Budd v Office of the Independent Adjudicator for Higher Education
| Jurisdiction | England & Wales |
| Judge | Mr C. M. G. Ockelton |
| Judgment Date | 12 May 2010 |
| Neutral Citation | [2010] EWHC 1056 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6521/2009 |
| Date | 12 May 2010 |
[2010] EWHC 1056 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : MR C. M. G. OCKELTON
(sitting as a deputy High Court Judge)
Case No: CO/6521/2009
Gregory Jones and Annabel Graham Paul (instructed by AP Law) for the claimant
Sam Grodzinski (instructed by E. J. Winter and Son, Reading) for the defendant
Hearing dates: 23–24 March 2010
Crown Copyright©
Mr C. M. G. Ockelton :
Introduction
Mr Stephen Budd, the claimant, took the course W300, Agreements, Rights and Responsibilities, as part of his Open University (OU) Law degree. There were assessments during the course, and an unseen written examination at the end of it. He obtained high marks in his assessments, but when the results of the written examination became available in December 2007, he found that he had been awarded an overall examination score of 50%. He has found it difficult to accept that mark, because he expected a higher one. He took the matter up with the OU, first simply by querying the result, and then by invoking the formal appeals procedure. When the OU did not uphold his appeal, he made a complaint to the Office of the Independent Adjudicator for Higher Education (OIA), the defendant. In a decision made on 25 March 2009, the OIA rejected Mr Budd's complaint.
Mr Budd now brings these proceedings for judicial review, challenging the OIA's decision. The OU is joined as an interested party.
The essence of Mr Budd's complaint to the OU was that he had written a good script, and that something must have gone wrong in the marking process. Either the script had been marked badly, for example by the examiner missing, and failing to give credit for, good points that he had made; or the marks had at some stage been wrongly entered or transcribed; or perhaps the script attributed to him had not been his at all. These proceedings are not concerned to resolve those issues. But the terms of the original appeal to the OU form the background to these proceedings, because the complaint to the OIA related to the way in which the OU dealt with the appeal, and these proceedings are concerned with the OIA's investigation into the OU's process. In brief, the claim is that the OIA did not adopt the procedure that it should have adopted in assessing whether the precise issues raised by Mr Budd had been properly dealt with by the OU.
The Proceedings
(i)The original claim
The Claim Form was filed on 24 June 2009. The remedies sought are listed as follows:
“1. A declaration that the OIA's formal decision of 25 March 2009 is unlawful.
2. An order quashing that decision.
3. An order requiring the OIA to conduct a full merits review.”
In the detailed statement of grounds, the claimant raised six issues. The first is headed “Procedural Unfairness”. The crucial part of it is an assertion that “no reasonable review body could reach an informed decision on the complaint lodged without checking the script for procedural irregularities”. In other words, the OIA should have called for the script and looked at it. That assertion is said to be supported by the following. The report of the Examination and Assessment Board (EAB) showed that, of the four questions attempted by the claimant, three had been marked at 45%. It was inherently unlikely that he would have scored identical marks in three questions, and so the very fact of the three identical marks raised questions about whether those were indeed the marks awarded on the script, whether they had been correctly transcribed, and whether the EAB had made the checks it should have done. Ground 5, which is headed “Irrationality”, contends that the OIA's decision not to call for and consider the script itself was irrational.
Ground 2 is that the OIA failed to take account of a relevant consideration, in that the list of documents considered by it does not include the minutes of the EAB.
The claimant's third ground for review is that the OIA had failed to consider whether to conduct a “full merits review”. Not merely had it failed to exercise its discretion: it appeared to have fettered its discretion by a policy that it would only consider “whether the University has followed its own procedures correctly and whether any decision made by the University was reasonable in all the circumstances”. The fourth ground is that the OIA breached the right to a fair hearing, secured by Article 6 of the European Convention on Human Rights, in declining to hold an oral hearing of the claimant's complaint. This ground asserts that the small number of oral hearings held by the OIA suggests that on this issue too the OIA has adopted a policy fettering its discretion.
The sixth and final ground is that, in accordance with assurances given to Parliament, the OIA should provide a “transparent means of redress” for student complaints. The ground is as follows:
“The claimant asserts that transparency depends on disclosure of material relevant to the complaint. As he has set out above, he has been denied access to arguably the most important document: the marked examination script. Consequently, the claimant contends that the OIA's omission was contrary to the will of Parliament.”
I have added the emphasis and it as well at this stage to note also that the precise terms of ground 1, which I have summarised above, are that “the OIA refused to disclose the marked examination script attributed to him during their review”.
The claimant was acting in person when he submitted the claim form and he drafted the grounds himself. There is no doubt in my mind that he intended to plead both that the OIA should have called for the script, because they could not assess his complaint without it, and that they should have disclosed it to him, in order to show what the course of their investigation had been. The latter claim is clearly made in ground 6. The former is made in essence in ground 1, but the sentence I have quoted from that ground perhaps should have been in terms that the OU refused to disclose the script to the OIA during the OIA's review. Because complex grounds on a complex matter were prepared by a claimant acting in person, and because of subsequent developments in these proceedings, I am particularly concerned to ensure that I have properly taken account of every point that the claimant indicated that he wished to pursue. Despite the infelicity to which I have alluded, there is no doubt that the key complaint is that the OIA should have called for the script. There is, as it happens, nothing in the additional point about disclosure to the claimant, because the OIA's procedure is to make available to the complainant documents it has considered in the course of its review. If they had considered the script, they would have disclosed it to the claimant.
Permission to apply for judicial review was granted by HHJ Langan QC, sitting as a deputy judge of this Court on 25 August 2009. He said this:
“Almost all of what the claimant has said seems to me to be unarguable: e.g. the points made about failure to double-mark, or marking by the Examining Board itself, or failure to hold an oral hearing. He has, however, raised one question on which I regard him as having an arguable case: and the question may, in any event, be one of general importance. This is whether the defendant's decision is undermined by reason of its failure to call for the examination script – not, of course, for the purpose of reviewing matters of academic judgment, but simply to make sure that the script gives the appearance of having been properly marked and to make sure that [there] were no errors in matters such as addition and transcription of marks. Looking at the script might be regarded as essential where, as in this case, there was such a great disparity between the marks awarded for coursework and marks awarded on the examination paper.”
(ii) Renewal
The claimant, now fully represented, gave notice of the intention to renew his application orally. The grounds for renewal refer in terms only to ground 3, but in substance to grounds 3 and 4. Those are the grounds that the OIA fettered its discretion to hold a “full merits review” or an oral hearing. The grounds suggest that the substantive application and the renewal be dealt with together, and that there be a “rolled up” hearing on the renewed grounds; that is to say, that the substantive hearing on those grounds follow immediately, if permission be granted. There was no order for a rolled up hearing, but as I understand it the parties prepared for the hearing on 23–24 March on the basis that that was what it would be.
(iii) Further grounds?
About two weeks before the hearing, the claimant filed further witness statements, and on the eve of the hearing indicated that he might seek to pursue a number of other matters, essentially that the decision under review is rendered unlawful by a failure of independence in the OIA itself. In connection with that, the claimant anticipated the need to seek disclosure of certain documents, and to obtain leave to amend the grounds for review in order to add a further ground about independence. The claimant's suggestion, made in a supplementary skeleton argument, was that if pursued these matters should be dealt with by way of mention at the end of the hearing, because the claimant would only want to pursue them if his claim on other grounds was unsuccessful. The defendant's position was that they should not be...
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