R Sandhar v Office of the Independent Adjudicator for Higher Education and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lady Justice Black,Sir David Keene |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1614 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2011 |
| Docket Number | Case No: C1/2011/0511 |
[2011] EWCA Civ 1614
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR DAVID HOLGATE QC (Sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lady Justice Black
and
The Right Honourable Sir David Keene
Case No: C1/2011/0511
Mr Michael Beloff QC & Ms G White (instructed by Balsara & Co Solicitors) for the Appellant
Mr Sam Grodzinski QC (instructed by E J Winter & Son LLP & Mills & Reeve LLP) for the Respondents
Hearing dates: 22 nd November 2011
Introduction
This appeal (pursued with the permission of Arden LJ) from previous refusals of permission to apply for judicial review raises the question whether the Office of the Independent Adjudicator for Higher Education ("OIA") is appropriately independent for the purpose of dealing with students' complaints in relation to their examination results. It also raises the question whether, if it is independent, the OIA should in the present case have adopted an emergency procedure and thus enabled Mr Sandhar, a final year medical student, to take up junior doctor positions which he had been offered or should now be required to proceed to a "full merits" oral hearing.
The question of OIA's independence is a question which is logically prior to any question relating to the procedures adopted (or not adopted) by the OIA. It is difficult to see how Mr Sandhar could benefit from any decision in his favour since, if this court decides that the OIA is not an independent body, any decision made to date will have to be set aside and Mr Sandhar will have no redress save for a singularly unpromising application (now in any event well out of time) for permission to review the decision of the university examiners not to award him a degree. Mr Beloff QC explained on his behalf that, since it could not be taken for granted that his other complaints about the procedures of the OIA would succeed, it would be some consolation for Mr Sandhar if the court decided that the OIA was not an independent tribunal on the basis that some other adjudicative procedure would have to be put in place which would then be available for other students, even if it would be too late to be of any benefit to him.
I must confess to some doubts whether that is a proper basis for an application for judicial review but I have swallowed those doubts on the basis (1) that the question of the OIA's independence is not a question which will go away (it has already been the subject of an obiter pronouncement by Mr C.M.G. Ockelton sitting as a deputy High Court Judge of the Administrative Court in Budd v OIA [2010] EWHC 1056 (Admin)) and (2) that, if an aggrieved student cannot take the point, it is difficult to see who can.
In these circumstances the court has decided that all aspects of the case are sufficiently substantial to warrant the grant of permission to apply for judicial review and we now proceed to decide the substantive judicial review application. We are acutely aware that in R (Siborurema) v OIA [2007] EWCA Civ 1365, which established that the OIA was in law amenable to judicial review, both Moore-Bick and Richards LJJ envisaged (paras 70 and 74) few cases could be expected to get through the permission filter, let alone succeed. But this case, like that case, does raise issues of general principle.
It is necessary, however, first to set out the factual background.
Facts
In September 2002 Mr Sandhar began a MBChB degree at Manchester University and successfully completed year 1 for the academic year 2002–3. In year 2 he failed Semesters 3 and 4 and failed re-sits in respect of those Semesters. In the academic year 2004–5, he took year 2 again and passed Semesters 3 and 4. In the academic years 2005–6 and 2006–7 (years 3 and 4) he progressed normally passing the requirements for those years.
In June 2008 Mr Sandhar failed two elements of the Final Examinations for year 5. He was referred to the University's "Progress Committee". Before the Committee met, Mr Sandhar appealed against his examination results on the basis of mitigating circumstances, namely the death of his uncle and his mother having to travel to India leaving Mr Sandhar to look after his grandparents. He contended that he should be deemed to have past his Final Examinations. The Progress Committee decided that he could not be deemed to have qualified but that he should be allowed to re-sit the final exams in October 2008, or preferably May 2009 after repeating year 5.
