|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gopikrishna, R (on the application of) v The Office of the Independent Adjudicator for Higher Education & Ors  EWHC 207 (Admin) (06 February 2015)
Cite as:  EWHC 207 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of DARMEENA GOPIKRISHNA)
|- and -
|THE OFFICE OF THE INDEPENDENT ADJUDICATOR FOR HIGHER EDUCATION
|- and -
|THE UNIVERSITY OF LEICESTER
KAZIRA VON SELMONT
Aileen McColgan (instructed by E.J. Winter & Son) for the Defendant
John Hamilton (instructed by Watson Burton LLP) for the First Interested Party
Leon Glenister (instructed by Sinclairs Law Solicitors) for the other Interested Parties
Hearing date: 24 October 2014
Crown Copyright ©
HHJ Curran QC :
|Part 1: Contents, Abbreviations, and Introduction|
|The Claimant's academic progress in her first year||13-15|
|The second year||16-21|
|The Examiners' decision, and appeal procedure||22|
|The Claimant's grounds for appeal to the APC||23-26|
|Hearing before the APC sub-committee||27-28|
|The meeting of the full APC and its decision||29-31|
|The 'weak student' finding||32-35|
|The appeal to the TCRP||36|
|Procedural Rules of the TCRP||37-38|
|Claimant's Grounds of Appeal to the TCRP||39-43|
|Dr Nandakumar's letter||44|
|Dr Clarke's letter||45-52|
|The 'Hales Letter' and the 'Hales Reference'||53|
|Part 2: The complaint to the OIA & the Rules of the OIA Scheme|
|Section 12 of the Higher Education Act 2004||54|
|The OIA Rules||55|
|The Claimant's original grounds of complaint to the OIA||56-61|
|The 'new evidence': (1) the Psychiatrist's report||62-64|
|The University's letter of 29 March 2012||65|
|Receipt of the Hales Reference by the OIA||66-72|
|The 'new evidence': (2) the Psychologist's report||73|
|Provisional decision by the OIA||74-75|
|Enquiry of University by OIA on re-opening||76|
|Response by the University on 22 August 2012||77-78|
|Summary of Errors of fact made by University and OIA||79-81|
|The Complaint Outcome in February 2013||82-84|
|The University's refusal to re-consider||85-88|
|The University's letter of 11 June 2013||89|
|Part 3: The OIA's findings in its Final Decision|
|The decision under challenge||90-110|
|Finding on 'academic judgement'||93|
|Observations on tutors||94|
|Scrutiny of the APC stage||95-99|
|Scrutiny of the TCRP stage||97-104|
|On the 'new evidence' & 'fresh decision' points||105-110|
|Part 4: The application for judicial review|
|The original grounds||111|
|Refusal of permission by Stuart-Smith J||112|
|Permission hearing on amended grounds before Prof Grubb||113|
|Extent of permission granted||114|
|Applications in respect of further evidence at the hearing||115-124|
|Summaries of the additional evidence:|
|Ruling on admission of the additional evidence||125|
|Applications to re-amend and further re-amend||127-132|
|Ruling on applications to re-amend||133-136|
|Submission by the OIA on insufficiency of complaint||137|
|Ruling on insufficiency of complaint to the OIA||138|
|Part 5: Relevant legal principles|
|Susceptibility of decisions of the OIA to judicial review|
|Siborurema & Maxwell||141-142|
|'Academic judgement' immunity: the general authorities||143-150|
|Authorities on 'Academic judgement' & the OIA Scheme||151-152|
|Part 6: Conclusions|
|The 'former student' point||153-155|
|The University's 'exceptional circumstances' test||156|
|Procedural steps involved||157|
|Exceptional circumstances & the OIA's view on|
|The 'no decision' or 'no fresh decision' point||161-168|
|Conclusion on the 'fresh decision' point||169-171|
|Other matters raised re 'exceptional circumstances'||172-175|
|The 'response to suggested mediation' point||172-173|
|Relevance of applications by interested parties||174|
|Time limit; Student Agreement; & medical evidence||175|
|Conclusion on 'exceptional circumstances'||176-178|
|The Claimant's submissions||183|
|The OIA's submissions||184-186|
|Error of fact||207-208|
|Refusal by OIA to re-consider at the hearing||209|
|Overall conclusions on the decision of the OIA||210-213|
|Procedural unfairness and the letter of 11 June 2013||214-216|
|Comment on the difficulties faced by the OIA||217|
Abbreviations used throughout
APC Academic Progress Committee
AS Academic Summary
Ch.B Bachelor of Surgery (university degree)
CSFC Consultation Skills Foundation Course
ESA End of Semester Assessment
HB Hearing Bundle
M.B. Bachelor of Medicine (university degree)
OIA Office of the Independent Adjudicator for Higher Education
OSCE Objective Structured Clinical Examination
QE Qualifying Examination
SSC Student-Selected Component
TCRP Termination of Course Review Panel
UTI Urinary tract infection
The University and the Undergraduate Interested Parties
The Claimant's academic progress in her first year
"The Claimant came to see me in her first year, explaining some of the appalling life events she had experienced and made me aware that she was feeling depressed. At the time the University operated a procedure whereby mitigating circumstances would only be considered if a student were to fail an actual examination. In the Claimant's case she made me aware in her first year of … the way in which her circumstances impacted on her academic performance. However, given that she passed her first year it was not necessary for me to refer her to a mitigating circumstances procedure." (HB 1029)
Dr Hales also said that from the second semester in the first year onwards the Claimant was diligent in informing the medical school of her problems. He added,
"Under the circumstances it was to her credit that she narrowly passed her first year. An interregnum left her without a personal tutor for all but the last few weeks of the second year…"
It is now accepted by all parties that none of the Claimant's absences, whether in her first or her second year, were unauthorised. The University at one stage suggested in a letter to her MP that her attendance had been "poor" but at the hearing all parties appeared to accept that the Claimant had not missed any academic or clinical sessions without obtaining authorisation for such absences, and for valid reasons. There has been no challenge, at any stage, to the veracity of the Claimant's account of the difficulties she encountered which led to these absences.
The second year
"[The father's] GP informed the medical school that his gambling subsequently abated and the family were receiving a great deal more social support. This improvement came too late in the academic year for the damage to the Claimant's studies to be rectified." (HB 1030)
Dr Hales also said that it was through research performed by the Claimant herself that the problem with the medication was identified. As a result, he said, of the Claimant's request for help for him, during the Easter period in 2011 her father was admitted to hospital for six weeks. However, that in turn made it necessary for her to make regular visits to him in the revision period for ESA 4 (136). The Claimant also suffered a further UTI.
The decision of the Second Year Examiners, and the procedure for appealing that decision
"I regret to inform you that following your failure to satisfy the examiners in the MB ChB second year QE a decision has been made by the examination board that your course should be terminated. If you believe that there are circumstances relevant to your academic performance which you feel might lead to a review of their decision, you can state your case to the Academic Progress Committee. You should submit a letter from yourself setting out all of the matters that you feel are relevant to your performance in the examination…"
The notes for guidance include the following passages:
"If the Examination Board has decided to terminate a student's course, the Committee, after consideration of a student's case, may decide that a student is permitted to repeat a year.
"If you have been invited to state your case to the Committee, you should ensure that this is done succinctly and that you concentrate only on the matters strictly relevant to your case.
"The Committee will examine carefully your past academic history and take careful note of any assessment of capability provided on behalf of the Examiners.
"The Committee will follow set criteria, which you should show evidence of, as follows:
- Mitigation which may have led to your poor performance
- Continuing strong motivation for your chosen course
- That there is a good prospect of meeting the requirements of the course in the future.
"Material that will help the Committee to consider your case effectively will include one or more of the following only:
- Your statement of the circumstances affecting your academic performance. This should ideally be 1 page of A4 in length, and certainly not more than 2 pages
- A medical certificate or doctor's letter, where this is relevant to your case. If your case is dependent on medical circumstances, you will always be asked to provide written corroboration.
- If your personal tutor or other member of staff can add extra information that would support your case you may invite him/her to write to the Committee also. General personal references or letters of support are not necessary.
"You should include in your statement ALL of the circumstances that affected your performance. It may not be possible to accept evidence of mitigation at a later date if it was omitted from your appeal statement." (HB 134)
The Claimant's grounds for appeal to the APC
"I know for certain that my poor performance this year was due to an accumulation of issues. The first and most important issue I faced this academic year was something which I have made the University aware of, via Dr Hales, during the second semester of first year." (Emphasis added.)
"Although my academic performance has been poor this year due to the reasons I have mentioned above, I can assure you that it is not in my nature to let my studies slip." (Emphasis added.)
Apart from the brief reference to "the second semester of the first year", it is to be noted that the "mitigation" and other circumstances advanced by the Claimant to the APC were confined to the periods before the ESA 3 and ESA 4 assessments and the qualifying examination at the end of Year 2. No reference of substance was made by the Claimant to any reasons for any unsatisfactory assessment in Year 1, as she understood that she should only present "Year 2 mitigation."
Hearing before the APC sub-committee
"Darweena Gopikrishna w. Dr J Hales 1625
DG Mum was away from nine months – just me and sister and dad had to deal w. issues had to go home regularly, was in Sri Lanka when got results – not get flight until the 28th. Antibiotics for wisdom teeth– unable to get doctor's note, but any sessions missed, recorded on [illegible] GP and email details - hope to get it by tomorrow.
LM Yr 1 – what was happening in Yr 1 –
DG Probs facing dad started after ESA 1. Did spk. To Dr Hales. Was confident after QE - + ready to start Yr 2. Family probs - did not realise it wld get worse. Dad got worse Xmas hols - had a bad accommodation problem - cld not go anywhere to revise - Grandma had to go to Sri Lanka over Easter – still there now.
Dad went into hospital over Easter – things less stressful – but had to visit him in hospital as advised.
LM What do differently?
DG Now, problem unaware medication caused dad's behaviour now we know, we have the support – Dad improved, off medication since April.
LM Your insight into your abilities – signals you weren't coping
DG I will stay in Leic[ester] regardless of what is going on– this is more important– going home less often – if I have any problems will seek counselling, even from univ[ersity.] Did not make friends aware of problems.
JH House [in Sri Lanka] occupied by military. House [in Leicester] flooding.
DG For QE [Qualifying Examination 2] had infection – wisdom teeth – Felt nauseous halfway through exam– Put hand up Female [illegible - ? invigilator?] took me to bathroom – Was sick.
Now taking a lot of action to improve self study."
"Father's condition improved, therefore will not have to deal with so [illegible: possibly 'much.']
Limited coping strategies.
Signed Mr K Harrup, Dr L Morgan"
The decision of the full APC
KH read notes –
Mitigation – father's illness and side effects of medication – Situation became very difficult. She stressed in subgroup her mother was away … nine months – so no support for self or father. Has sought help for own health issues. Father's condition has improved. Family have rallied round. Coping strategies – limited?
