R (Siborurema) v Office of the Independent Adjudicator for Higher Education
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 24 November 2006 |
| Neutral Citation | [2006] EWHC 3170 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1978/2006 |
| Date | 24 November 2006 |
[2006] EWHC 3170 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Mitting
CO/1978/2006
MR GREGORY JONES appeared on behalf of the CLAIMANT
MR CLIVE LEWIS QC appeared on behalf of the DEFENDANT
In September 2003, the claimant enrolled in a three year diploma in nursing at London South Bank University. He was required to sit a number of exams. He failed his first attempt at biology, psychology and sociology in June 2004 and, again, in August 2004. He resat those exams for a third time, passing biology but failing psychology and sociology in October 2004. He resat the psychology and sociology exams for a fourth and final time on 16th March 2005 and failed again. As a result, the University required him to withdraw from the nursing course.
He complained to the board of the University through its internal complaints procedure. The board rejected his claim that he should be allowed to sit the exam again, essentially on the ground that he had failed to comply with its own rules that mitigating circumstances explaining an academic failure should be put before the University before the results of the exam were notified and not, as here, afterwards and because he failed to submit supporting documentation, again in accordance with the internal university rule contained in the student handbook.
He complained to the Office of the Independent Adjudicator for Higher Education. That office first of all considered his complaint on a provisional basis at the level of the liaison officer, Isobel Brown. She, on 27th July 2005, expressed the view that his complaint was not justified but that view was only preliminary and so the matter proceeded to final determination. On 7th December 2005, Mr Reddy, the Deputy Adjudicator and Chief Executive, notified the complainant that the Office was satisfied that the complaint was not justified in these terms:
"I am in receipt of your letters of 16th September and 23rd September 2005. Having reviewed the file and taken into account further information provided by the University, I do not consider that it would serve any purpose to investigate your complaint further. This is because I consider the University's decision to be reasonable in the circumstances and that they had followed their procedures.
Regulation 11.6.2 stated that if a student has three failures on a second submission the student will normally be required to repeat the year with attendance. We note that the University did consider offering Mr Siborurema the opportunity to repeat the year with attendance but it was considered to be more appropriate to allow him to resit the exams with tutorial support. Furthermore, although Mr Siborurem said that he was unaware of the published date of submitting mitigating circumstances, the University did consider these and we consider it reasonable that the University came to its decision that these were invalid because no medical evidence was supplied in support of considering his claim.
Accordingly, you should regard this letter as our formal decision that this complaint was not justified."
The reference in the first of the two paragraphs to, regulation 11.6.2, was a reference to a matter that was raised for the first time in correspondence between the claimant's solicitors and the Office. It had not been the subject of a complaint to the University itself. It arose because the University's usual procedure was that, where the student sat exams on a fourth occasion, he would normally be required to repeat the unit "with attendance", in other words attendance at lectures. In fact, to save him the lecture fees, the University prescribed that he should resit the unit with tutorial assistance.
The statutory background to this decision-making process is contained in Part 2 of the Higher Education Act 2004 and Schedule 2 to that Act. The purpose of Part 2 is to replace part of the visitors system for regulating or dealing with complaints about internal university affairs. The Act replaces visitors in respect...
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