R (Arun Nair) v Office of the Independent Adjudicator
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURNETT |
| Judgment Date | 01 July 2008 |
| Neutral Citation | [2008] EWHC 1989 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 July 2008 |
| Docket Number | CO/10705/2007 |
[2008] EWHC 1989 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Burnett
CO/10705/2007
Mr James Neill (instructed by Messrs AP Law) appeared on behalf of the Claimant
Mr Sam Grodinski (instructed by the Office of the Independent Adjudicator) appeared on behalf of the Defendant
Mr Nair, the claimant, performed extremely well at school and secured himself a place at the University of Leicester to read medicine. He started a five year course in September 2005 but, for reasons which I shall elaborate in a moment, he foundered at the end of his first year. Despite utilising the university's internal appeals process and also the review available to him through the defendant, the Office of the Independent Adjudicator, he has not been able to recommence that course. It is the decision of the Independent Adjudicator dated 30th August 2007 that he seeks to challenge.
The background, which I gratefully take from the decision letter of Lady Deech, dated 30th August 2007, which is in issue, is as follows. In the first year of the claimant's course he was required to take five modules in semester 1, five modules in semester 2 and then an Integrated Medical Sciences Assessment in two parts, together with an objective structured clinical and practical examination. A student who receives a grade of unsatisfactory in two or more units is required to undertake a qualifying examination. A student who does not pass the qualifying examination must undertake a short oral viva voce examination. A student who is unsuccessful in that viva examination will have his registration terminated.
At the end of the first semester, Mr Nair had received grades of “satisfactory” in two modules, “borderline satisfactory” in two modules and “unsatisfactory” in one module. By the end of the second semester, he had achieved a further “satisfactory grade” in one module, “borderline satisfactory” grades in one module and in the practical examination and “unsatisfactory” grades in three modules and in the integrated medical sciences assessment. Since he had received unsatisfactory grades in four modules and the IMSA, he was required to sit the written qualifying examination on 31st July 2006 and also a practical element on 1st August. Unfortunately, Mr Nair did not pass that qualifying examination. He was invited to a viva voce which took place on 11th August but there too he was unsuccessful and so it was that, on 14th August, Mr Nair was told that he had failed and he would be withdrawn from the course.
The first level of appeal within the University is to the Academic Progress Committee. That committee met on 1st September with Mr Nair in attendance. He explained that a few days before his semester 2 examinations he had been informed that his grandmother, who lives in India and who had played a significant part in his upbringing, was seriously ill. That disrupted his preparation for examinations and impacted on the result.
The Academic Progress Committee wrote on 4th September 2006 and determined that the mitigating circumstances were not sufficient to explain the underperformance in the course. By that time Mr Nair had discussed the failure with his mentor, who is a consultant at the Royal Free and, as a result of discussions that they had, an educational psychologist was instructed and produced reports on Mr Nair.
On 2nd September, Mr Nair submitted an appeal against the decision of the Academic Progress Committee to the Determination of Registration Committee; that is essentially a second tier within the university hierarchy. His appeal was substantially based upon new evidence, namely that from an educational psychologist which drew attention to the fact that Mr Nair suffers from mild dyslexia. At that time only an interim or preparatory report was available. A further report was in due course provided, which, whilst longer, essentially made the same points. Mr Nair again drew attention to the fact of his grandmother's illness and the impact that that had not only on him but on other members of his family. He attended the Committee's hearing on 19th September. On 20th September, the Committee notified Mr Nair that the new information was not of sufficient substance to lead them to interfere with the conclusion of the Academic Progress Committee.
Matters continued with considerable correspondence between Mr Nair on the one hand and representatives of the university on the other. In due course, Mr Nair completed an application form for a review to the Office of the Independent Adjudicator (“OIA”). That was received on 20th December 2006. It is the rejection of this complaint in a decision of Lady Deech, dated 30th August 2007, that is the subject matter of this renewed application for permission to apply for judicial review.
The OIA is a relatively new statutory creation that was in part designed to replace the ad hoc visitorial jurisdiction that existed in many universities and similar institutions. The legislation that governs its operation is the Higher Education Act 2004. By schedule 2 of that Act, paragraph 5, the OIA is required to make a decision whether a qualifying complaint is justified. The legislation makes it plain that the OIA is not to review matters of academic judgment. The OIA has its own rules which set out the nature of its approach to the complaints scheme and many of those rules simply reflect the statutory language found in the material parts of the Act. Of relevance for the purposes of Mr Nair's application are rule 6(1), which provides that the reviewer will carry out a review of the complaint to decide whether it is justified in whole or in part; and also rule 7(3), which provides that in deciding whether a complaint is justified the reviewer may consider whether or not the HEI properly applied its regulations and followed its procedures and whether or not a decision made by the HEI was reasonable in all the circumstances.
As I have indicated, the OIA is a relatively new creation and, although it undertakes some hundreds of reviews a year, the possibility of and circumstances in which its decisions may be the subject of judicial review have only recently been considered in the courts. Indeed, the matter has really only been authoritively determined since the pleadings in this application were lodged. The OIA, for reasons which one understands, was, through its chairman Lady Deech, extremely concerned that if too legalistic approach were grafted on to its review jurisdiction it would be entirely counter-productive to its...
To continue reading
Request your trial