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University complaints watchdog loses judicial review over academic judgement

A student’s High Court success over the Office of the Independent Adjudicator for Higher Education points to other cases having been wrongly decided

The Office of the Independent Adjudicator has been found wanting in a High Court judgment1 which has profound implications for its handling of student complaints.

The Judge heard an amended application for judicial review and quashed a decision by the OIA to reject a student’s complaint as ‘not justified’. The OIA was ordered to re-consider the complaint in the light of the Court’s conclusions on academic judgement.

The case arose after Darmeena Gopikrishna, a former University of Leicester medical student, complained to the OIA over the University’s termination of her Bachelor of Medicine and Bachelor of Surgery degree studies. When the OIA rejected Ms Gopikrishna’s complaint, without having addressed issues over the process and reasoning underlying the University’s refusal to allow her to repeat a year, she took the matter to court.

The Court concluded that the fundamental failures of procedural unfairness and irrationality were within the remit of the OIA. Although the OIA is precluded by law from considering matters of academic judgement,2 the extent to which this exemption for the OIA (and benefit to universities) applies has now been spelt out in a legal ruling.

The term ‘academic judgement’ only applies to that element of judgement which is purely academic in nature. Where the term is used less strictly the wider process and reasoning by which a judgement is derived are open to challenge. Even where a claim for academic judgement immunity is at its strongest, typically over an assessment mark or the classification of a degree, it may not be unassailable:

‘188iii) … if there is objective evidence of matters which suggest procedural unfairness, bias, impropriety, or the kind of administrative irrationality or perversity which the court can and does consider in many other fields, then the OIA may properly regard a complaint to it against a university’s decision as one which it is competent to determine, …’

The judgment is significant because the OIA has, at least in practice, deferred to a wider model of academic judgement, a model which sees its nature as all-embracing and unchallengeable. This approach, essentially that only academics can make academic judgements and that such may include elements of a less than academic nature, has now been exposed as mistaken. If the OIA adopts the line taken by the High Court then universities will no longer be able to assume they are safe from scrutiny in presuming their decisions to be fully covered by ‘academic judgement’.

Still, it is far from certain that future complainants will gain anything from the High Court’s ruling. Even should the OIA adopt a more scrupulous approach to evaluating complaints it will still be able to cover failings on the part of a university with a ‘reasonable in all the circumstances’ umbrella, so deciding against the student.

The OIA’s rules include its review procedures:

‘6.4 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.’

In practice, the OIA ‘only asks itself the question set out in that rule’.3 Whatever a university’s shortcomings, its overall reasonableness, as determined by the OIA, is an overriding criterion in the OIA’s decision making. This emphasis on reasonableness inevitably means that issues of fairness are of lesser concern.

Although university students expect to be treated fairly the OIA’s rule makes no reference to fairness. The basic necessity for a university to be ‘fair and reasonable’ is simply not there. While elements of natural justice and fairness are implied in considerations of whether or not a Higher Education Institution used its regulations and procedures properly there will also be issues of fairness that fall outside of an institution’s rules. In fact, to the further advantage of HEIs, the less prescriptive a set of appeal or complaint rules the harder it becomes for a student to identify and cite procedural failures.

When does unfairness become unreasonable? There must be circumstances where the expectation that universities will treat their students fairly is of such consequence that material unfairness will lead to the unequivocal upholding of a complaint against the university. The essence of being a university requires a standard of fairness to which it can and should be held to account.

Ms Gopikrishna’s course of study and her chosen career were at stake. An independent complaints body must be required to recognise and carefully assess any unfairness in the means by which her studies were terminated. Where such unfairness may have affected the outcome it must uphold the complaint.

The Judge is clear that challenges to process should be fully considered, that a university is required to meet a standard of fairness and that the OIA should uphold a complaint when that standard of fairness is not met:

‘192. … whilst there is no principle of fairness which requires, as a general rule, that a person should be entitled to challenge a purely academic judgement on his or her work or potential, each case must be examined on its own facts. If on a true analysis of those facts, applying the words of the statute, the case is not a challenge to the decision to the extent that it relates to academic judgement, but a challenge to the process by which it was determined that the Claimant should not be allowed to repeat Year 2, then, if that process failed to measure up to the standard of fairness required of the university, the OIA should have found the complaint made to it justified.’