On 28 th July 2008 the University Faculty told Mr Sandhar that his appeal against his examination result had been dismissed, but that the opportunity to re-sit in October 2008 or May 2009 still stood. Mr Sandhar appealed this decision to the Registrar of the University, but this appeal was also dismissed.
In May 2009 he re-sat the two Final papers he had failed previously and failed both papers again. He was informed that he had been excluded from the MBChB programme as a consequence.
On 25 th June 2009 he appealed against the decision to exclude him, on grounds of mitigating circumstances namely, anxiety caused by the previous year's appeal and the illness and then death of his grandmother; and on grounds of alleged procedural irregularities in the assessment process.
On 7 th July 2009 the University Faculty allowed Mr Sandhar's appeal in part; it revoked his exclusion from the degree programme and confirmed that he was entitled to repeat year 5 (for a second time) and re-sit all elements of the Final Examinations in May 2010. Mr Sandhar has not availed himself to this offer and has never retaken year 5 or re-sat his Final Examinations.
On 8 th August 2009 he appealed the Faculty's decision to the Registrar, claiming that he should be awarded the MBChB degree without retaking year 5 or re-sitting any of the papers he had failed. He relied in particular on his mitigating circumstances and he again complained that the correct procedures had not been followed.
On 2 nd September 2009 the University completed its internal appeal procedures and decided that the Faculty's decision to revoke Mr Sandhar's exclusion and to allow him to retake year 5 and all elements of his Final Exams was reasonable. It accordingly dismissed his appeal but alerted him to the potential route of a complaint to the Office of the Independent Adjudicator for Higher Education ("the OIA").
On 27 th October 2009 Mr Sandhar submitted a complaint to the OIA requiring an "emergency remedy from the OIA for specific performance of the contract", seeking a declaration and injunction requiring the University to award Mr Sandhar his degree, and asking for a "full merit review, oral hearing and fast track".
On 18 th November 2009 Ms Anne Lee, the Adjudication Manager at OIA, wrote to Mr Sandhar explaining:-
i) The remedies he sought requiring the University to award him a degree could not be given by the OIA, because they were matters of academic judgment;
ii) In response to his request for a full merits review, she explained that "The nature and extent of the review is for the case handler at the OIA to decide";
iii) In response to his request for an "emergency remedy" she explained "I have assessed your case as requiring the full, more extensive procedure so that I will need to obtain a full response from the University";
iv) In response to Mr Sandhar's request for an oral hearing, she explained that "I will assess the question of whether it is necessary to hold an oral hearing, in order to undertake a full and fair review of your complaint, once I have the University's representations".
In December 2009 the University submitted its representations to the OIA, defending its position in full.
On the 12 th January 2010 the OIA sent the University's representations to Mr Sandhar, inviting his comments by 9 th February 2010. He has never provided his comments on the University's representations.
Instead on 22 nd January 2010 his solicitors write a first pre-Action Protocol ("PAP") letter, challenging the decision of 18 th November 2009 not to decide his complaint on an "emergency" or expedited basis.
On 26 th January 2010 his solicitors wrote a second PAP letter, challenging the alleged failure to deal with the request for the oral hearing and full merits review.
On the 2 nd February 2010 the OIA responded to the letters, explaining why the grounds of challenge were, in its view, misconceived. The letter also indicated that the OIA was still awaiting comments from Mr Sandhar on the University's submissions and that, once these had been received, a draft decision could be made about the substantive complaint to the OIA.
On the 10 th March 2010 the OIA sent a further letter noting that Mr Sandhar had still not provided comments on the University's submissions and said that, on the assumption he had nothing further to say, a decision would be made on the material which they had as soon as possible. This elicited a reply from Mr Sandhar's solicitors saying that the OIA should not proceed to issue a decision. OIA then agreed to suspend their consideration of the decision.
On 23 rd April Mr Sandhar's solicitors wrote a 3 rd PAP letter challenging OIA's independence and on 30 th April 2010 they issued judicial review proceedings asking for a full merits review and an oral...
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