Gateley : Universities succeed in the Court of Appeal

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The University of Leicester and St George's, University of London have achieved success in the Court of Appeal, overturning High Court guidance for Judicial Review (JR) which removed HEI's protections from JR and could have compelled unhappy students to commence JR proceedings unnecessarily. Peter Barr of Gateley's higher education team and Counsel, Aileen McColgan, of 11KBW advised the Universities.

Since the decision in Sibourema, the broadly accepted view was that students had to complain to the Office of the Independent Adjudicator (the OIA) in order to challenge a decision by a HEI. If dissatisfied with the OIA's decision, the student would be entitled to JR the OIA.

The case involved two former students who had their participation on their courses terminated respectively for repeated exam failure and for failing to meet fitness to practise requirements. The Students were provided with their Completion of Procedures letter marking the end of the Universities' procedures, leaving the Students with the option of complaining to the Office of the Independent Adjudicator (OIA) followed by JR.

Turing the established practise on its head, the High Court decided that these Students (and students generally) could begin JR proceedings against a HEI before going through (or deciding not to use at all) the free, bespoke complaints service that the Government set up (i.e. the OIA) and that (in effect) HEIs had to agree to extend the time for a student to bring a JR claim against it in order for them to go through the 'final' avenue of redress of complaining to the OIA.

This gave Students a second bite of the cherry as they could challenge a HEI decision via the OIA and if the student was dissatisfied with the OIA's finding, the student could JR the OIA and the HEI after the OIA had considered the complaint.

The Universities successful argued that the High Court's guidance would remove protection for HEIs and lead to an increase of JRs against them. This would place HEIs in a worse position than other public bodies, leading to an increase in legal spend and the diversion of resources to deal with JRs. It would also place a burden on Students who would inevitably have to take pre-action steps or even commence JR proceedings to protect their position in the event they later wished to JR the HEI. This would undermine the role and purpose of the OIA.

The Judgment handed down by Lady Justice Nicola Davies DBE, allowed the Universities' Appeals. The Judgment releases HEIs from the rigidity of the High Court's guidance and replaced it with more flexible direction that it would be open to a Student to write to a HEI, before complaining to the OIA, stating that they did not, at that time, wish to institute proceedings for JR but putting the HEI on notice of the detail of their complaint and indicating that it may be necessary to apply for JR in the event that the OIA procedure does not provide a suitable remedy. The Student would be able to rely on the letter at a later stage if they wished to JR the HEI out of time.

The Court of Appeal's decision retains HEI's protections from JR, empowers the OIA and provides Students with guidance they can follow swiftly and at limited cost if they wish to preserve their rights.

St George's, University of London - v - The Queen on the Application of Mazz Rafique Aldawery

University of Leicester - v - The Queen on the Application of Mithilan Sivasubramaniyam

The Office of the Independent Adjudicator was an Interested Party in both cases

Case No: C1/2017/0574 & 0575