The watchdog was not unaware of the issues it had failed to address in deciding Ms Gopikrishna’s complaint. Indeed, it was sufficiently concerned to invite the University to re-open the case:

‘76. … given the seriousness of the decision to [the Claimant’s] career, the fact of the new evidence, and in the light of some concerns about the fairness of the University’s procedure, I have taken this opportunity to invite the University to exceptionally consider offering to reconsider [the Claimant’s] circumstances. …’

The University declined to reconsider the matter. It took the view, partly based on its mistaken belief that a tutor’s letter of academic reference had been before an appeal review panel, that Ms Gopikrishna had been given a fair hearing. The University asserted that the appeal process was a method of exercising academic discretion and stated its position:

‘77. … Her appeal focused on the key issue of ability to progress, and provided evidence in support of her contentions. It is worth pointing out that the [appeal] process is not a judicial process: it is ultimately a method by which academic discretion is exercised in relation to student progress in circumstances where the full position is that the default position is that their studies be terminated.

… The position of the University is that the decisions arrived at here have been entirely subject to academic judgement and in accordance with its regulations and procedures. …’

In drawing conclusions the Judge indicates the extent of the OIA’s failures and describes it as having ‘by-passed’ evidence:

‘211. The first complaint against the OIA is that it failed to deal with the alleged invalidity of the ‘weak student’ finding, despite the fact that the issue of such invalidity was raised, clearly and unequivocally in the original Grounds of Complaint, in the exhibit to the Addendum Grounds and in the Hales Reference. It was not possible therefore to confirm that the decision-maker had demonstrated any application of his or her mind to that point: instead it was by-passed. … Moreover there was evidence that procedural errors were made at both University hearings which may have led to unfairness, quite apart from those errors only revealed after the Decision was given.’

The Judge’s ruling makes it clear that the Office of the Independent Adjudicator should not passively submit to university expectations or claims of academic judgement protection. The OIA should have considered the extent to which the University’s decision was not made on purely academic grounds. It should have scrutinised the fairness of the decision making process and the reasoning behind the decision:

‘219. In my judgment it was open to the OIA to look critically at the assertion that the decision was immune from review as an academic judgement. It was open to the OIA to consider “the extent to which” the decision was not made on purely academic grounds. In doing so, it should have considered such failure by the University to take relevant matters into account as it may have found had occurred. That would have involved scrutiny of the fairness of the process in the different respects referred to above and also of the reasoning which underlay the decision of the University. It remains open for them on a further review of the case.’

The Judge finds that there may have been such unfairness or irrationality that the OIA should have taken this into account in reaching its decision. The OIA is required to re-consider the complaint in the light of the Court’s conclusions on ‘academic judgement’:

‘220. It is not for the court to find that material procedural unfairness at the two hearings or irrationality in the decision-making at the University have been established: but it is for the court to make a finding that there are grounds for taking the view that there may have been such unfairness or irrationality and that, on the material before it, the OIA should have taken that into account in reaching its decision (whether that decision was to dismiss the complaint or to uphold it) but did not do so. It is also for the court to make a finding that a material error occurred which may have made a difference to the outcome. Those are the findings I make, for the reasons which I have attempted to explain at such length. The case is not made out, in my view for a mandatory order, as sought in the prayer for relief. I quash the Amended Complaint Outcome and remit the matter to the OIA for it to re-consider the complaint, both as it was originally made, and in the light of the conclusions in this judgment on the issue of ‘academic judgement’ and of the true facts as they are now accepted on all sides. To that extent this application for judicial review succeeds.’

The OIA has been handling student complaints for a decade. Only now has it been set straight over its treatment of ‘academic judgement’. It retains a wide power of discretion. It could be another decade before happenstance provides a judge with the opportunity to tell the OIA that university failures which may have affected the outcome of a student appeal or complaint are not reasonable.

In unduly conceding to universities the Office of the Independent Adjudicator may have wrongly decided many cases. Those who consider it to be biased may see their stance as having been further confirmed.

1 Gopikrishna, R (on the application of) v The Office of the Independent Adjudicator for Higher Education & Ors [2015] EWHC 207 (Admin) (6 February 2015):

2 Higher Education Act 2004, Section 12, Qualifying complaints:

3 Siborurema, R (on the application of) v Office of the Independent Adjudicator [2007] EWCA Civ 1365 (20 December 2007), Paragraph 17:

There is ample scope for the student consumer to demand better

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