Students, judicial reviews and the OIA
St George’s University of London v R (Rafique-Aldawery), University of Leicester v R (Sivasubramaniyam) [2018] EWCA Civ 2520
The Office of the Independent Adjudicator (“OIA”) is a suitable alternative remedy to judicial review and is itself judicially reviewable. As such, the lower court (Hickinbottom J) was wrong to issue stays in respect of two students who had applied for judicial review against their universities pending the outcome of their OIA complaints. If uncertain as to the proper approach, a student could put the university on notice of their future intention to seek judicial review in the event of an unsatisfactory OIA outcome.
The two respondents were former medical students at St George’s, University of London, and the University of Leeds. One had been terminated following an internal ‘Fitness to Practise’ procedure and the other following repeated examination failure.
The respondents protectively issued JR proceedings against their respective universities and obtained stays of their applications pending resolution of their complaints by the OIA. The rationale for this approach was to ensure compliance with the requirement in the Administrative Court to start proceedings promptly and no later than 3 months of the decision under challenge. Given the length of time it takes the OIA to resolve a complaint, to do otherwise would likely result in the student having to rely on the Court’s discretion to extend time to avoid being time-barred.
The stay would also allow the OIA to consider the matter as it cannot consider a complaint that is before the courts and not stayed.
In the consolidated appeal, the Court of Appeal reviewed the OIA Rules and case law relating to the role and remit of the OIA.
The Court found force in the appellant’s contentions that Hickinbottom J’s guidance on the timings and procedure of JR applications under various scenarios would:
1) Impel students to issue JR proceedings for fear of losing that option later;
2) Deprive the Higher Education institution of its normal protection in JR proceedings, i.e., short time limits;
3) Undermine the statutory complaints procedure (as set out by the Higher Education Act 2004) by encouraging students to issue protective JR applications at the same time as lodging OIA complaints.
The Court observed that the OIA, although it did not rule on legal rights and obligations, was a suitable alternative remedy to JR and that the OIA was itself amenable to judicial review. It could also make practical suggestions not open to the courts. Further, JR should be a remedy of last resort when an alternative remedy exists.
The danger of the High Court’s guidance, said the Court of Appeal, is that students would feel obliged to contemplate JR proceedings when often this would be quite unnecessary.
The Court noted that, by the time students seek to appeal or complain against the higher education institution, they will know the reasoning of the institution and can determine whether the OIA is the suitable reviewer.
If students are uncertain as to whether to complain to the OIA, apply for JR, or both, they can protect their legal position by writing to the institution to inform them of their complaint and immediate intention to go to the OIA but that, failing a satisfactory outcome, a JR application will be made.
Appeal allowed.