Motivation – yes
Mitigation – yes
Progress – weak student in past –
Didn't cite any adjustments to learning style to help her succeed. –No confidence –
"University of Leicester
School of Medicine
Academic Progress Committee – Thursday, 1 September 2011
Student: GOPIKRISHNA Darmeena Year: MBChB2 L5
On considering the evidence presented for the student's appeal and their [sic] past academic history, the Academic Progress Committee came to the following conclusions:
Did the student display continuing strong motivation for their chosen course? YES
Did the student present mitigation that led to their poor performance? YES
Is there a good prospect of the student meeting the requirements of the course in the future? NO
Committee Decision Repeat Year Termination Upheld
Signed … Professor S Petersen (Chair)"
Findings made by the APC
The 'weak student' finding
The Claimant's appeal to the TCRP
The Procedural Rules of the TCRP
"1. ….The review will be conducted by a panel comprising three members of the academic staff of the University, excluding staff from the department in which the appellant is registered. …. The student may attend the meeting and may be accompanied by a member of the University. Personal attendance provides an opportunity for students to expand upon, and answer questions about his/her submission. The student's companion (if any) will be invited to make a brief statement on the student's behalf, but will take no part in the proceedings unless requested to do so by the Chair. The student's personal tutor and a representative of each department involved will also be invited to attend.…
Note: It is the responsibility of students to inform their personal tutor or head of department of any matter (whether of an academic, personal, medical or other nature) that may be relevant to their academic performance, and to supply appropriate evidence. Such information should be give[n] as soon as it is available."
2. Order of Proceedings
(1) The Chair or Secretary of the panel will give a brief resume of the student's academic career.
(2) The student will be asked if he/she wishes to elaborate on information contained in the appeal.
(3) The student's companion (if any) will be asked to make a brief statement on the student's behalf.
(4) The departmental representative(s) will be invited to make statements.
(5) The panel may ask questions of anyone present.
(6) The student will be asked if he/she has anything further to add to his/her submission.
(7) All parties will withdraw except for the Panel and its Secretary. The Panel will determine the outcome of the appeal in private consultation. It will determine either that the termination of course should be confirmed, or that termination should be overturned.
3. Participants' responsibilities
(1) The student is present in order to elaborate on the content of the appeal form, and to answer questions from the panel about any matter associated with the circumstances of the termination of course, including his/her academic history. It is the student's responsibility to ensure that substantiating evidence such as medical certification is available for inspection by the panel.
(2) The student is allowed to bring one companion to the appeal, who must be a member of the University….
(3) The personal tutor's role is to guide the student through the appeals process and to provide the Panel with any relevant information about the student's personal history.
(4) The Departmental representative is present to provide information about the academic background to the termination of course, including examination results and details of attendance and progress.
(5) The secretary of the panel is required to convene the members and to ensure that the student's appeal form is copied to all participants, ….
(6) The panel is required to examine all the evidence before it in order to decide whether new circumstances exist which, had these been known about earlier, would have led the Board of Examiners to recommend a course of action other than termination of course. The Panel will look in particular for evidence that but for the circumstances set out in the appeal form, the student would have satisfied the requirement of his/her course of studies. It will therefore examine carefully the student's past academic history and take careful note of any assessment capability [sic] provided by the departmental representative(s).…."
The Claimant's grounds of appeal to the TCRP
"You may only appeal if: (a) you are in a [sic] possession of evidence about the reasons for your examination performance which was not available to the board of examiners [or, in this case, the APC], or which was only partially available …. You should only complete these boxes if you have genuine new evidence. If you submitted evidence before the meeting of the [APC] but feel that it is it has not been adequately taken into account, this is a potential procedural irregularity, and you should complete box (b) below."
"You should also explain why it was not possible to inform your department about these circumstances before the [APC] met."
In this box the Claimant entered the following explanation:
"I wrote my appeal letter and focused on the meeting based on my second year results, it was only after I got my feedback back I felt the need to highlight how these issues have actually affected the most part of my time in University. I passed my qualifying examination in first year so the issues, although … mentioned, were not highlighted or brought to the University's attention. I was also unable to present some evidence to the APC as I had little time to gather the information and process it." [HB 75.]
Box (b) was left blank.
Dr Nandakumar's letter to the TCRP
"I am writing regarding Darmeena Gopikrishna, in support of her appeal to re-sit the second year of the MB ChB degree programme.
"I taught Darmeena in my role as Consultation Skills Foundation Course (CSFC) tutor during the period January to June 2011. This involved three-hour bedside clinical teaching sessions and small group discussions on a weekly basis at Leicester Royal Infirmary.
"I was very surprised to learn that Darmeena has found herself in the unfortunate position of having her course terminated, as she has been consistently excellent during teaching sessions. She attended all of our timetabled clinical teaching, and contributed well to group discussions. She had a friendly yet professional manner with patients, and demonstrated a keen interest and willingness to learn. These are observations I made consistently over the six month period, and I considered her overall performance to be above average when compared to other students in the group.
"I have recently had a lengthy discussion with Darmeena regarding her current position, and it is clearly evident that she is determined to do all that is necessary to be able to re-sit the second year and ultimately complete the MB ChB course. I genuinely believe that Darmeena does have the required ability and attitude to benefit from further year of training if she was given the opportunity to do so.
"I do hope that you will be able to consider the above information in support of Darmeena's appeal.
"Please don't hesitate to contact me if you require any additional information, or if I can be of any further help."
Dr Clarke's letter to the TCRP, and the hearing before the TCRP
"Academic record – 2 years – failed 5 of 7 assessments. Poor attendance and non-attendance in SSC. APC told about family problems etc. Didn't feel it was sufficient to explain it."
"not the sort of student who is [illegible] – her thinking [clear?]" [sic.]
Dr Gieve is noted to have asked "[Was this] different [from what APC knew?]" Dr Hales apparently said.
"APC letter doesn't say these problems substantive in Year 1. Being judged on ESAs in Year 1 too."
Then the Chairman said,
"That was remedied in Y1 QE. To put it bluntly, you are asking us to second-guess the medical educationalists and say they are wrong. We need something to base such a decision on."
The Claimant then said,
"A lot of probs for 2 years."
To which the Chairman's response, according to the notes, was:
"But they [APC] knew that."
The Claimant's response was to say that:
"APC didn't appreciate how much these problems have now been resolved. Have performed really well in clinical practice."
Re-GOPIKRISHNA Darmeena - 09071
Dear Sir/Madame [sic],
I have been a personal tutor to Darmeena Gopikrishna at the University of Leicester Medical School since March 2011 after her original tutor became unavailable to continue the position.
Since failing the ESA 3 exam, Darmeena contacted both myself and other members of the University faculty with regards to revision skills and examination technique.
Darmeena has the drive and attributes required to complete an MB ChB and go on to be a capable doctor. She has had some significant issues outside of University that will have understandably affected her academic performance.
Given the opportunity I believe Darmeena would progress well through the medical degree.
I was unable to attend the appeal meeting personally due to work commitments.
It may be noted that the fact that Dr Clarke used the past tense in the last sentence shows that he knew that the meeting had already taken place, and the context shows that he had known in advance of the fact that it was due to take place.
"If you are dissatisfied with the outcome you may be able to apply for a review of your appeal to the [OIA]…. On or before 15 December 2011."
The 'Hales Letter' and the 'Hales Reference'
"Here is the reference which I have submitted online for your UCAS application to study medicine at other medical schools."
The reference summarises the personal and family difficulties with which the Claimant had to contend whilst pursuing her studies, which have already been referred to above.
It continues as follows.
"In making its decision to terminate her course the Medical School's Academic Progress Committee stated that it did not question her motivation for medicine, or the seriousness of her mitigation, but that it could not be confident, based on her performance over her first and second years that her prospects of success were good. [The Claimant] had understood that she should only present mitigation pertaining to the year she had failed (i.e. the second year) and she therefore sought to explain the very real issues she had contended with in the first year when she made her subsequent appeal to the [TCRP]. The Chair of the [TCRP] would not consider any mitigation pertaining to the first year of study, stating that it was outside its remit to do so. [The Claimant's] course was therefore terminated, in part, on the basis of a relatively weak pass in the first year, without any consideration of the substantial extenuating circumstances with which she was contending throughout that period. Since her father's treatment she feels free to devote all her mental energy to her studies and very much hopes she can continue in her chosen career; she received some very good reports for her clinical work on wards."
The section of the letter up to this point, including the paragraph immediately above, has been referred to in these proceedings as the 'Hales Reference.'
Dr Hales then completed his letter to the Claimant with the following paragraph:
"I do recall being very taken aback that Prof Robin White [the Chairman of the TCRP] would not allow you to present the mitigation relating to your very real difficulties in Year 1: these had not been discussed at your meeting with the APC sub-committee. I was disappointed, after the meeting with the TCRP, that I had not challenged this unusual but very definite veto, but at the time it appeared that Prof Robin White and Professor Stuart Petersen [who had chaired the APC and was present at the TCRP hearing] were in complete accord that it was appropriate. I have not seen any university documentation stating that students could only raise mitigation relating to the year which they had just failed, but I took it that Prof White was better appraised [sic] of the rules. My own feeling was that the mitigation you wished to present, which related to your first year, was very relevant to the situation in which the APC was placing no confidence in your future prospects for success, not just on the basis of your failure in year two, but in the apparent academic weakness suggested by your need to sit the Qualifying examination in Year 1. I realised, when subsequently accompanying appellants in the same round of TCRP hearings, that under a different chair, students were permitted to talk about first-year mitigation."
The whole document is referred to as the 'Hales Letter.'
Part 2: The complaint to the OIA & the Rules of the OIA Scheme
Section 12 of the Higher Education Act 2004
"12. Qualifying complaints
1) "In this Part "qualifying complaint" means, subject to subsection (2), a complaint about an act or omission of a qualifying institution which is made by a person as a student or former student at that institution, … [omitting irrelevant words] undertaking a course of study, or programme of research, leading to the grant of one of the qualifying institution's awards.
2) A complaint which falls within subsection (1) is not a qualifying complaint to the extent that it relates to matters of academic judgement."
"3. The Scheme does not cover a complaint to the extent that:…
3.2 It relates to a matter of academic judgement.
4.1 A complainant must first have exhausted the internal complaints procedures of the HEI complained about before bringing a complaint to the OIA. In exceptional circumstances a reviewer may accept a complaint for review even if the internal complaints procedures of the HEI have not been exhausted if he or she considers it appropriate to do so.
4.5 The OIA will not normally consider a complaint where it considers that the substantive event(s) complained about occurred more than three years before the Scheme Application Form is received by the OIA.
6.1 Once a complaint has been accepted the Reviewer will carry out a review of the complaint to decide whether it is justified, partly justified, or not justified.
