R Sarah Zahid v The University of Manchester The Office of the Independent Adjudicator for Higher Education (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 10 February 2017 |
| Neutral Citation | [2017] EWHC 188 (Admin) |
| Docket Number | Case Nos CO/4165/2016, CO/5087/2016 & CO/6456/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 February 2017 |
[2017] EWHC 188 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Mr Justice Hickinbottom
Case Nos CO/4165/2016, CO/5087/2016 & CO/6456/2016
and
and
and
David Lawson (instructed by Sinclairslaw) for the Claimants
Tom Cross (instructed by Office of the General Counsel, The University of Manchester) for The University of Manchester
Aileen McColgan (instructed by Gateley PLC) for St George's, University of London and The University of Leicester
The Interested Party was not represented and did not appear
Hearing date: 24 January 2017
Further written submissions: 3–6 February 2015
Approved Judgment
Introduction
Where a student has a complaint against his or her university or college, and has exhausted the internal complaints mechanism of that higher education institution ("HEI"), he or she can refer the matter to the Office of the Independent Adjudicator for Higher Education ("the OIA") which operates a students' complaints scheme, under which it can review the complaint and determine whether it is wholly or partly justified. If it is justified, the OIA is able to make appropriate recommendations to the relevant HEI.
In the claims before me, each of the Claimants has made a reference to the OIA; but has also sought judicial review of the decision of the HEI in respect of which complaint has been made. In each case, the Claimant seeks a stay of the judicial proceedings to allow the reference to the OIA to run its course, because each recognises that, depending upon the outcome, the OIA procedure may in practice make any claim in this court redundant. A stay is of particular importance because, where there are court proceedings in relation to the same subject matter that are not stayed, the OIA is proscribed from considering a complaint.
The University of Manchester agrees to a stay in the claim against it; but the other two Defendants object in the claims brought against them. On 29 December 2016, Cranston J directed that the three applications be heard together, as "no clear practice has been established", and "the Court, the parties (including parties bringing similar claims in the future) and the OIA would benefit from definitive guidance on what procedure should apply".
At the hearing before me, David Lawson appeared for the Claimants, Tom Cross for the University of Manchester, and Aileen McColgan for the other two Defendants. At the outset, I thank all for their contribution. Whilst the OIA did not appear at the hearing, it lodged written representations which helpfully outline the legal framework under which it operates.
Student Complaints
For students, the completion of their education is important. They pay significant sums for their higher education – currently £9,250 per annum for home students, and significantly more for overseas students – for several years. Medical and PhD students, for example, can expect to study for at least five years. Furthermore, for students who fail to complete a course, that can result in a loss of job opportunities and thus life-time income, particularly for those pursuing professional or vocational courses.
The legal relationship between a student and his or her HEI is complex, and has been described as "hybrid… governed partly by contract and partly by the principles of public law enforceable by way of judicial review" (R McManus, Education and the Courts (3rd Edition) (2012) at paragraph 8.7).
In addition, an HEI has various obligations imposed upon it by the Equality Act 2010 ("the Equality Act"), notably the broad prohibition of discrimination against a student on grounds of disability. Section 6 defines "disability" as follows:
"A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."
Section 15 of the Act provides that:
"(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."
Section 91 specifically prohibits HEIs from discriminating against a student, in the following terms:
"(2) The responsible body of [an HEI] must not discriminate against a student –
(a) in the way it provides education for the student;
(b) in the way it affords access to a benefit, facility or service;
(c) by not providing education for the student;
(d) by not affording the student access to a benefit, facility or service;
(e) by excluding the student; or
(f) by subjecting the student to any other detriment.
(3) The responsible body of such an institution must not discriminate against a disabled person –
(a) in the arrangements it makes for deciding upon whom to confer qualifications;
(b) as to the terms on which it is prepared to confer a qualification on the person;
(c) by not conferring a qualification on the person; or
(d) by withdrawing a qualification from the person or varying the terms on which a person holds it."
Where a person is disabled, his or her HEI has a duty to make reasonable adjustments (section 91(9)).
The complexity of the relationship between an HEI and student is compounded in the case of medical students, who are likely to have contact with patients early in their course, increasing until, in their fifth year, they may have responsibility for patient care – albeit, of course, subject to supervision.
Guidance in relation to the obligations of an HEI for its medical students has been issued by the General Medical Council ("the GMC"), from September 2016 in the form of a document, "Professional behaviour and fitness to practise" ("the GMC Guidance"), which replaced earlier guidance, "Medical students: professional values and fitness to practise" which, for the purposes of this claim, was in similar substantive terms. The GMC Guidance emphasises that the relevant HEI is responsible for its students' fitness to practise ("FtP") medicine during the period of the relevant course; that medical graduation amounts to a declaration by the HEI that the student is fit to practice medicine (paragraph 17); and that, in the event of allegations of unfitness to practise being made against their students during Years F1 and F2 (the first two years of medical practice), the HEI remains responsible for investigating and otherwise dealing with such allegations. The possible reasons for FtP being impaired for students are listed by reference to those for fully qualified members of the profession (table 1 page 41, referring to section 35C(2) of the Medical Act 1983).
The GMC Guidance suggests that HEIs should consider appointing a student and someone with legal knowledge to its FtP panels (paragraph 116); and there is guidance on fair procedure including that (i) "all parties have an equal opportunity to present evidence" (paragraph 118), (ii) students are encouraged to have a supporter or legal representative at the hearing (paragraph 119) and (iii) student representatives should have the opportunity to ask questions of witnesses (paragraph 121).
It is said that, where sanctions are considered appropriate, they should not be designed to punish (paragraph 125); and the panel should start with consideration of the least serious sanction, giving reasons for rejecting a less a severe sanction than that imposed (paragraphs 126–127), students only being expelled if that is the only way to protect the public. Expelled students, it is said, should be added to the "excluded student database" (paragraph 145), so that other HEIs offering medical degrees and other relevant courses are aware of the decision. Expulsion on the basis that a student is not fit to practise medicine may therefore result in a permanent exclusion from the opportunity of entering the medical profession, at least in the UK.
Thus, a decision by an HEI in relation to a medical student may have a particularly profound impact on that student's future; and may be more likely to draw a challenge, by way of complaint or legal proceedings. It is no coincidence that, at the time of the events that provoked the HEI decision about which complaint is made, each of the Claimants was a medical student.
Where a student is dissatisfied with a decision of an HEI, there are a number of courses open. He or she may complain to the HEI; and, if dissatisfied with the result of that complaint, refer the matter to the OIA. I consider that procedure in more detail below (see paragraphs 23 and following). In appropriate cases, the student also has the option of making a claim against the HEI in contract or for discrimination under the Equality Act, usually brought in the county court; or by way of judicial review in the Administrative Court. In this context, this court has accepted a wide range of HEI decisions affecting students as being justiciable by way of judicial review, including – as we know as a result of Mr...
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