The dog days

The period just before Christmas forms the darkest part of the year. It is the time when many animals are buried deep underground, hibernating, waiting for better days to come in the spring. Similarly the legal world often pauses at this time, waiting for the end of the old year and the beginning of the new, when the pace of work will pick up markedly. Already I have received a set of instructions for the first Upper Tribunal case of 2019.

One case that caught my eye in recent months is that of R v St Georges University of London Mazz Rafique- Aldawery [2018] EWCA Civ 2520. For many years I have conducted judicial review claims for and against various educational bodies and this case is an interesting example of one particular problem that can arise when dealing with providers of higher education, namely whether to pursue a complaint utilizing the statutory complaints procedure or simply to proceed to judicial review..

The facts of the cases were stated as follows:

2. The appellants are providers of higher education. The first and second respondents are former medical students who had been undertaking courses of study at the respective appellant universities, each of which was terminated either by reason of fitness to practise issues (first respondent) or repeated examination failure (second respondent). Each respondent challenged the decision. The first respondent sought to rely on late medical evidence provided to the first defendant following termination of his registration. The second respondent sought to challenge the second appellant’s application of a rule that students must complete a five-year medical degree within seven years.

3. Each respondent issued judicial review proceedings against the respective appellants and obtained orders staying their applications pending the conclusion of their complaints to the OIA. Following the decision under challenge, the OIA rejected both complaints, the applications for permission to bring proceedings for judicial review proceeded, permission was refused on the papers by Judge Allen on 9 and 4 August 2017 in the case of the first and second respondent respectively. The respondents renewed their applications for permission which were dismissed by Leigh-Ann Mulcahy QC sitting as a Deputy High Court Judge on 21 September 2017.

The essential issue was whether the students were right to issue judicial review proceedings and have them stayed whilst they pursued complaints with the OIA, or whether they should simply proceed with the complaint to the OIA and if that then failed to produce a suitable resolution, then issue proceedings for judicial review.

The judgment contains a useful summary of the case law painfully established over a number of years, concerning to what extent the jurisdictions of the OIA and the civil courts overlap. Properly analyzed, the answer is very little, once the nature of a dispute has been defined, and it is apparent whether for example, disability discrimination is being alleged, which is a claim that should certainly be pursued through the civil courts.

The Court of Appeal gave the following guidance on the point before them.

17. It is not the appellants’ case that it would never be appropriate for a stay to be ordered in judicial review proceedings arising from a student’s complaint against a HEI, paragraph 3(2)(c)(ii) of Schedule 2 of the 2004 Act expressly contemplates such an event. The appellants’ contentions are that the ruling of the judge, in particular the detailed guidance given in respect of timings and procedure to be followed, would:

i) Impel students to issue judicial review proceedings for fear of losing a legitimate means of protecting themselves and their rights. This could result in the instruction of lawyers, a step they would be unlikely to take in respect of complaints to the OIA;

ii) Deprive the HEI of its normal protection in judicial review proceedings, namely short time limits. The timings in the guidance are longer and incompatible with the timings in judicial review proceedings. The effect would be to place student claimants in a different position to other claimants in judicial review proceedings;

iii) Undermine the statutory complaints procedure by encouraging the students protectively to issue applications for judicial review simultaneously with complaints to the OIA.
In my view there is force in each of these points.

18. The OIA is, and is recognised by the courts as being, a suitable alternative remedy to judicial review. It is relatively swift and cost effective, one which students can invoke without recourse to instructing lawyers. It is rare for an OIA review to exceed twelve months, the current average review time is below one hundred days. It is a remedy which is amenable to judicial review. It does not provide rulings upon legal rights and obligations, however the OIA does scrutinise the behaviour of the HEI to a sta ndard w hic h wo uld re flect t hat co nta ined in j ud ic ia l r e vie w proceed ings. Moreover, the redress it can provide has a practical flexibility which judicial proceedings lack e.g. it can recommend the student’s reinstatement on the course of study. In practice it is rare for an HEI not to follow the findings/recommendations of the OIA. Further, as the courts have made clear, judicial review is a remedy of last resort in circumstances where an alternative, albeit not identical, remedy exists.

19. The judge in providing guidance was doing so with the best of intentions in order to assist any student in the future. My concern is that such guidance provides a general rule which students would or could feel obliged to follow in respect of what, in reality, would be only a limited number of cases. Such detailed guidance could result in a rigidity of approach, meaning that a student would feel compelled to contemplate judicial review proceedings, which could involve consulting lawyers, when available to the student would be a relatively informal and swift means of practical resolution which the student could embark upon without the need for and cost of lawyers.

20. By the time the student makes the decision to raise a complaint against an HEI he/she will be in receipt of the reasons for the decision and the sanction complained of. It is likely that such reasoning will provide a good indication of whether the OIA will provide an effective means of review and resolution of the particular problem. The ambit and powers of the OIA are a matter of public record of which anyone embarking upon a complaint would or should be aware. This would provide guidance as to whether the OIA could provide appropriate review and resolution.

21. In the event that a student is uncertain as to the course to be taken, it would be open to the student to write to the HEI stating that they do not, at that time, wish to institute proceedings for judicial review but putting the HEI on notice of the detail of the complaint and indicating that it may be necessary to apply for judicial review in the event that the OIA procedure does not provide a suitable remedy. If in those circumstances the HEI later sought to take a time bar point in any subsequent judicial review proceedings the student’s letter could be filed in the proceedings. The fact that the HEI were on notice of the detail of the complaint from the outset would be a significant factor of which the court could take account in exercising its discretion to extend time. This course would likely serve to protect the legal position of the student without recourse to separate legal proceedings when the complaint to the OIA is made. It would address the concerns raised by the appellants summarised at paragraph 17 above and those of the interested party.

22. For the reasons I have given, I would allow the appeal.

The overlap of potential remedies remains a problematic area in education cases. Another analogous problem can be determining in which forum a challenge to a child’s exclusion from school should be brought, which in turn will require consideration of whether the exclusion is linked to a child’s disability or learning difficulty, such that a claim in the FTT might be warranted, or whether it needs to proceed in the High Court as a claim for judicial review.



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