The Queen (on the application of Darmeena Gopikrishna) v The Office of the Independent Adjudicator for Higher Education The University of Leicester and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | HHJ Curran |
| Judgment Date | 06 February 2015 |
| Neutral Citation | [2015] EWHC 207 (Admin) |
| Docket Number | Case No: CO/11271/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 February 2015 |
and
[2015] EWHC 207 (Admin)
His Honour Judge Curran QC
Case No: CO/11271/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clive Newton QC and David Lawson (instructed by Sinclairs Law Solicitors) for the Claimant
Aileen McColgan (instructed by E.J. Winter & Son) for the Defendant
John Hamilton (instructed by Watson Burton LLP) for the First Interested Party
Leon Glenister (instructed by Sinclairs Law Solicitors) for the other Interested Parties
Hearing date: 24 October 2014
HHJ Curran QC:
This judgment is divided into 6 parts and the contents are as follows:
Part 1: Contents, Abbreviations, and Introduction
Part 2: The complaint to the OIA & the Rules of the OIA Scheme
Part 3: The OIA's findings in its Final Decision
Part 4: The application for judicial review
Part 5: Relevant legal principles
Part 6: Conclusions
Abbreviations used throughout
| Topic | Paragraph |
| Contents | 1 |
| Abbreviations | 2 |
| The parties | 3 – 6 |
| Background | 7 – 12 |
| The Claimant's academic progress in her first year | 13 – 15 |
| The second year | 16 – 21 |
| The Examiners' decision, and appeal procedure | 22 |
| The Claimant's grounds for appeal to the APC | 23 – 26 |
| Hearing before the APC sub-committee | 27 – 28 |
| The meeting of the full APC and its decision | 29 – 31 |
| The 'weak student' finding | 32 – 35 |
| The appeal to the TCRP | 36 |
| Procedural Rules of the TCRP | 37 – 38 |
| Claimant's Grounds of Appeal to the TCRP | 39 – 43 |
| Dr Nandakumar's letter | 44 |
| Dr Clarke's letter | 45 – 52 |
| The 'Hales Letter' and the 'Hales Reference' | 53 |
| Section 12 of the Higher Education Act 2004 | 54 |
| The OIA Rules | 55 |
| The Claimant's original grounds of complaint to the OIA | 56 – 61 |
| The 'new evidence': (1) the Psychiatrist's report | 62 – 64 |
| The University's letter of 29 March 2012 | 65 |
| Receipt of the Hales Reference by the OIA | 66 – 72 |
| The 'new evidence': (2) the Psychologist's report | 73 |
| Provisional decision by the OIA | 74 – 75 |
| Enquiry of University by OIA on re-opening | 76 |
| Response by the University on 22 August 2012 | 77 – 78 |
| Summary of Errors of fact made by University and OIA | 79 – 81 |
| The Complaint Outcome in February 2013 | 82 – 84 |
| The University's refusal to re-consider | 85 – 88 |
| The University's letter of 11 June 2013 | 89 |
| The decision under challenge | 90 – 110 |
| Finding on 'academic judgement' | 93 |
| Observations on tutors | 94 |
| Scrutiny of the APC stage | 95 – 99 |
| Scrutiny of the TCRP stage | 97 – 104 |
| On the 'new evidence' & 'fresh decision' points | 105 – 110 |
| The original grounds | 111 |
| Refusal of permission by Stuart-Smith J | 112 |
| Permission hearing on amended grounds before Prof Grubb | 113 |
| Extent of permission granted | 114 |
| Applications in respect of further evidence at the hearing | 115 – 124 |
| Summaries of the additional evidence: | |
| Prof Petersen | 118 – 119 |
| Prof White | 120 – 121 |
| Dr Hales | 122 |
| The Claimant | 123 |
| Mr Wijesingha | 124 |
| Ruling on admission of the additional evidence | 125 |
| Applications to re-amend and further re-amend | 127 – 132 |
| Ruling on applications to re-amend | 133 – 136 |
| Submission by the OIA on insufficiency of complaint | 137 |
| Ruling on insufficiency of complaint to the OIA | 138 |
| Susceptibility of decisions of the OIA to judicial review Siborurema & Maxwell | 141 – 142 |
| 'Academic judgement' immunity: the general authorities | 143 – 150 |
| Clark | 143 |
| 145 | |
| Van Mellaert | 146 |
| Moroney | 147 |
| Hamilton | 149 |
| Abramova | 150 |
| Authorities on 'Academic judgement' & the OIA Scheme | 151 – 152 |
| Cardao-Pita | 151 |
| Mustafa | 152 |
| The 'former student' point | 153 – 155 |
| The University's 'exceptional circumstances' test | 156 |
| Procedural steps involved | 157 |
| Exceptional circumstances & the OIA's view on | |
| 'Fresh decision' | 158 – 160 |
| The 'no decision' or 'no fresh decision' point | 161 – 168 |
| Conclusion on the 'fresh decision' point | 169 – 171 |
| Other matters raised re 'exceptional circumstances' | 172 – 175 |
| The 'response to suggested mediation' point | 172 – 173 |
| Relevance of applications by interested parties | 174 |
| Time limit; Student Agreement; & medical evidence | 175 |
| Conclusion on 'exceptional circumstances' | 176 – 178 |
| ' The floodgates' | 179 – 182 |