6.2 The review will normally consist of a review of documentation and other information and the reviewer will not hold an oral hearing unless in all the circumstances he or she considers that it is necessary to do so.
6.3 The nature and extent of the review will be at the sole discretion of the reviewer and the review may or may not include matters that a court or tribunal would consider.
6.4 The normal review process for dealing with a complaint will be as follows:
6.4.1 The Reviewer will decide what further information (if any) he or she needs for his/her review; this may include a requirement that the HEI provides a copy of the information that it considered at the final stage of its internal complaints procedures (and any related records) and at any time the reviewer may require the parties to answer specific questions and/or provide additional information.
6.4.2 Prior to issuing a formal decision the Reviewer will (unless the Reviewer considers it unnecessary to do so) issue a draft or preliminary decision (and any draft/preliminary recommendations).
6.4.3 Where a draft decision is issued the parties will be given the opportunity to make limited representations as to any material errors of fact they consider have been made and whether the draft recommendations are practicable.
7.3 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."
The Claimant's original grounds of complaint to the OIA
'17. …. It does seem that the university have based their reasoning on the basis that there [is no] "good prospect of the student meeting the requirements of the course in the future". How the University arrived at this decision is unknown. The appellant seems to feel that this was on the basis that she had to re-sit an examination in her first year of study, which she duly passed. This was down to the problems encountered in the first year of study….
'18. …. [The Claimant] passed her first year examinations also and managed to progress to the second year, therefore it is submitted that the university have failed to take into account a variety of factors in arriving at this most puzzling decision. The only basis for this decision that the appellant understands is that it could have been down to her first year of study whereby she was required to re-sit an examination she duly passed. This point was raised in the second appeal hearing whereby [the Claimant] aimed to explain her circumstances clearly to the Panel. However, she was not given the opportunity to do so as the Panel deemed this information immaterial, yet [it] seems the basis for the decision made by the University to terminate her course of study.
'19. It is therefore contended that the appellant has not had a fair and formal appeal procedure adhered to by the University and criteria has [sic] been applied to her case that is [sic] irrational.'
i) The Claimant's future prospects were assessed by the APC on the basis of poor performance in her first year, which was an irrelevant consideration as,a) such poor performance was the result of the problems amounting to 'mitigation' for Year 1, and not weakness in terms of ability;andb) she had in any event passed the qualifying examination for that year, demonstrating that she had been able to overcome such problems.
ii) When, on appealing the "future prospects" finding to the TCRP, she tried to explain the Year 1 problems, the Panel would not permit her to do so, as they deemed it immaterial.
The Claimant's case was thus clearly being put on grounds both of irrationality and procedural unfairness. Ms McColgan, for the OIA, observed at paragraph 69 of her skeleton argument that,"… given that the target of these proceedings are the Defendant's alleged shortcomings, in its approach to the complaints made to [the Defendant] by [the Claimant] the focus of this Court needs to be on what [the Claimant] was complaining of at the time of her complaints to [the Defendant.]" (Original emphasis.)
"… in reaching the conclusion that the Claimant did not have a good future prospect, the APC took into account year 1 poor performance but not year 1 mitigation, thereby failing to take into account matters essential for a fair decision." (Skeleton argument for the Claimant paragraph 39(ii).)
This point was addressed by counsel for the OIA at paragraph 51 of her skeleton argument as follows:
"As to [the Claimant's] paragraph 39(ii), whether or not the APC unreasonably failed to take into account Year 1 mitigation (and it is not accepted that this was the case), [the Claimant's] complaint against the OIA concerns the OIA's alleged unreasonable failure to conclude that the [University] had failed to take into account matters essential for a fair decision in concluding that [the Claimant] did not have a good future prospect. … this was not a matter clearly raised with the OIA in the many pages of complaint made on [the Claimant's] behalf. The Claimant not having complained to the OIA about the APC's approach in the terms set out in §39(ii), the OIA cannot reasonably be criticised for having failed to reach the conclusion sought by the Claimant." [Emphasis added.]
'New evidence': (1) the psychiatric report
"The University takes the view that the [OIA] has been established to provide a free and independent complaints service for students. Only in the most exceptional circumstances (such as the disclosure of significant new evidence not previously available) would the University re-open the case after issuing a Completion of Procedures letter. We are satisfied that … [the Claimant's] case can most appropriately be dealt with by the OIA. If the OIA believes that the issues you have raised recently are relevant to its consideration of the case, it will ask us about them and we will of course respond." (page 169). (Emphasis added.)
The significance of the way in which the approach to the new evidence was put on behalf of the University in the passages underlined above will be considered at a later stage.
The University's letter of 29 March 2012
Receipt of the Hales Reference by the OIA
"On 24 May 2012, we received four emails from the Claimant, …. The second email attached a document ("the Hales Reference") which was not headed, dated or signed, but which had "Dr Jonathan Hales, Senior Lecturer" at its foot…. The Claimant has explained in her second witness statement that the Hales Reference was written to support her application to an alternative university." (HB 791)
"…. [The Claimant] had understood that she should only present mitigation pertaining to the year she had failed (i.e. the second year) and she therefore sought to explain the very real issues she had contended with in the first year when she made her subsequent appeal to the [TCRP]. The Chair of the Panel would not consider any mitigation pertaining to the first year of study, stating that it was outside its remit to do so. [The Claimant's] course was therefore terminated, in part, on the basis of a relatively weak pass in the first year, without any consideration of the substantial extenuating circumstances with which she was contending throughout that period."
"The attached letter I sent to you was written confirmation from senior university staff member (Dr Jonathan Hales) who accompanied me to the TCRP meeting. He was a first-hand witness to the injustice that took place in the meeting. The medical school used my weak first-year pass as a shield defending their decision, claiming that I was academically incapable. I was not allowed to speak about mitigation I had in first year, which was the reason behind my weak pass and them believing I was academically incapable. The TCRP make the final decision based on the information given by the medical school about my weak first year pass, without taking into consideration my first year (valid and accepted) mitigation. Had the TCRP listened to my reasons, and allowed me to speak and give reasons for my weak first year pass, I am confident that they would have accepted my case.…The senior staff member who wrote this reference, Dr John Hales, is willing to testify this. Please make an unbiased decision after considering this information."
It should be noted that in a witness statement made on the first day of the hearing of this application, 21 October 2014, Dr Hales said that he had told the Claimant that he was not able to assist her in any matter involving litigation. In the same witness statement, however, he said that he was aware that the UCAS reference (the Hales Reference) he had provided to the Claimant had been given to the OIA by her. It has not been suggested that it was not open to the OIA to make enquiries of him, if it was in any doubt as to the authenticity or content of the document. On its face the document provided corroboration of the Claimant's complaint in the original grounds, from a reputable source within the University.
"My understanding is that she felt unprepared for the appeal hearing… [she] had not received feedback following her unsuccessful APC although she had asked for this; the Chair was on holiday. She was therefore unclear about why she had failed to persuade the committee of her ability to succeed if given another chance."
"Thank you for the email that you sent to the OIA on 24 May 2012. I note that you have advised the OIA that you have chosen to elect Sinclairs solicitors as your representatives in this matter. As you have chosen to have a representative I will only deal with your representative directly during the course of my review and therefore any further representations should be made through your representative. The OIA does not deal directly with a complainant and their representative in order to prevent any confusion
"… The OIA has received an email directly from Miss Gopikrishna on 24 May 2012 providing further evidence. I have advised Miss Gopikrishna that where a complainant engages a representative the OIA will then only deal directly with the representative in order to prevent any confusion."
'New evidence' (2) The report of Ms Allen, Educational Psychologist
"It is likely that throughout her academic career Darmeena's cognitive strengths had masked her weaknesses. However Darmeena has faced considerable personal stress in the last 2 years since leaving school to go to University…Darmeena has been forced to deal with the considerable personal challenges due to her father's illness…this has challenged Darmeena academically and is likely to have affected her concentration which in turn will have impacted upon her significantly weak processing skills" (pp.92-93)
The provisional decision of the OIA
The enquiry by the OIA as to the possibility of the University re-opening the case
"… I do not believe we are in a position to issue a Formal Decision at this point, as I have some concerns about the information which was made available to [the Claimant] after the APC meeting, about its reasons for making its decision, prior to her appeal to the TCRP. At this point I'm not in a position to say with confidence that her preparation for her appeal was not affected by the lack of reasons in the letter of 1 September. I have also noted that her personal tutor was not in attendance at either meeting, and that statements from him and another tutor appeared to express confidence in [the Claimant]'s ability to pass the course."
Miss Nuckley then drew attention to the "new evidence" asking whether the University wished, exceptionally, to reconsider the Claimant's circumstances in the light of the conclusions of the psychiatrist and the psychologist (399). She said,
"… 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.…" (Emphasis added.)
"If the University does not wish to make such an offer at this time, we will then continue with our review." (HB 399)
The response by the University on 22 August 2012 declining to re-open the case
"Ms Gopikrishna submitted an appeal which included submissions and evidence in support, focused very much on the third criterion considered by the APC, dealing with the prospect of meeting the requirements of the course in the future (see, for example, the letters from Dr Nandakumar and Dr Clarke.)" (Emphasis added.)
(The University themselves were therefore still labouring under the misapprehension that Dr Clarke's reference had been before the TCRP. How, or why, they could have been has not been explained.)
"At this point she did not complain that a lack of detailed grounds from the APC had hindered her ability to appeal. Further, having considered the detailed submissions made on her behalf by solicitors during the process of the OIA complaint, the University cannot see in what way it is said that her appeal would have been different if detailed grounds had been provided by the APC.
"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 APC 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.
"Ms Gopikrishna's case was fully considered by the TCRP. As stated above, she provided significant evidence in support of her appeal and addressed the key issue. The TCRP considered the submissions and evidence, but, again exercising its judgement, it concluded that the decision of the APC should stand.
"The subsequent material supplied by [the Claimant] is not relevant to the issue of whether the decision of the TCRP should be set aside… 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…."
The error of fact made by the University and by the OIA
The Complaint Outcome of February 2013
"In April 2012 [the Claimant] went to see and spoke to Prof Robin White, the chair of the TCRP, During that meeting he did not wish to disclose much, … [but] was concerned that our client was without a personal tutor for most of her time at university, and admitted that this was a mistake on the part of the university.
"Further, in the same month our client went to speak to Prof Gurman who had chaired a parallel TCRP [i.e. involving other students] He stated that if she had new evidence, such as the doctor's report and psychology report, the previous TCRP decision would be invalid as it did not have the correct information to make an informed decision at the relevant time."
"… rather than engaging with our review processes. …. We note that this is the second occasion you have taken this step during the course of our review of [the Claimant's] complaint."
