R (Siborurema) v Office of the Independent Adjudicator for Higher Education
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE MOORE-BICK,LORD JUSTICE RICHARDS |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1365 |
| Docket Number | Case No: C1/2006/2589 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2007 |
[2007] EWCA Civ 1365
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD ADMINISTRATIVE COURT
Mr JUSTICE MITTING
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Moore-Bick and
Lord Justice Richards
Case No: C1/2006/2589
Gregory Jones (instructed by Messrs AP Law) for the Appellant
Oliver Hyams (instructed by Messrs E J Winter & Sons) for the Respondent
John Hamilton (instructed by Lupton Fawcett) for the Interested Party
Hearing dates: 6 & 7 November 2007
This is an appeal by Mr Gaston Siborurema against the refusal of Mitting J to grant him permission to apply for judicial review of a decision of the Office of the Independent Adjudicator for Higher Education (“OIA”) made by a letter dated 7 December 2005. OIA found that the appellant's complaint against London South Bank University (“the University”), under the Scheme operated by OIA in accordance with the Higher Education Act 2004 (“the 2004 Act”), was unjustified. The appeal is brought by permission of Sir Henry Brooke on consideration of the papers. He directed that, if permission to apply for judicial review was granted by this court, the application for judicial review should be retained in this court.
In his reasons for granting permission, Sir Henry Brooke, having set out the basic facts, stated:
“On the face of it, this application seems hopeless”.
Sir Henry Brooke added:
“However, the appellant has raised issues about the fairness of the process adopted by the Independent Adjudicator and the power of [OIA] which, in my view, warrant the consideration of the Court of Appeal, since this is a comparatively new jurisdiction. [OIA] has raised an issue as to whether [OIA] is amenable to judicial review at all, and this should also be decided”.
An extension of time was granted. Mitting J had found that the appellant's central submission was “simply unarguable”. As to the issue whether OIA could be challenged by way of judicial review, he stated:
“There is no point in having it decided in a vacuum in a case such as this without legal merit”.
In recent years, the need has been perceived in Higher Education Institutions (“HEIs”) for a procedure by which students may make a complaint about decisions of the HEI affecting them, other than matters of academic judgment. OIA was formed as a company limited by guarantee in 2003. The first members of the company were figures prominent in the academic world. Provision was made in the Articles of Association for a Board of Directors comprising not fewer than 13 and not more than 16 directors. Each of the 6 members of the company was to appoint a director and there were to be at least 7 independent directors co-opted by the Board of Directors from among persons with experience or skills relevant to the purposes of the company. The Board was empowered to appoint an Independent Adjudicator. They could also appoint a Deputy Adjudicator who would be responsible for the administration and organisation of the Scheme and the company. Initially, the company was funded by the Government.
The Statute and the Scheme
The 2004 Act was, in its short title, stated to be an Act to make provision (amongst other things) for complaints by students against institutions providing higher education. Part 2 is headed “Review of Student Complaints”. Section 13, in so far as is material, provides:
“(1) The Secretary of State may, for the purposes of this Part, designate a body corporate as the designated operator for England as from a date specified in the designation.
(2) The [Welsh] Assembly may, for the purposes of this Part, designate a body corporate as the designated operator for Wales as from a date specified in the designation.
(3) The Secretary of State or the Assembly may not designate a body under subsection ( 1) or (2) unless he or the Assembly is satisfied that the body –
(a) meets all of the conditions set out in Schedule 1,
(b) is providing a scheme for the review of qualifying complaints that meets all of the conditions set out in Schedule 2, or is proposing to provide such a scheme from a date not later than the effective date,
(c) has consulted interested parties about the provisions of that scheme, and
(d) consents to the designation.
(4) …
(5) In this Part –
(a) …
(b) any reference to the designated operator is –
(i) in relation to an institution in England, a reference to the body designated under subsection (1), and
(ii) in relation to an institution in Wales, a reference to the body designated under subsection (2)”.
