KT, R (on the application of) v Office of the Independent Adjudicator

A complaint outcome issued by the Office of the Independent Adjudicator is a discrete decision on the merits, distinct from later recommendations. A claimant cannot ordinarily use a challenge to final recommendations as a vehicle for an out-of-time challenge to that outcome.

Where an ombudsman-like body receives materially significant representations from one party which lead it to alter proposed recommendations adversely to the other, procedural fairness will generally require disclosure of the representations, or their gist, and an opportunity to comment. The duty is context-specific and does not arise for immaterial changes.

The claimant, a university student, challenged decisions of the Office of the Independent Adjudicator concerning his complaint about disciplinary proceedings that had resulted in his expulsion. The OIA found the complaint partly justified because the University had not adequately explained the severity of the penalty and issued proposed recommendations.

After the University stated that the claimant’s police bail conditions made the proposed recommendations impracticable, the OIA issued materially different final recommendations without giving the claimant an opportunity to comment. The claimant challenged the OIA’s handling of the outcome decision, its refusal to continue the review, the procedural fairness of the process, and the final recommendations.

1. First challenge dismissed. The OIA’s outcome decision was a discrete merits decision under the Scheme Rules, distinct from the final recommendations. The fact that the review as a whole continued until final recommendations were issued did not permit the claimant to challenge the outcome decision through a challenge to those recommendations. The applications to amend to challenge the outcome decision and the continuation decision were refused because of substantial delay, inadequate explanation, and insufficient procedural rigour.
2. The proposed challenge to the OIA’s treatment of the SDC chair issue was strongly arguable. Once the OIA chose expressly to address that issue, it was required to deal with it properly and give adequate reasons. That conclusion did not justify extending time in the circumstances.
3. Second challenge partly succeeded. Information about the claimant’s previous disciplinary proceedings had not materially affected the result and did not require a further opportunity to comment.
4. Third challenge dismissed. Properly construed, the final recommendations required the Appeals Committee to allow the appeal for procedural error and make its own decision on the appropriate penalty. It had to consider mitigation and decide whether further representations were necessary. The OIA was rationally entitled to replace the proposed recommendations because the claimant’s bail conditions made them unworkable. Proposed recommendations were provisional and did not create a right or legitimate expectation requiring detailed justification for every departure.
5. Nevertheless, the OIA acted unfairly by relying on the University’s materially significant representations about the bail conditions without giving the claimant the representations, or their gist, and an opportunity to comment. The OIA was acting in a dispute-resolution capacity, and the representations struck at the core of the proposed recommendations. It was not highly likely that the outcome would have been substantially the same, so Senior Courts Act 1981, s 31(2A), did not require refusal of a remedy.
6. The final recommendations were quashed. No declaration or mandatory order was necessary. The OIA was to resume its decision-making lawfully. The OIA was ordered to pay 25% of the claimant’s costs.

First instance judicial review decision. No prior appellate decision was stated in the judgment.