Ms Mitchell later said,
"Your letter does not set out the actions you expect us to take in response to your letter, in accordance with the pre-action protocol. We assume that you are asking us to issue a new Decision upholding your client's complaint, although you have not engaged in the final stage of our procedures. We decline to do so, for the reasons set out in this letter."
Ms Mitchell then made extensive reference to the procedures which the OIA follows. Turning to the new evidence in the form of the psychiatrist's and psychologist's reports Ms Mitchell pointed out that the University had had no medical evidence or information before it to suggest that the Claimant was suffering from a disability when it made its decision. There was no suggestion that the University ought to have been aware, when it considered her appeal, that the Claimant was suffering from mental health-related disability, or from a specific learning disability. The OIA's conclusion was that the contents of the two reports could not render the University's decision unreasonable, as it had been made before those reports were prepared. However, medical evidence which
"… for good reason has become available after a decision has been made …"
could be supplied to the University for its consideration. Although no such good reason had been supplied by the solicitors for the Claimant for the evidence not being available at an earlier stage, the OIA had invited the University to consider whether it wished to re-open the Claimant's appeal in the light of that new evidence. It had declined to do so. The OIA therefore said,
"Since its internal appeal process was completed before the evidence became available, and the University has declined to re-open that process, we have confined our review to the appeal process which was concluded with the Completion of Procedures letter issued on 15 September 2011."
Ms Mitchell then made reference to that course of action being in accordance with the OIA's Rules and with two decisions of the Court of Appeal.
The University's refusal to re-consider its decision not to undertake 'an exceptional review'
"… During the course of the OIA's investigations into your client's complaint the University was asked whether it would consider reviewing your client's case on an exceptional basis. It declined to do so. The OIA then proceeded to consider your client's complaint and determined that it was not justified.
"The letter confirming that an exceptional review would not be undertaken did not refer to a right of appeal or the right to submit a complaint because all the University was doing was confirming that it would not be undertaking an exceptional review i.e. it would not reconsider the decision about which your client made complaint.
"The University's position remains that its original decision, which the OIA has decided not to interfere with, will not be the subject of an exceptional review" (HB 197-198; 420-421).
"An appeal is the final process within the University's internal procedures for review of its decision, whether these are decisions concerning academic, discipline or complaints matters. Having provided every opportunity for a student to submit any information they wish to in support of an appeal, the University adopts the general principle that where its internal procedures have been completed through the conduct of an appeal then a matter will not be re-opened. In addition to this, it is relevant that where the academic decision appealed against is a course termination, and the appeal is not successful, then immediately following the appeal the termination of registration is confirmed. The subject of the appeal is therefore no longer a student of the University. Consequently the University's Regulations no longer apply to them and therefore the internal procedures which our Regulations dictate are no longer available to them."
(The point in the latter paragraph may conveniently be called the "former student point.")
The letter continued as follows.
"Almost by definition the University does not have a formal procedure to deal with consideration of evidence after the formal University process has been completed.
"In Ms Gopikrishna's case the University was invited to reconsider her position and chose not to do so. The University does not accept that by declining to engage further with this complaint (outside its processes) it was making a decision that the OIA can examine. (Emphasis added.) This is for the following reasons:
"The invitation by the OIA to reconsider was made in the context of the OIA's own complaint procedure. In effect the student is seeking to challenge the University's approach to dealing with the OIA. We do not accept that there is any jurisdiction to do so as this is not a complaint of which the OIA was seized; ….
"The University believes that its practice in not reopening cases once the final internal procedure is completed is a necessary one. It ensures that the same rules are applied consistently and with certainty to all students. The University believes that it is perfectly fair and reasonable to be clear that the procedures do ultimately have an end point…" (HB 428-430; 494-498).
This letter was not sent by the OIA to the Claimant.
Part 3: The OIA's findings in its Final Decision
The decision under challenge
i) The validity of the University's decision set out in its letter dated 15th of September 2011 that the TCRP had correctly upheld the decision of the APC not to allow the Claimant's appeal against the decision that her course should be terminated.
ii) The validity of the University's refusal to reconsider its position in August 2012, in the light of the new evidence regarding factors which may have affected the Claimant's performance.
"In deciding whether this complaint is justified we have considered whether the University applied its regulations properly and followed its own procedures correctly. We have also considered whether any decision made by the University was reasonable in all the circumstances."
"We include all material which we consider necessary to make a decision about the complaint."
"We cannot put ourselves in the position of examiners in order to re-mark work or pass comment on the marks given. However, we can look at whether the University has correctly followed its own assessment, marking and moderation procedures, and whether there was any unfairness … in the decision-making process." [Emphasis added.]
Observations as to tutors
"We noted that Miss Gopikrishna did email her tutor, Dr Clarke, on 15 August 2011. His reply on 22 August indicated that he would be unable to attend the APC sub-committee meeting as he would not be in the UK. He added that, "I do not think I would be much help either". …. We appreciate that Miss Gopikrishna may have been somewhat disappointed that her tutor did not feel that his presence would be of assistance to her. However, Miss Gopikrishna was able to obtain the assistance of Dr Hales. It is clear that she had spoken to Dr Hales about her personal circumstances as they occurred. In the circumstances we can see no disadvantage caused to Miss Gopikrishna arising from the fact that she obtained support from Dr Hales rather than Dr Clarke."
The observation that "Miss Gopikrishna may have been somewhat disappointed that her tutor did not feel that his presence would be of assistance to her" is not qualified, as perhaps it might have been, by the reflection that the OIA had been informed (from the time at least of the additional grounds in March 2012) that Dr Clarke had only been her tutor for a very short time – about half the second semester of the second year. Moreover, from the tone of the reference to the Claimant's subjective "disappointment" that "her tutor" did not feel that his presence would be of assistance to her, it might possibly be thought that the OIA was suggesting that that might be consistent with the tutor's perception of the Claimant as a weak student. Whether the OIA intended to make such a suggestion or not (and I do not make any finding on this point, as it was not dealt with in evidence or argument at the hearing) it would have been an incorrect suggestion to have made, as that was not his view.
The OIA's scrutiny of the APC stage
"It is clear that Miss Gopikrishna experienced some very difficult personal circumstances whilst undertaking her studies. We accept that these must have been very distressing for her. With hindsight, it appears unfortunate that Miss Gopikrishna did not consider suspending her enrolment while she and her family were attempting to resolve some of the difficulties. Although we are sympathetic to the challenges which pursuing her academic studies at this time must have posed, we are unable to conclude that the APC's decision was unreasonable. The APC was entitled to consider Miss Gopikrishna's performance history in making an assessment as to the likelihood of her being successful on the remainder of the course. We are satisfied that the APC did consider the information made available to it. We are unable to interfere with the APC's academic judgement that Miss Gopikrishna would not be likely to complete the course successfully. We note that the University's appeal procedures do not permit students to challenge the University's academic judgement."
This passage was described in argument by counsel for the OIA as "the nub" of the decision. The question was, she said,
'Was that so unreasonable a decision as to be susceptible to correction by judicial review?'
"We are critical of this omission, and suggest that the University should amend its practice to provide students with a statement of the APC's reasons within the letter informing them of its decision. Setting out the reasons for a decision can help students to understand and accept it. In cases where the student wishes to appeal the decision, providing a statement of reasons can assist them on focusing their submissions on matters which they feel may have been overlooked or misunderstood by the decision maker. In this instance it might have been helpful for Miss Gopikrishna to have been explicitly advised that she did not need to further evidence [sic] her mitigating circumstances, and that the APC was concerned that she had limited coping strategies and was unlikely to complete further examinations successfully." (Emphasis added.)
"The grounds of appeal to the TCRP did not allow Miss Gopikrishna to base her appeal on a challenge to the APC's academic judgement on this point. We therefore conclude that it was unlikely that further elaboration of this academic judgement would have assisted Miss Gopikrishna in preparing her appeal."
"Motivation – yes. Mitigation – yes. Progress – weak student in past – didn't cite any adjustments to learning style to help her succeed.– No confidence – termination upheld." (Emphasis added.)
The OIA's treatment of the TCRP stage and the error in respect of Dr Clarke
"Miss Gopikrishna contacted her personal tutor for assistance in preparing for submission to the TCRP, but says she did not receive a reply. We note however that Dr Clarke did provide a statement in support of Miss Gopikrishna to the TCRP."
"… from her personal tutor and another member of academic staff which were positive about her ability."
The other member of staff referred to can only have been Dr Nandakumar.)
"… sought to explain the very real issues she had contended with in the first year when she made her subsequent appeal to the [TCRP]. The Chair of the Panel would not consider any mitigation pertaining to the first year of study, stating that it was outside its remit to do so. [The Claimant's] course was therefore terminated, in part, on the basis of a relatively weak pass in the first year, without any consideration of the substantial extenuating circumstances with which she was contending throughout that period."
"[the Claimant] states that the TCRP did not listen to what she had to say and that she was 'rudely interrupted on several occasions'. Since there is no recording of the meeting, it is not possible for the OIA to reach any decision as to whether the conduct of this meeting was inappropriate. We note that the (undated) statement of support from Dr Hales who was in attendance on 14 September, which has been provided to the OIA [the Hales Reference], does not refer to any inappropriate behaviour in the meeting. Nor do the Secretary's notes indicate that Miss Gopikrishna or Dr Hales wished to make additional statements but were prevented from doing so. Nevertheless we take this opportunity to encourage the University to reflect on this feedback."
In her skeleton for the OIA Ms McColgan, at paragraph 63, made the following point.
"Crucially, however, what was missing from the [Hales Reference] was the text on which [the Claimant] now seeks to rely, in which Dr Hales states that he was surprised by the fact that [the Claimant] was not permitted to talk about Year 1 mitigation and that was not his experience of other hearings."
The point of substance which the Claimant and Dr Hales had both made was not to do with "inappropriate behaviour" in the sense of rudeness or discourtesy. Nor was it to do with Dr Hales's surprise, nor his experience of other hearings. It was the refusal of the Panel, through the Chairman, to hear mitigation relevant to Year 1, on the basis that it was "… outside their remit." That point was not commented on by the OIA, not having been raised by it as an enquiry, it seems, with the University. Ms Mitchell in her second witness statement for the OIA simply states that,
"We did not find [Dr Hales's account] persuasive when balanced against the contemporaneous documentation."
As a matter of fact, the secretary's notes are arguably quite consistent with Dr Hales's account in the Hales Reference. It was at the stage when Dr Hales (in the second of the only two contributions from him recorded in the notes) raised the point that the APC had judged the Claimant on Year 1 ESAs that the Chairman said,
"… that was remedied by the Year 1 QE. To put it bluntly, you are asking us to second-guess the medical educationalists …."