Section 14 provides:
“The designated operator must comply with the duties set out in Schedule 3 during the period specified in that Schedule”.
Section 15(1) provides:
“The governing body of every qualifying institution in England and Wales must comply with any obligation imposed upon it by a scheme for the review of qualifying complaints that is provided by the designated operator”.
Section 17 of the 2004 Act provides, in subsection (1):
“For the purposes of the law of defamation, any proceedings relating to the review under the scheme of a qualifying complaint are to be treated as if they were proceedings before a court”.
Section 19 amends the time limits for bringing claims under the statutes dealing with discrimination by extending the period allowed where the dispute concerned is referred as a complaint under the Scheme. Section 20 excludes Visitors' former jurisdiction in relation to student complaints.
It is accepted in the present case that the University was a “qualifying institution” within the meaning of Section 11 of the Act and the complaint was a “qualifying complaint” within the meaning of Section 12.
OIA is the first body designated by the Secretary of State under Section 13(1) and by the National Assembly for Wales under Section 13(2). It is a non-profit making body now funded entirely by subscriptions paid by HEIs.
By virtue of Schedule 1 to the Act, it is a condition to be met by the operator of the Student Complaints Scheme that the body corporate “is capable of providing in an effective manner … a Scheme for the review of qualifying complaints which meets all the conditions set out in Schedule 2”.
Schedule 2 provides, at paragraph 3(2)(b), that where a qualifying institution provides an internal procedure for the review of complaints, the complaint is not to be referred under the Scheme until the complainant has exhausted the internal procedures at the HEI.
By paragraph 4, it is required that every qualifying complaint referred under the Scheme is reviewed by an individual who is independent of the parties and is suitable to review the complaint. “Reviewer” is defined in paragraph 14 as “the Independent Adjudicator or the Deputy Adjudicator or such other person to whom the review of a complaint has been delegated”. Under paragraph 5, the reviewer must make a decision, as soon as reasonably practicable, “as to the extent to which a qualifying complaint is justified”. Provision is also made for the dismissal of a qualifying complaint without consideration of the merits if the “reviewer considers the complaint to be frivolous or vexatious”.
Paragraph 2 of Schedule 3 provides that “the designated operator must provide a Scheme for the review of qualifying complaints which meets all the conditions set out in Schedule 2”. Paragraph 5 provides: “The designated operator must comply with any requirements that the Scheme imposes on it”. Paragraph 6 provides for the production of an annual report by the designated operator on the Scheme and its operation.
The rules of the Scheme established by OIA were its own draft. It is accepted that in most respects they reflect the requirements of the Statute. Paragraph 6.1 provides:
“The Reviewer will carry out a review of the complaint to decide whether it is justified in whole or in part”.
Paragraph 6.2 provides:
“The review will normally consist of a review of documentation and other information and the Reviewer will not hold an oral hearing unless in all the circumstances he or she considers that it is necessary to do so”.
Save as cited, Schedule 2 of the Act is silent as to the extent of OIA's duty to investigate when deciding whether a complaint is justified.
There is a dispute about the duties and powers of OIA when considering complaints and I summarise it. On behalf of the appellant, it is submitted that the Statute requires OIA to conduct a full merits review, an enquiry de novo, into the student's complaint. Alternatively, it is submitted, it has a duty to consider whether to conduct such an enquiry before deciding, if it does, that a more limited review is appropriate in the particular case.
OIA takes a more limited view of the duties imposed on it. Schedule 2 does not require it to operate a Scheme by which such full enquiry is always required. The powers and duties are properly expressed, it is submitted, in paragraph 7.3 of the Scheme. Paragraph 7.2 having provided that the formal decision and any recommendation shall be in writing, and contain reasons for the formal decision, and for any recommendation, paragraph 7.3 provides:
“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”.
Paragraph 7.4 of the Scheme provides a Reviewer with a range of...
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