The Queen (on the application of Dean Richard Wilson) v The Office of the Independent Adjudicator for Higher Education University of Hull (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 05 March 2014 |
| Neutral Citation | [2014] EWHC 558 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 March 2014 |
| Docket Number | Case No: CO/3517/2012 |
[2014] EWHC 558 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Mott QC
Sitting as a Deputy High Court Judge
Case No: CO/3517/2012
and
The Claimant in person
Laura McNair-Wilson (instructed by EJ Winter & Son) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 19 February 2014
Philip Mott QC:
The Claimant seeks judicial review of the decision of the Defendant ("the OIA") dated 10 January 2012. Permission was granted by HHJ Sycamore at a renewed oral hearing on 23 April 2013. Since then the OIA has reviewed and revised the decision, and has issued a fresh decision dated 30 October 2013. As a result the challenge to the original decision has become academic. The Claimant maintains his challenge to the second decision, both as to its findings and as to its recommendations.
It was agreed by the OIA that I should consider this challenge to the second decision at this hearing, although there had been no formal application to amend or substitute grounds for relief. As a result the detailed complaints only became fully apparent at the hearing, but neither party submitted that any unfairness arose as a result. The Interested Party has taken no part in the proceedings and was not represented before me.
Principles of Law
There is no dispute that decisions of the OIA are amenable to judicial review. The Court of Appeal in R (Siborurema) v OIA [2007] EWCA Civ 1365 accepted this: see paragraph [49]. However, the OIA has a broad discretion in determining how to approach a particular complaint, and the court should have regard to the expertise of the OIA: paragraph [53]. As a result, the court is likely to be slow to accept that its choice of procedure was improper, and not easily persuaded that its decision and any consequent recommendation was unsustainable in law: paragraph [70]. Moreover, elaborate reasoning is not required in a decision of this nature: paragraph [79].
This was confirmed in R (Maxwell) v OIA [2011] EWCA Civ 1236, in which Mummery LJ said, at paragraph [23]:
"The courts will be slow to interfere with review decisions and recommendations of the OIA when they are adequately reasoned. They are not required to be elaborately reasoned, the intention being that its operations should be more informal, more expeditious and less costly than legal proceedings in ordinary courts and tribunals."
The position is the same in relation to other independent review bodies, such as the Independent Police Complaints Commission: see Muldoon v IPCC [2009] EWHC 3633 (Admin). This court should not expect the sort of tightly argued judgment that might be expected of a Chancery judge.
In R (Cardao-Pito) v OIA & London Business School [2012] EWHC 203 (Admin) it was accepted that the OIA had the power to review its decisions and to re-determine a complaint. HH Judge Gilbart QC considered the reasoning in relation to the assessment of compensation. He too emphasised that elaborate reasoning is not required. Although he found that the particular decisions were deficient in reasoning, he said, at paragraph [138]:
"I entirely accept that the OIA is not to be expected to engage in the depth of assessment appropriate to a personal injury claim – whether of special damages for loss of earnings, future losses or for disadvantage on the labour market."
Factual Background
In October 2009 the Claimant registered at the University of Hull to pursue an MSc course in Personal and Corporate Coaching, a two year part-time programme. The tutors were a married couple. Since they have not personally been involved in these proceedings, and were not represented, I shall refer to them as Dr D and Dr R. I shall likewise refer to other participants by initials.
The course consisted of six modules. The Claimant passed the first module with an overall mark of 50%, and also passed the second module with 62%. Module 3 was completed but unmarked when a problem arose with the study weekend for Module 4. This was a long weekend between 22 and 25 April 2010 when all the students on the course were expected to attend in Hull. In general, the other course work was conducted online and by private study. Unfortunately, just before the planned weekend the Icelandic volcano eruption caused a dust cloud which stopped all air travel. Dr D and Dr R were in Portugal and could not get back to Hull for the study weekend. It therefore had to be postponed.
Dr R wanted to hold an online seminar for one hour at the original start time of 9.30 am on 22 April 2010. The Claimant asked for it to be held that evening instead, as it was inconvenient for him. Dr R declined this request, and the Claimant in fact joined the seminar online in the morning. During that seminar Dr R wanted to fix a further one hour online seminar for the end of the planned weekend. As a result of objections from others, the seminar was eventually fixed for 8.30 pm on Tuesday 27 April, outside the dates of the original study weekend. This date and time was not inconvenient for the Claimant, but he felt a sense of grievance that his difficulties had been overruled in respect of the first seminar, whereas others' difficulties were accommodated in respect of the second seminar. As a result he emailed Dr R and Dr D alleging double standards in relation to flexibility.
The email correspondence then quickly became acrimonious and (as the Defendant rightly found) inappropriate on both sides. Within a few days Dr D informed the Claimant by email that he had failed both elements of his work for Module 3. He queried this, but the decision was upheld by the external examiner. At the end of May 2010 the Claimant submitted a formal complaint against Dr D and Dr R. He also referred to the loss by the University of a piece of his work for Module 2. That complaint was investigated by Dr C on behalf of the Head of Department, Professor W. The Claimant agreed to submit his work for Module 4 to Dr C, to be held pending completion of the investigation of his complaint. This work was marked by Dr D and Dr R in July and August 2010. He was failed in respect of all three pieces of work, and this was ratified by the external examiner.
In September 2010 the Claimant's complaint was considered by a Complaints Adjudication Panel ("CAP"). The CAP did not uphold his complaint, but noted that it could have been better handled by the Department.
Later that month the Claimant supplied receipts for his Module 2 work, to support his assertion that part had been lost. This was investigated as a new complaint by Mrs L, but the Claimant declined to meet her unless the University would agree to treating both complaints as one. She concluded that the new evidence did not compromise the integrity and recommendations of the original investigation, and also that there was insufficient evidence to support his claim that he had been treated differently from other students.
The Claimant did not re-submit any work for Modules 3 or 4, and did not complete Modules 5 and 6.
On 20 December 2010 the OIA received a completed complaint form from the Claimant. The first decision, dated 10 January 2012, was that his complaint was partly justified. The body of the report showed that some complaints were held to be justified, some unjustified, and some partly justified. It recommended that the University should reimburse the Claimant's course fees, amounting to £1,695.
The Claimant was dissatisfied with this decision, and issued judicial review proceedings on 26 March 2012. Permission was refused by Collins J on paper on 31 August 2012, but renewed to an oral hearing on 23 April 2013. At that hearing HHJ Sycamore gave permission. The OIA thereafter conducted a fresh review and issued a second decision dated 30 October 2013. It concluded that the complaint was partly justified, although the reasoning was different. It recommended that the University offer the Claimant an apology, the return of his course fees of £1,695, and a further sum of £6,000 in compensation for the distress and inconvenience he had experienced. The University accepted this second decision, but the Claimant has not.
This is a very brief summary of the factual background, insofar as it is relevant to the particular complaints now made by the Claimant in relation to the second decision. I now turn to consider those in more detail.
Issues at the Hearing
The effect of the second decision was effectively to revoke and replace the first decision. There is, therefore, no subsisting first decision for this court to quash, even if satisfied that it contained errors of law. Any consideration of that decision, except as part of the background and by way of comparison with the second decision, would be entirely academic. I therefore declined to do so, and made it clear to the Claimant that he should confine his current complaints to the second decision.
At the hearing before me, it was apparent that the Claimant initially wished to rehearse the facts and treat this court as a primary fact-finder. In due course, it became possible to enumerate his current complaints as follows:
i) He was treated unfairly because Dr R was prepared to accommodate others in relation to the timing of the second online seminar, but had not been prepared to accommodate the Claimant in relation to the first.
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