At that, discussion of that matter ended. If I were required to make a finding of fact on the point, I would find that Dr Hales's account, first given within a month of the event, was reliable and also consistent with the contemporaneous documentation, in the form of Mr Siesage's notes. Whether my view of the reliability of Dr Hales's account is correct or not, the fact remains that the "Year 1" mitigation point being made by both the Claimant and Dr Hales was simply not addressed by the OIA in its decision. That was the 'crucial' point. The suggestion that that omission may be excused because the Hales Reference did not contain the details about surprise and experience at other hearings is one which I do not accept.
The OIA's decision on the 'new evidence' and the 'fresh decision' point.
"On 9 August 2012 we invited the University to indicate whether it would be willing, exceptionally, to offer to reconsider [the Claimant's] circumstances based on new information which she has supplied to the OIA, so resolving her complaint to the OIA."
"We do not consider that the University's letter of 22 August 2012 constitutes a fresh decision which ought to be subject to the OIA's review process. In particular we note that [the Claimant] has not engaged in any further formal complaints or appeal procedure at the University giving rise to a new decision. Paragraph 4.1 of the OIA's Rules which apply to [the Claimant's] complaint provides 'A complainant must have first exhausted the internal complaints procedures of the HEI complained about before bringing a complaint to the OIA.' [The Claimant] has not met this requirement in respect of her complaint to the OIA that the University has acted unreasonably in refusing to consider her new evidence. Indeed, there is no process open to her to complete since she is no longer a student at the University."
"In exceptional circumstances a reviewer may accept a complaint for review even if the internal complaints procedures of the HEI have not been exhausted, if he or she considers it appropriate to do so."
i) The letter was not a "fresh engagement" with the issues raised by the Claimant, but simply a re-assertion of "the University's previous position." (paragraph 42)
ii) It would not be "proportionate or appropriate" for the OIA to engage in a further review having invited a University to consider an alternative resolution of a complaint when such an invitation has been declined "without engaging any further process to consider the merits" of the student's case. The prospect of "triggering a new review process may deter Universities from engaging positively with the OIA's early resolution initiatives." (paragraph 43)
iii) Whilst matters concerning possible breaches of the Equality Act 2010 were not matters for the OIA, the OIA had decided that the University was neither unreasonable nor in breach of its own procedures in refusing to re-consider the Claimant's case in the light of the new evidence. The Claimant had exhausted the relevant procedures. As a former student the Claimant had no right to engage further in the University's procedures. (paragraph 45)
iv) The new evidence was obtained after the expiry of the time limit set by the University's regulations, and the Claimant had given no "compelling reason" to explain why it was not obtained in time. (paragraphs 46, 47 & 48)
v) The pre-course Student Agreement signed by the Claimant before beginning her course had provided that she should inform the Medical School promptly of any health concerns (including mental health problems) or of any learning difficulty, including dyslexia. Thus the Claimant should have been "alerted to the importance of reflecting upon her own state of health." (paragraph 49)
vi) There was no "compelling reason" in the new evidence to explain why the Claimant had not sought support and diagnosis of her conditions whilst a student at the University. "In the absence of any evidence that the student's disability itself prevented the student from engaging with the correct procedure at the correct time, we are not persuaded that the University has an obligation to consider waiving its time limits for the submission of evidence." (paragraph 50)
vii) Thus, even if the OIA considered that the University had made a fresh decision in its letter of 22 August 2012, which was reviewable under the OIA scheme, that decision "was reasonable in the circumstances." (paragraph 51)
Part 4: The application for permission to apply for judicial review
The original grounds
i) That the OIA had failed to consider that the University's decision of 22 August 2012 was a 'fresh decision' open to review by the OIA.
ii) That the OIA failed properly to consider the University's failure to take adequate account of the Claimant's disabilities in making its decision of August 2012.
iii) A closely-related point to (2) was that the OIA had also failed to consider the duties of the University under the Equality Act 2010 to make reasonable adjustments for students under a disability, and failed to consider and comply with its own public sector equality duties.
Reference was made to "future academic progress" not being a criterion within the University's regulations (a point not pursued at the substantive hearing), and whilst a reference was made to "first year failings" wrongly being taken into account by the APC, the point made in the Claimant's original grounds of complaint to the OIA was not developed clearly.
Refusal of permission by Stuart-Smith J
"There was no basis upon which the OIA could reasonably consider that the new information provided was sufficiently persuasive to have resulted in the original decision of the APC being overturned, because that question was not before the OIA since the relevant information had not been before the TCRP. The University had no obligation to consider the information when it was provided."
Permission granted following an oral hearing on amended grounds
Grounds in respect of which permission was granted
i) The 'fresh decision' and 'former student' point. The reasoning of the OIA was open to challenge in respect of its conclusion concerning the letter written by the University dated 22 August 2012 by which the university declined to accept an invitation from the OIA to consider whether the University would reconsider the Claimant's circumstances, in the light of (a) the psychiatric report, and (b) the report of a clinical psychologist, which the Claimant had sent to the OIA earlier in 2012. One of the OIA's conclusions was that in declining that invitation the University was not taking a fresh decision which it had jurisdiction to review or overturn, insofar as it was made in a complaint by a former student. The learned deputy judge said that conclusion was "arguably wrong." Section 12 of the Higher Education Act 2012, he said, expressly contemplates the making of a complaint by a former student. The Claimant was at all material times either a student or a former student. Thus, in so far as the OIA's conclusion that as a former student she had no locus to make a complaint, the OIA may have been in error. The judge also said that the matter was not straightforward: he made reference to the possibility of "a complaint within a complaint." Nevertheless, he said that it was arguable that "the decision of 22 August" fell within the provisions of section 12 above, as it was at least arguable that the University had a discretion,"… recognised in the letter of 23 March 2012, [HB 169] to re-open the case in the most exceptional circumstances…."He added that;"If that is the case, then that assists the argument that the decision of 22 August was a decision concerning a student (or former student) and was an act, or perhaps an omission, in relation to a former student that fell within section 12." [HB 646 paragraph 27-29.]
ii) The 'fresh decision' and 'exceptional circumstances' points and discretion to re-open. A second arguable issue, the judge held, arose in respect of the OIA's decision that, despite the reports produced by the Claimant, the university had correctly concluded that there were no exceptional circumstances justifying the exercise of its discretion to re-open the case. The learned judge said that in that respect,"… the grounds raise an arguable issue as to whether the [Defendant] properly considered whether the University …" [in its turn] "… had properly considered whether and how to exercise its discretion to re-open the Claimant's case in the light of the new evidence. I say no more about the substance of that, which will be a matter for the substantive hearing." [ibid. paragraph 30.]
iii) Academic judgement. The judge considered the view taken by the OIA of the original decision-making process by the University as 'an academic judgement' with the result that the complaint was not a qualifying complaint, having regard to section 12(2). The judge made reference to the judgment of Males J in the case of Reg (Mustafa) v OIA  EWHC 1379 (Admin), and to his observation that,"… not every judgement by an academic necessarily is 'academic' … and that, even if it is, there is at least an argument that a perverse or irrational exercise of judgement may fall within the OIA's jurisdiction."Counsel's point, he said, that the university's conclusion, adverse to the Claimant, that she did not have a good prospect as a student of meeting the requirements of the course in the future, was a conclusion which purportedly took into consideration the Claimant's mitigation. If so, that arguably took the matter outside the range of an academic judgement [ibid. paragraph 31-37].
iv) Procedural unfairness. The last ground upon which the judge expressly gave leave referred to the failure by the OIA to show the Claimant the letter sent to it by the University on 11 June 2013. He held that it was arguable that that failure was procedurally unfair and had deprived the Claimant and her representatives of the opportunity to put forward matters to the OIA,"… as to how they should respond to the University's refusal to treat her circumstances as exceptional." [ibid. paragraph 37-38]
v) For completeness I should deal with the Equality Act 2010 point. Permission was not expressly given on that point, nor does it seem to me that it was implicitly included in anything said generally by the judge in granting permission. The OIA and the University accept that as public bodies each is bound in the discharge of their respective functions by the relevant provisions of the Equality Act 2010. It is clear, however, from the decision of the Court of Appeal in Reg. (Maxwell) v OIA  EWCA Civ 1236 that the OIA is under no obligation to determine complaints that universities have failed to comply with their obligations under those provisions. As Ms McColgan put it: the issue for the OIA (in Maxwell) was neither to determine whether the claimant in that case had in fact been the victim of disability discrimination nor whether the relevant university was liable to her for such discrimination. Such matters are for the courts. The OIA's task was to review her complaint, which included a complaint of discrimination, and to see whether the University's decision was reasonable in all the circumstances and was justified, and, if so, what recommendation should be made to the University. The OIA was established under the 2004 Act not as another court of law or tribunal, but as a more "user-friendly" and affordable alternative procedure for airing students' complaints and grievances. No significant time was spent on the Equality Act 2010 point at the hearing, and in the end all parties understandably seemed to regard it as a distraction from the issues of substance which arise in the case.
Applications in respect of further evidence at the hearing
Summaries of the additional evidence
"I chaired the APC meeting and it was my standard practice always to review the Academic Summary which appears at pages 142-143 of the hearing bundles. This document was before the APC and contains details of the mitigating circumstances for her Year 1 results. When considering the claimant's prospects of meeting the course requirements the APC would have considered this document."
"I do not recall the claimant being rudely interrupted. The nature of the TCRP means that there is a degree of dialogue with the student during its course as it is important for students to be able to say what they want. I have attended numerous TCRPs and in my experience students are always permitted to speak and say what they want. The TCRP members listen to what a student has to say, but what weight they attach to their statements is a matter for the TCRP."
"6. The claimant challenged the decision of the APC to terminate her studies on the basis of the grounds … of appeal…The TCRP's job was to decide whether there was sufficient mitigation to set aside the APC's decision. The claimant did not claim there was procedural irregularity or bias….
7. The TCRP considered the material that was before the APC and also considered the claimant's grounds of appeal in detail, along with supporting documentation. The letter of Dr Nandakumar… was before the TCRP and was considered by it.
8. I have been asked whether the role of the TCRP was simply a rubber stamping exercise in respect of the decisions arrived at by the APC. I did not and do not consider that to be the role of the TCRP. Its role was to scrutinise the grounds advanced by the student and to determine, applying the criteria laid down in the university rules, whether there was a sufficient basis to interfere with the decision of the APC. The TCRP was not to make the decision afresh or to impose its own views and operated essentially an appellate jurisdiction to ensure that if there were any errors in the APC process, or there was additional material of relevance, such matters were considered. It is fair to say that in general the TCRP would have hesitated to disagree with the academic judgement of the APC because the APC was uniquely qualified to reach conclusions in relation to the claimant's prospects. However, it would have done so if it had concluded: (1) that the Claimant's mitigation (and any supporting material) was new and significant or greater weight of the APC had believed it to be; or (2) that the APC's academic judgement was clearly perverse in light of the material supplied by the claimant."
