings had been compromised by a Tomlin Order.

The OIA treated the complaint as ineligible under rule 3.3 because relevant proceedings concerning the same subject matter had concluded. It also considered that the complaint would not have been justified and that the outcome would not have been substantially different. The central issues were who should determine the statutory “subject matter” question, whether the complaint and contract claim concerned the same subject matter, and whether relief should in any event be refused.

1. Statutory question. The issue under paragraph 3 of Schedule 2 to the Higher Education Act 2004 was whether the earlier proceedings related to the subject matter of the qualifying complaint. Applying R (A) v Croydon LBC [2009] 1 WLR 2557, the criterion was objective and admitted of a right or wrong answer. Parliament intended the court to decide it, rather than the OIA subject only to Wednesbury review. R (Mustafa) v OIA [2013] EWHC 1379 (Admin) and R (AC) v OIA were helpful by way of background, although they concerned a different statutory provision.
2. Same subject matter. The contract claim and the later complaint both sought, in substance, to overturn or reopen the same fitness-to-practise decision. The complaint placed greater emphasis on new evidence, but it also raised procedural unfairness and pursued the same ultimate objective of clearing the claimant’s name. The court should not artificially divide proceedings and a complaint where they essentially concern the same matter. The Tomlin Order therefore meant that relevant proceedings had concluded, making the complaint outside the statutory conditions. The claim was dismissed on this ground.
3. Alternative ground. Even if the complaint should have been considered, section 31(2A) of the Senior Courts Act 1981 justified refusal of relief. The statutory threshold was high, but the court considered it highly likely that the result would have been the same. The Tomlin Order was sufficiently broad, the OIA’s assessment of the proposed reopening was not Wednesbury unreasonable, and the OIA had identified independent reasons why reopening was not justified.
4. The judicial review claim was dismissed.