| 'Academic judgement' | |
| The Claimant's submissions | 183 |
| The OIA's submissions | 184 – 186 |
| Conclusions | 187 – 206 |
| Error of fact | 207 – 208 |
| Refusal by OIA to re-consider at the hearing | 209 |
| Overall conclusions on the decision of the OIA | 210 – 213 |
| Procedural unfairness and the letter of 11 June 2013 | 214 – 216 |
| Comment on the difficulties faced by the OIA | 217 |
| Ruling | 218 – 219 |
For ease of reference the main abbreviations or acronyms which have been used in the evidence are as follows:
APC Academic Progress Committee
AS Academic Summary
Ch.B Bachelor of Surgery (university degree)
CSFC Consultation Skills Foundation Course
ESA End of Semester Assessment
HB Hearing Bundle
M.B. Bachelor of Medicine (university degree)
OIA Office of the Independent Adjudicator for Higher Education
OSCE Objective Structured Clinical Examination
QE Qualifying Examination
SSC Student-Selected Component
TCRP Termination of Course Review Panel
UTI Urinary tract infection
The parties
In 2011, the Claimant, then a second-year medical student, failed her end-of-year examination. She asked to be allowed to repeat the year and to re-sit the examination. A committee at the medical school decided that she should not be allowed to repeat the year, and that her course should be terminated. The Claimant appealed to a review panel acting for the whole university, which rejected her appeal. The Claimant then made a complaint to the Office of the Independent Adjudicator for Higher Education ("OIA") the statutory authority for higher education responsible for adjudication in such matters. The OIA over a period of time issued two provisional decisions, and later, following various developments detailed below, its final decision in an 'Amended Complaint Outcome.' The Claimant's complaint was not upheld. She now seeks judicial review of that final decision of the OIA.
The University and the Undergraduate Interested Parties
One aspect of this case, involving medical evidence first produced after the course termination decision, but which is said to be relevant to the Claimant's academic performance, is a matter which affects medical student members of the University other than the Claimant. Put shortly, a question arises as to whether a "fresh decision," reviewable by the OIA, was made when the University declined the invitation of the OIA to re-open the Claimant's case in the light of such evidence. The university and those other students involved have been joined in these proceedings as Interested Parties.
The OIA
The OIA has a public function to review a "qualifying complaint" made against a university and to determine the extent to which it is justified. The OIA considers whether the relevant internal regulations have been properly applied by the university, whether it has followed its own procedures, and whether its decision was reasonable in all the circumstances. It is not the function of the OIA to determine the legal rights and obligations of the parties involved, nor to conduct a full investigation into the underlying facts. The OIA has a broad discretion to be flexible in how it reviews the complaint and in deciding on the form, nature and extent of its investigation. The intention of Parliament was that its operations should be more informal, more expeditious and less costly than legal proceedings in ordinary courts and tribunals.
However, in certain circumstances, the decisions of the OIA are open to judicial review and, as is shown by this case, it may become very difficult for considerations of informality, expedition and economy of cost to be maintained. This judgment is unavoidably lengthy. Whilst the hearing occupied no more than the greater part of three days in court, the hearing bundle ("HB") comprised over 1,000 pages of documents. Skeleton arguments were submitted by all parties totalling over 100 pages. In addition, a lever-arch file of authorities was produced, containing many reported cases. Unusually for a case of its kind, there are numerous discrete matters of fact to be considered, as well as issues of law which require resolution. A further complicating factor is that errors and misunderstandings occurred during the many months when the complaint was being considered. The OIA say that those acting for the Claimant repeatedly changed the way in which the case was presented, and it is correct that even at the beginning of the hearing applications were made for re-amendment and further re-amendment of the Claimant's Grounds. It is impossible to resolve the issues without detailed examination of the background and the context within which those issues arose. It is also necessary to be clear...
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