"I have been asked whether the TCRP considered the issue of the claimant's first year mitigation. I do not have an actual recollection of how the panel dealt with this issue. However, I can say is [sic] that in an appeal of this nature (concerning the assessment of the APC that the student would be highly unlikely to complete the programme), any panel I chaired would consider the whole academic record to date, including any mitigation in relation to an earlier failure, and the explanations for that. This is because we would give the student considerable credit for having passed the first-year qualifying examination. We would certainly never have refused to admit anything the student wanted to put before us, and we plainly did have the full academic record including explanations for the first year failure before us."
"12. I do recall being very taken aback that Prof Robin White, chair of the TCRP, would not allow the claimant to present the mitigation relating to the very real difficulties that she had experienced in Year1. This is because it was made plain to both the claimant and to me that the mitigating circumstances to which she wanted to refer in Year 1 were irrelevant. We were effectively vetoed from arguing that Year 1 was a year during which she encountered significant mitigating circumstances.
"13. It was my view that this mitigation was very relevant to the situation and in particular to address the arguments … employed by the APC … that they had no confidence in her future prospects of success. It was not appropriate on the one hand to find against her for the poor performance in Year 1 but on the other to fail to take into account the strong mitigating circumstances that she had over this particular period.
"14. When the TCRP hearing concluded I expressed disappointment that I did not challenge this unusual but very definite veto. I have felt for a long time that the approach adopted by the Chair, Prof Robin White, was not appropriate in this instance. It seemed particularly inappropriate, given that Prof Peterson, the APC representative at the TCRP appeal, had cited the Claimant's need to take the first year re-sit examination as one of the factors that led to the APC's decision that her course be terminated.
"15. Some months after the claimant's TCRP appeal, and shortly before the next round of appeals in which I was to accompany students, I sought clarification from Mr Nigel Siesage, Secretary to the TCRP, as to whether a veto on hearing mitigation from previous years had become normal practice documented in the TCRP regulations. Mr Siesage said that he, like me, recalled being surprised by the refusal to hear mitigation pertaining to the Claimant's first year of study and was unclear as to whether or not this was documented TCRP procedure.
"16. I raised my concerns in relation to the claimant's case with Christine Fyfe, one of the University's Pro-Vice-Chancellors, who advised me not to be involved with the process. …."
Ruling on admission and permissible use of the additional evidence
i) it repeats information which was in their possession before the decision was made: plainly, that decision has to be evaluated solely on the information which was before the OIA when it was taken;
ii) it becomes admissible under the principles enunciated in E v Secretary of State for the Home Office  QB 1044, CA, in order to show that the decision was reached on an incorrect basis of fact. I shall deal with the effect of this case in greater detail below.
I cannot make findings of fact where direct contradictions exist. To the extent, however, that I have to evaluate the weight to be given to any matter contained in any of the lately-filed witness statements, there are general considerations to be borne in mind from the most authoritative sources. In Onassis v Vergottis  2 Lloyd's Rep 403, Lord Pearce said at 431:"It is a truism … that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance."
In the case of The Ocean Frost  1 Lloyd's Rep 1 at 57 Robert Goff LJ (as he then was) made the following well-known observation when dealing with the approach he adopted when considering the credibility of witnesses:"Speaking from my own experience, I have found it essential … when considering the credibility of witnesses, always to test their veracity by reference to the independent facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. … where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth."
Arnold J in the case of BRUTT Trade Marks  RPC 19 at , having made reference to Goff LJ's observations in The Ocean Frost, said,"Thus before addressing the conflicts of evidence the fact-finding tribunal should first consider what is common ground, what is asserted by one party and not contested by the other, and vice-versa, and what is shown by the documentary evidence. Once these matters have been ascertained and put into chronological order, it is frequently much easier to resolve the remaining conflicts. In resolving such conflicts it is of assistance to consider which version of events is the more likely."
i) Even if it would be desirable or apparently necessary to do so, I cannot resolve any direct conflicts of primary fact between the accounts of these witnesses, if each claims to have a distinct and contradictory recollection, upon the basis of witness statements alone. Where the difference is more nuanced, however, Blake J held it to be appropriate in the judicial review case of Reg. (Lunt) & Anor v Liverpool City Council & Anor  EWHC 2356 (Admin) to make limited findings as to which of different witnesses' versions of events were more or less compelling. He said,"I do not need to resolve all the differences in the witness statements, although I find the witness statements of Mrs Lunt, Mrs Price and Mr Bruce compelling, whereas that of Mr Edwards is far less clear and precise, and his reports have been shown to be inaccurate in a number of ways on one or two other topics."
That is an approach which I gratefully adopt.
ii) Where the late evidence is (a) not challenged or contradicted, and is credible, and (b) passes the four tests in E v Secretary of State for the Home Department  QB 1044, CA, to which I shall refer in detail below, the court may have regard to it in considering whether the decision of the OIA was based on an error of fact.
Adopting the approach of Blake J, on the first point there is a marked contrast between (a) the distinct, detailed, and closely contemporaneous recollections of both Dr Hales and of the Claimant as to what occurred before the APC and the TCRP and (b) the more general accounts of events in the statements, whether based on 'usual practice' or otherwise, made between two and three years after the events, by Prof Petersen and Prof White. With all respect to both professors, for the reasons (a) given in the authorities mentioned in the previous paragraph and (b) mentioned when dealing with particular details of events below, on any conflict of account as to what occurred at either the APC or the TCRP, I should prefer the accounts of the Claimant and Dr Hales where it is necessary to resolve any point of difference. Whether the OIA should adopt this reasoning in any future review, is a matter for them.
On the second point, in deciding whether the OIA's decision was to any extent based on an error of fact, the position is as follows. There is no challenge to or contradiction of the Claimant's credible evidence about Dr Clarke's letter, its delivery to her, and her delivery of it to the University: the (apparently) precisely accurate e-mail evidence as to times and dates speaks for itself. Secondly, it is common ground that the OIA had erroneously considered that the letter had been before the TCRP. Thirdly, the Claimant had not been responsible for the error. Finally, the mistake had played a part (although not necessarily a decisive part) in the reasoning of the OIA: it was expressly stated to have been a matter which had played a part in its reasoning.
Re-amendment and further re-amendment
"… the Claimant's multiple complaints have been subject to a continual process of change since her Grounds were issued, and indeed since her complaint was first made to the OIA. Particularly where, as here, the complaint against the OIA concerns its handling, in the past, of complaints raised by the Claimant against a third party (the University), the analysis of the complaints against the OIA must focus on what was said to the OIA at the relevant time, and how the OIA handled that. The continual flux in the Claimant's complaints, most of which appear properly to be directed at the University, rather than at the OIA, serve significantly to shift this focus and muddy the actual complaints against the OIA."
The further re-amendment
"4.5 The OIA will not normally consider a complaint where it considers that the substantive event(s) complained about occurred more than three years before the Scheme Application Form is received by the OIA.
That rule apart, the OIA said that even if the complaint had included the correct information in respect of Dr Clarke, and thus had been made within 3 years, the OIA would nevertheless have concluded that the complaint was not justified.
i) The Claimant's original claim was made perfectly promptly, by December 2011. The fact that the OIA's investigations and subsequent processes have taken as long as they have was not under the control of the Claimant. The period of 3 years, in any event, has only just elapsed.
ii) The University's own procedures specifically provide for the participation of the personal tutor: it is not for the OIA to conclude that his letter would have had no effect.
iii) In any event, the procedure was one which was designed to encourage engagement and co-operation by all parties, and the University had a responsibility, which the OIA should have recognised, to seek and consider Dr Clarke's views.
iv) When the letter came to light, the University (through the agency of administrative staff) operated a blanket policy of not admitting it and had not applied an 'exceptional circumstances' rule.
Ruling on applications to re-amend
"44. Can a decision reached on an incorrect basis of fact be challenged on an appeal limited to points of law? This apparently paradoxical question has a long history in academic discussion, but it has never received a decisive answer from the courts. The answer is not made easier by the notorious difficulty of drawing a clear distinction between issues of law and fact…."
Discussion of the problem continues in the judgment until paragraph 66, where it is said that,
"66. In our view, the time has now come to accept that mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. …. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
It is accepted on all sides that this case is one in which the parties share an interest in co-operating to achieve the correct result.
Were the terms of the complaint to the OIA sufficiently clear in raising any issue of perversity, irrationality, or unfairness, as to justify intervention by the OIA?
i) The complaint to the OIA did not specify what mitigation applied in relation to Year 1, and did not make any clear complaint such as could found a challenge based on a failure to uphold such a complaint.
ii) Whether or not the APC unreasonably failed to take into account Year 1 mitigation (and it was not accepted that this was the case), the Claimant's complaint against the OIA concerned the OIA's alleged unreasonable failure to conclude that the University had failed to take into account matters essential for a fair decision in concluding that the Claimant did not have a good future prospect. This was not a matter clearly raised with the OIA in the "many pages of complaint" made on the Claimant's behalf.
iii) The Claimant had made "an unproven assertion" that the APC ignored mitigation pertaining to her Year 1 studies. This assertion was not accepted. The APC had some evidence before it of such mitigation, notwithstanding the Claimant's"… own clear focus then, and until these proceedings were issued, on her Year 2 mitigation, and there is no basis on which it could properly be determined that the APC had not taken this information into account in reaching its conclusions as to the Claimant's future prospects."
The record of the APC meeting showed, counsel argued, that the Claimant was in fact asked about year 1. The fact was that,"… the Claimant failed many of the examinations she undertook in her two years of study with D. Notwithstanding her personal circumstances, this is not the pattern of a student who is likely to succeed in the longer term."
Conclusions on the sufficiency of the complaint
"[t]his was not a matter clearly raised with the OIA in the many pages of complaint made on the Claimant's behalf"
is one I reject. The matter was raised at least four times: in the Claimant's grounds of appeal to the TCRP at (a) (iii) (HB 75); in the original grounds of complaint at paragraph 18 in December 2011 (HB 359); in an exhibit to the "addendum grounds" in February 2012 (HB 81-82); and in the Hales Reference itself on 24 May 2012 (HB 822-823.) It was also clear from the notes of the hearing at the TCRP (HB 129-130) that an attempt was made to raise it there.
Part 5 Relevant legal principles concerning (a) Judicial review of decisions of the OIA generally and (b) The concept of 'academic judgement'
Susceptibility of decisions of the OIA to judicial review
" … an adequately reasoned decision in accordance with its procedures, in accordance with the law and as a proper exercise of its wide discretion."
Mummery LJ said at paragraph 26 that,
"The following general points can be collected from the judgments in Siborurema, in which an application for judicial review against the OIA was dismissed, and from the relevant legal materials.
(1) The OIA is amenable to judicial review for the correction of legal errors in its decision-making process.
