Burger v The office of the Independent Adjudicator for Higher Education The London School of Economics (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,Lady Justice Sharp,The Chancellor of the High Court |
| Judgment Date | 23 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1803 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2013 |
| Docket Number | C1/2013/0469 |
[2013] EWCA Civ 1803
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
The Chancellor of the High Court
Lady Justice Hallett
Lady Justice Sharp
C1/2013/0469
and
Mr P Greatorex appeared on behalf of the Appellant
Ms A McColgan appeared on behalf of the Respondent
Background
The appellant was a student at the London School of Economics from approximately 2007 to 2009, hoping ultimately to achieve a PhD in economics. Year one comprised three core courses and the appellant failed two of them, EC 442 and EC 443, at his first attempt. The following year he passed EC 442 and did well in some aspects of the course but he again failed EC 443. This meant that he was unable to progress to his PhD.
He first raised concerns about the two core courses with his Head of Economics. He then lodged a formal complaint in a letter dated 27 July 2009 to a Mr Adrian Hall of the London School of Economics ("LSE"), which is before us as an interested party. His letter consisted of nine pages of detailed criticisms but he helpfully provided what he described as a brief summary of his complaints. They came under three/four main headings:
a. That the courses EC 442 and 443 did not cover the material which was actually assessed in the final exams.
b. That there was a failure to communicate the marking scheme for the final exam to the class teachers so that they were able to prepare their students appropriately for the exam and
c. There had been the use of an inappropriate marking scheme for EC 442.
He also complained that the teachers had not been in a position to communicate their expectations to their students.
At that time the complaint did not make any express reference to the failure of the Economics department to publish assessment criteria for the examination as provided in paragraph 6.1 of the LSE's instructions for examiners. However, it is this failure which has featured prominently in this appeal and I shall therefore rehearse its contents.
Under the heading "Duties and Responsibilities of the Chair of the Sub-board of Examiners" paragraph 6.1 states that one of the duties of the Chair is to ensure that the department produces and publishes assessment criteria in line with the school's requirements. We are told that the interested party defines assessment criteria as:
a. "Verbal descriptors of what a department expects of students which distinguish between different grades."
The interested party's investigator held meetings with various people and systematically considered and rejected each of the complaints. She concluded overall that:
a. The courses EC 442 and 443 did prepare students fully and fairly for their final exams and
b. The marking system was appropriate and fair and the student had been given sufficient information by means of mock exams and problem setting.
She recommended rejection of the complaint.
The appellant declared his intention to appeal, asking the University that he be allowed to take the new EC 442 course and be reassessed. Throughout this appears to have been his objective.
By a letter dated 12 January 2010 the LSE rejected his appeal. Nothing daunted, the appellant complained to the respondent, the Office of the Independent Adjudicator for Higher Education. The respondent is designated as the operator of a student complaints scheme under sections 11 to 14 of the Higher Education Act 2004. The respondent's rules provide where relevant that:
a. The main purpose of the scheme is the review of unresolved complaints by students about acts and omissions of higher education institutions and the making of recommendations.
b. The scheme does not cover a complaint to the extent that it relates to a matter of academic judgment or, in the opinion of the reviewer the matter complained of does not materially affect the complainant as a student.
c. A complainant must first have exhausted the internal complaints procedures of the higher education institution about which complaint is made before bringing a complaint to the respondent.
d. In exceptional circumstances a reviewer may accept a complaint for review even if the internal complaints procedures have not been exhausted if he or she considers it appropriate.
The appellant's appeal to the OIA consisted of a letter of some 41 pages. In summary, it was a generalised complaint about the quality of the investigation conducted by LSE but most importantly he complained about the alleged failure to prepare students for the examination he had sat properly, for poor teaching and about the fairness of the marking scheme. He described his "key complaint" to be the fact that the courses and mock exams failed to prepare students properly for the final exam. In this letter he added a criticism that at no time did lecturers inform students about their assessment criteria or the marking schemes applied to the final exam. The tenor of his remarks was that failure to inform students about the marking schemes and the assessment criteria benefited students who had prior experience of them.
He did not, however, expressly complain of any alleged failure to publish assessment criteria, using the term as a term of art within paragraph 6.1(b) of the examination instructions. He demanded that all of the students that took the course and exams in EC 443 that year should have their marks increased as compensation for the "violation" of the regulations and he sought a reassessment of his own grades in the EC 442 paper.
On behalf of the respondent, a deputy adjudicator, conducted an investigation. She had considerable discretion under the rules of the scheme. Amongst other findings she made adverse to the appellant she concluded that there was no obligation upon the examiners to publish assessment criteria to the students.
By letter dated 21 March 2011 the OIA sent the appellant a draft formal decision for his comments. He responded very promptly, for the most part reiterating his previous complaints but also disagreeing with the deputy adjudicator's interpretation of paragraph 6.1(b) of the examination instructions.
By letter dated 6 May 2011 the OIA rejected the complaint in a formal decision and refused to revisit its interpretation of paragraph 6.1.
Judicial Review
The appellant wrote a pre-action protocol letter focusing on the failure to publish assessment criteria and the unfairness of his treatment. He sought permission judicially to review their decision acting as a litigant in person. He sought by way of remedy a quashing of the OIA's decision, a mandatory order instructing the OIA to take into account the effect upon him of the LSE's failure to publish assessment criteria in accordance with 6.1(b) and to set "problem sets and mock exam questions that materially prepare for the final exam" and an injunction preventing OIA's continued wrong doing. He also sought damages, if available.
In a more detailed statement of grounds he set out his complaints under the following headings.
Error of law. He argued that the deputy adjudicator failed to acknowledge the department was duty bound to publish assessment criteria.
Unreasonableness, procedural unfairness and failure to take into account relevant factors coupled with consideration of irrelevant factors. He argued that the OIA wrongly accepted the LSE's claim that the information provided to students was sufficient to prepare them for the examination and suggested the OIA must have ignored relevant material.
He also accused the OIA of bias. This ground is no longer pursued.
The appellant was given permission by Holman J to bring judicial review on very limited grounds. At the time the matter was before him there was some confusion over the nature and extent of the assessment criteria referred to in rule 6.1(b). Holman J was led to believe by Mr Burger that knowledge of the assessment criteria might well be of benefit to candidates because they include information about those parts of the syllabus upon which the examinations would be held. Troubled by this possibility, Holman J gave permission for judicial review on two bases:
a. Whether the deputy adjudicator was in error when she said at paragraph 22 of her decision:
i. "I do not consider that paragraph 6.1 of the instructions goes as far as to dictate that the assessment criteria or marking schemes is to be disclosed to students in advance of examination."
b. Whether the interested party was in breach of its own instructions and rules by not publishing assessment criteria for examination EC 442 in a form that was available to the claimant as a student in advance of his taking that examination.
The substantive application came on before Mostyn J. He had the benefit not only of a description of what assessment criteria were, namely "grade descriptors", but also the assessment criteria published by two other departments at the LSE. He described the assessment criteria as "banal and statements of the obvious". Both the appellant and counsel for the OIA appeared to agree. I give two examples. For a "fail" in the department of political sociology, this is the descriptor:
a. "The essay shows limited understanding of the subject and lacks evidence of any independent response to the question. It may be based...
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