(2) That process involves conducting, in accordance with a broad discretion, a fair and impartial review of a student's unresolved complaint about the acts or omissions of an HEI and to do so on the basis of the materials before it, also drawing on its own experience of higher education, all with a view to making recommendations.
(3) The function of the OIA is a public one of reviewing a "qualifying complaint" made against an HEI and of determining "the extent to which it was justified."
(4) For that purpose the OIA considers whether the relevant regulations have been properly applied by the HEI in question, whether it has followed its procedures and whether its decision was reasonable in all the circumstances.
(5) It is not the function of the OIA to determine the legal rights and obligations of the parties involved, or to conduct a full investigation into the underlying facts. Those are matters for judicial processes in the ordinary courts and tribunals. Access to their jurisdiction is not affected by the operations of the OIA.
(6) The review by the OIA does not have to follow any particular approach or to be in any particular form. The OIA has a broad discretion to be flexible in how it reviews the complaint and in deciding on the form, nature and extent of its investigation in the particular case.
(7) 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."
Academic judgement "immunity": the authorities at common law
"This is because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified." (Paragraph 12 per Sedley LJ).
The case proceeded on amendments to the pleadings alleging breach of contractual rules upon which "the courts are well able to adjudicate". (13)
"I would accept that there is no principle of fairness which requires, as a general rule, that a person should be entitled to challenge, or make representations with a view to changing, a purely academic judgement on his or her work or potential. But each case must be examined on its own facts. On a true analysis, this case is not, as it seems to me, a challenge to academic judgement; it is a challenge to the process by which it was determined that she should not be reinstated to the Register of Graduate Students because the course of research for which she had been admitted had ceased to be viable. I am satisfied that that process failed to measure up to the standard of fairness required of the university".
"24. In the light of … [the] authorities it appears to me that the validity of the reasons which led the examiners to make the recommendation ... is a matter of academic judgement with which it would be inappropriate for the court to interfere...
"25. I accept that there may be aspects of the Claimant's examination ...into which it would not be inappropriate for the court to intervene. Thus the court would no doubt in a suitable case intervene if it were shown that there had been a material procedural irregularity or if actual bias on the part of one tribunal or another were demonstrated or if it could be shown that there were some procedural unfairness to the claimant."
"I do not therefore think that it is even arguable that the mark was perverse or given in bad faith. It may have been harsh, but that is another matter: once it is established that the mark was given in the exercise of a bona fide academic judgement, it is incapable of being challenged in this court".
"The courts administering civil law, and in particular public law, are not well equipped to deal with matters of academic judgement. It is for the examiner and not the court to mark a paper, for instance. It is for the educational professional and not for the court to deal with the way in which education is best advanced. There are limits, as for instance, where a power to mark is on the facts deliberately exercised so as to disadvantage a particular student, but although the claimant here believes, as I have recited, that that is what the Open University were doing in his case, he accepts that there is no evidence – at least no evidence to which he is prepared to refer – which is capable of supporting that conclusion. There being no objective evidence of that there is no proper basis it seems to me for the court here to make an adjudication upon what is a matter of academic judgement".
"The statutory mechanisms in place, which enable students to question the results of examinations, have become more elaborate in the intervening 11 years. But the essence of Lord Woolf's point that a Court is not well placed to engage in questions which go to academic merit remains good law. That said, I do not consider that the claimant's attack of OXILP in this claim engages academic judgement in the sense being discussed by Lord Woolf. She is suggesting that the teaching was lacking in reasonable skill and care, rather than basing a claim on a disagreement about the outcome. She is not suggesting that OXILP should have awarded her a pass. Albeit perhaps reluctantly, she is constrained to accept that she failed the course because she failed Property Law and Practice three times. The classic example of an argument concerning academic judgement would arise if a student sought to suggest that his papers should have led to the award of a first class degree rather than a 2:1. That is a debate in which a court would be very reluctant to engage. But that is not this case." (Emphasis added.)
Academic judgement immunity and the OIA Scheme: authorities on the statutory test
"96. When [the claimant] appealed to the OIA …. It is clear to me that some part at least of those complaints was inadmissible. The actual marks awarded, and the choice of examiner, can only relate to matters of academic judgement, and are thus outside the remit of the OIA scheme. But it does not follow that the effect of his supervisor's conduct upon him, which includes the effect upon his performance in his research paper, is excluded from consideration. In the language of the Rules, the scheme 'does not cover a complaint to the extent that (3.2) it relates to a matter of academic judgement.'
"97. In my view, that is intended to exclude appeals where the central subject matter of the complaint is a dispute about an academic judgement. Typical examples would be those whose substance is to dispute an academic assessment of the quality of a piece of work, or where issues are raised about the performance of a student in tutorials or seminars. But that does not serve to exclude complaints which do not relate to such a dispute, albeit that its subject matter can have an effect on the ability of the student to pursue his or her course of study. It cannot be doubted that misconduct or omissions or failures by an HEI which adversely affect a student are subject to the scheme. It would be extraordinary if it could exclude consideration of misconduct or failures by the HEI simply because their effects showed up in a poor performance of the student in his/her coursework or examinations. …."
However, as Ms McColgan pointed out, the judge was considering a case in which an issue of misconduct arose in respect of a supervisor. One of Mr Cardao-Pito's grounds of complaint was that the university had not properly dealt with his appeal. He argued that his performance in his assessment had been adversely affected by bullying by his supervisor. The OIA concluded that the university had failed to act on Mr Cardao-Pito's allegations of bullying and harassment and concluded that it ought to investigate them. The submission was that,
"… whilst it also concluded that the university had not properly considered Mr Cardao-Pito's academic appeal, and that he had lost the opportunity of having that appeal properly considered, the OIA did not decide in Mr Cardao-Pito's case that it could not look at the effect of the bullying on his performance because it was an academic judgement. That was not the point. The references to academic judgement in the decision related to whether the OIA can prefer the view of one academic to another, whether the marker was sufficiently experienced, and whether greater student effort was required for the research element than for the taught element."
"49. Just as the courts have identified the existence of issues of academic judgement which are non-justiciable, so the statute contains an exclusion of certain kinds of complaints, which the OIA is prohibited from considering. The cases subsequent to Clark have confirmed the existence of an area of non-justiciability for the courts and have affirmed that a paradigm case of academic judgement is the question of what mark to award. They have also been cautious in determining what constitutes an exercise of academic judgement, lest the area of non-justiciability be spread too wide, with the consequence that there may be no remedy for what are really breaches of contract or other civil wrongs. Otherwise, and not surprisingly, the extent of the area of exclusion remains undefined. It will have to be considered case by case, with the possibility that nice questions may arise, the answers to which will no doubt be affected to some extent by whether the issue raised is one which the court regards itself as competent to determine.
"50. So far as the OIA is concerned, however, the question is one of statutory interpretation, with an absolute prohibition on complaints which are excluded from the definition of "qualifying complaint" by section 12 (2). Mr. Lawson submitted that the exclusion should be narrowly construed, as it represents an exclusion from what is intended to be a broad and general scheme to deal with complaints, and further that the statutory prohibition should be co-extensive with the area of non-justiciability accepted by the courts, as it would be odd if there are complaints which the courts can consider but the OIA cannot (or vice versa). In my judgment there is force in these submissions, but it is unnecessary to decide in this case how far they should be accepted.
"51. The exclusion of OIA jurisdiction contained in section 12 of the Act and repeated in rule 3 of the OIA's rules applied "to the extent that it [the complaint] relates to matters of academic judgement". This does not exclude in its entirety any complaint which involves a matter of academic judgement, but does so only "to the extent" that the complaint "relates to" such a matter. I respectfully agree with Judge Gilbart that the exclusion applies where the central subject of the complaint is a dispute about an academic judgement and that complaints where such disputes are peripheral are not intended to be excluded. This is a helpful way of looking at the matter, though it is always preferable to apply the words of the statute rather than to gloss them. Questions may arise, therefore, as to the extent to which the OIA can consider a complaint which does involve a matter of academic judgement, but where the correctness of that judgment is not a central issue. An example may be a complaint that a finding of plagiarism had been reached by a process which was unfair. Indeed the OIA did consider – and rejected – Mr. Mustafa's complaint that the finding of plagiarism against him was unfair because other students had done what he had. (Emphasis added.)
52. Obviously, the exercise of academic judgement does not encompass everything which academics do, and not all judgments which academics have to make will qualify as academic judgements. The exclusion applies only to those matters which involve the exercise of a certain kind of judgment which, beyond saying that it is 'academic', the statute does not define. It is, however, the nature of the judgment which determines whether the judgment qualifies for the label 'academic', and not whether the decision is easy or difficult. But there must still be an exercise of judgment. That said, the courts have at least been willing to consider whether an academic judgement was made bona fide or whether it was perverse (see the passage from Moroney cited above), and it may be that these qualifications are also implicit in the exclusion in section 12 (2) of the 2004 Act". (Emphasis added.)
Part 6 Conclusions
The 'former student' point.
"… there is no process open to her to complete since she is no longer a student at the University."
The OIA had found no exceptional circumstances under its rule 4.1 which justified a departure from the rule. Moreover, the purpose of the provision permitting complaints from former students was
"… to allow those students whose relations with the University had been terminated to make complaints about events which took place before the termination."
The University's "exceptional circumstances" test in a termination of course case
"… proven circumstances which could impugn the University's original decision to terminate a student's course."
Whether the case of Mr Wijesingha was an example of the exercise of such discretion by a strict application of that test was a matter of some debate at the hearing, but the importance of his case is that it represents a known example of the exercise of the University's discretion.
Procedural steps involved
i) The University must follow its own procedures. They permit it to exercise its discretion to re-open a case only in the circumstances referred to by Mr Siesage above.
ii) If no such circumstances exist, there is no power to re-open.
iii) The University's decision as to whether such circumstances exist, except to the extent that it relates to matters of academic judgement, is, prima facie, an act or omission reviewable by the OIA under s. 12 of the Act.
iv) The OIA's rule 4.1 however, prevents it from reviewing the decision if the complainant has not first exhausted the internal complaints procedures of the University, unless there are exceptional circumstances in which case the OIA may, if it considers it appropriate, do so.
Exceptional circumstances under the University's rules, and the OIA's decision on whether the University's refusal to re-open was a 'fresh decision'.
"On 9 August 2012 we invited the University to indicate whether it would be willing, exceptionally, to offer to reconsider [the Claimant's] circumstances based on new information which she has supplied to the OIA, so resolving her complaint to the OIA."
i) The letter contained no decision for them to review at all. It was merely a re-assertion or re-iteration of its original decision to terminate the course
ii) Alternatively, the letter was no more than a response to suggested mediation by the OIA. The implication of that seemed to be to the effect that it amounted to no more than a party to a dispute declining to enter into 'without prejudice' discussions.
iii) The new evidence was obtained after the expiry of the time limit set by the University's regulations, and the Claimant had given no "compelling reason" to explain why it was not obtained in time.
iv) The Claimant's case had reasonably and rightly been regarded by the University as one in which there were no "exceptional circumstances."
v) The University had not been regarded as having applied a blanket policy. Such policy statements as the University had disclosed on enquiry by the OIA had catered for exceptional circumstances.
vi) The pre-course Student Agreement point mentioned at paragraph 110 (5) above.
vii) There was no "compelling reason" in the new evidence to explain why the Claimant had not sought support and diagnosis of her conditions whilst a student at the University. "In the absence of any evidence that the student's disability itself prevented the student from engaging with the correct procedure at the correct time, we are not persuaded that the University has an obligation to consider waiving its time limits for the submission of evidence."
viii) A further point which demonstrated that the Claimant's case was not exceptional was the joinder of "… the additional Interested Parties … all of whom are students in similar situations, as are an additional four students represented by the Claimant's solicitors in complaints to [the OIA.] All of these students are former students of the [University's] medical school."
I shall deal with these points in turn.
The 'no decision' or 'no fresh decision' point
"I have already read the full text of the letter of 3 December 1998. The letter does not read as a fresh decision. It is in very similar terms indeed to that of 6 May 1997, but it is considerably shorter. It adds nothing of any substance whatsoever to the earlier letter. The correspondence between the parties in … 1998 was not truly a new decision by the … Ombudsman. It was of the nature of a reiteration of the decision which had certainly been made and communicated by [a letter of] … 15 May 1997 – if not on 6 December 1996.
"One does not overcome the problems created by Order 53 rule 4 (1) by writing a fresh letter to the decision maker and thereby obtaining a reply which one then seeks to characterise as a fresh decision. That would render that provision in the rules wholly ineffective.
"Here the grounds for … judicial review… undoubtedly first arose when the Ombudsman declined jurisdiction … on 6 December 1996. It may be that [the claimant] hoped by his later correspondence to persuade the Ombudsman to change his mind … but that is not enough."
(At the ninth page of the unpaginated transcript.)
Conclusion on the fresh decision point
"The subsequent material supplied by [the Claimant] is not relevant to the issue of whether the decision of the TCRP should be set aside."
Although no more detailed explanation or reasons are given, it is clear from the context that the mind of the responsible individual at the University had been applied to the question of whether or not the psychiatric and psychological reports would be likely to alter a decision that the Claimant was "a weak student." The words used "not relevant to the issue" are in themselves a clear indication that the material has been examined and that someone, having given thought to it, has made the decision that it is not relevant. The Claimant's side strongly disputes the proposition that the material is "not relevant," of course. The question is obviously one which is open to debate.
"A public body almost always has a duty in public law to consider whether it should exercise its powers …."
Universities are public bodies whose powers in respect of their graduate and undergraduate members are of profound and far-reaching significance. To refuse to exercise those powers in circumstances such as these without giving clear and cogent reasons would in my view constitute an omission which should be capable of review by the OIA.
The 'response to suggested mediation' point
The point that similar applications by other students showed that the Claimant's case was not exceptional.
The other points: time limit; the Student Agreement; failure by the Claimant to obtain contemporaneous medical evidence and failure to explain any reason for not doing so.
i) First, the OIA took great care to examine the history given by the Claimant herself when it considered the question of the submission of the medical evidence to the University after expiry of the time-limit, and in particular whether or not the case was exceptional in the sense that the first inkling of a depressive illness had emerged after the expiry of the time limit. The Claimant was at all material times aware of the requirements of the University, and of her responsibilities as a medical student, to take appropriate action in relation to any concern as to her own health, physical or mental. That she was a perceptive and resourceful medical student was demonstrated by her discovery and pursuit of the pharmacological explanation for her father's aberrant behaviour. The Claimant had not told her GP, but had twice spoken to Dr Hales about being depressed. In dealing with the issue of her failure to report her concerns for her own mental health to her GP, the OIA noted that the Claimant said she did not wish to mention her depression because of a perception that she might be considered weak. That was her decision. The OIA, in considering the question of exceptional circumstances, in my view rightly took the view that she had to accept the consequences of having taken that decision. The case was not analogous to the truly exceptional case where a student's poor performance can be shown to have been caused by some serious but unsuspected and undiagnosed condition which is first discovered after failure in examinations.
ii) The second significant finding of the OIA with which I agree is as follows. In the absence of compelling evidence showing that the Claimant's undiagnosed disability might itself have prevented her from engaging with the relevant procedures at the correct time, the University had no obligation to consider waiving its time-limits for the submission of evidence. The first report from Dr Jamil, produced months after the Claimant had ceased to be a student, did not contain the suggested explanation for her failure to bring her depression to the attention of the University. That appeared for the first time in the second report which was not made available even to the OIA until long after its final decision, notwithstanding the fact that the Claimant had been alerted as early as February 2013, on receipt of a second (provisional) 'Complaint Outcome,' that the OIA then took the view (rightly or wrongly) that the University was entitled not to have treated her as disabled at the time its decisions in her case.
Academic judgement: the Claimant's submissions
i) The statutory prohibition applicable in this case should be co-extensive with the area of non-justiciability accepted by the courts (a point which was made as a submission by counsel to Males J and noted by him at paragraph 50 of Mustafa. Males J said that while the submission had force, it was not necessary for him to decide the point.)
ii) The immunity (or exclusion) applies to a purely academic judgement (Persaud per Chadwick LJ at para. 41) where the central subject of the complaint is a dispute about an academic judgement (Judge Gilbart QC in paras. 96-97 of Cardao-Pito and Males J. in Mustafa para. 51). The basis of the immunity as explained in Clark and elsewhere is that the courts are not well equipped to deal with matters of academic judgement. As Langstaff J. said in Hamilton para. 11 "it is for the examiner and not the court to mark a paper, for instance."
iii) It is the nature of the judgment which determines whether the judgment qualifies for the label "academic" (per Males J. at para. 52 in Mustafa).
iv) It is the nature of the complaint that must be "focused on" by which the court should determine whether or not its central subject is a dispute about an academic judgement. The statutory exclusion of OIA jurisdiction applies "to the extent" that the complaint relates to matters of academic judgement. The key to answering this question is whether the issue raised is one which the court regards itself as competent to determine (see the comment of Males J. at para. 49 of Mustafa). If the court does regard itself as competent to determine the issue raised, the basis for the immunity, that "any judgment of the courts would be jejune and inappropriate" (Sedley LJ in Clark), falls away.
v) Thus the purported exercise of academic judgement cannot be challenged simply by a complaint that it was wrong. What is required is a complaint supported by objective evidence (see Langstaff J. in Hamilton at para. 11) that the decision maker made his decision:a) As a result of bias (see Gray J. in Van Mellaert para. 25) or as a result of any other motive or prejudice that renders a decision unfair (per Langstaff J. in Hamilton para. 11; per Males J. in Mustafa para. 52; per Underhill J. in Moroney para. 26); orb) Where there has been unfair process (see Males J. in Mustafa, para. 51; Chadwick LJ in Persaud para. 41) or procedural unfairness (see Gray J. in Van Mellaert para. 25); orc) Where a matter has not been taken into account which was essential for a fair and proper decision, as where an examiner gives an essay a mark without reading it all;d) Where any reasons given by the decision maker show the decision to be unreasonable or irrational or perverse (see Judge Gilbart QC in paras. 96-97 of Cardao-Pito; and Males J. in Mustafa, para. 52).On behalf of the interested parties, Mr Hamilton for the University did not dissent from these propositions, and Mr Glenister for the other interested parties expressly adopted them as correctly stating the law.
Academic judgement: the submissions for the OIA
"26. … the Claimant complains of being given a mark of '0' on one of the components in his coursework on Research in Clinical Practice: the recorded mark of 33 is the product of marks of 0 and 65 on the two papers which he submitted. He says that such a mark is perverse and cannot represent a bona fide exercise of academic judgement. I have been shown the paper and the comments of the tutor marking it. These show quite clearly that the tutor reached a reasoned conclusion that the paper submitted, which was supposed to be the write-up of an experiment using statistical analysis, simply failed "to communicate your findings to others in a form that they can understand": looking at the paper, it is not necessary to have an understanding of statistical method to see that this was a conclusion which was open to him. I do not therefore think that it is even arguable that the mark was perverse or given in bad faith. It may have been harsh, but that is another matter: once it is established that the mark was given in the exercise of a bona fide academic judgement, it is incapable of being challenged in this Court (and also, under the appeal regulations, by way of internal appeal). I note that a challenge to a mark of zero was held to be non-justiciable on essentially these grounds in Clark (see per Sedley LJ at pp. 1992G - 1993A)."
Conclusion on co-extensivity of areas of non-justiciability
i) The immunity (or exclusion) applies where the central subject of the complaint is a dispute about an academic judgement. Although the OIA is, by definition, an independent adjudicator in higher education matters which is entitled to consider acts or omissions of institutions such as universities on the basis of the materials before it, drawing on its own experience of higher education, questions of what class of degree, or whether a student has passed or failed an examination, for example, are matters solely for the judgment of examiners within the relevant discipline. As Langstaff J. said in Hamilton "it is for the examiner and not the court to mark a paper".
ii) Not all judgements which academics have to make qualify for the immunity. Nor can an academic institution expect that any claim for academic judgement immunity will be accepted uncritically. The nature and extent of the judgement determines the point. In its scrutiny of the relevant decision, the court (or the OIA) should consider whether the decision is of a purely academic nature -- such as a dispute over a mark, or the class of degree awarded -- or whether the academic extent of the decision is only one element of it: as where, for example, the complaint relates to procedural unfairness in reaching the decision, or to an allegation that extraneous or irrelevant matters were taken into account by the decision-maker. A gross example would be where there is evidence that impropriety has occurred, such as an examiner purporting to mark a paper without reading it all.
iii) On the assumption that the complaint is one made not to a court but to the OIA, as here, 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, notwithstanding the academic context within which, ex hypothesi, it arises.
This summary might usefully be compared with the much more concise statement made by the OIA of what it regarded as its function at paragraph 93 above, where it contrasted its inability to re-mark papers with its ability to scrutinise fairness in decision-making. There is very little, if any difference.
Application of the relevant principles of law
(1) The OIA's consideration of the APC stage
i) It considered the Claimant's Academic Record which showed the results of the assessments and some notes of mitigating circumstances.
ii) It had no material before it from any tutor, personal or academic, and therefore did not consider any. Ms McColgan confirmed at the hearing that at the time when the OIA made its final decision, it was aware of this fact.
iii) It had the Claimant's presentation of her mitigation in respect of Year 2. She did not present any mitigation in respect of Year 1.
Moving on to consider the three criteria for permission to re-sit the year,
iv) The members of the APC were satisfied that the Year 2 mitigation was established.
v) They were also satisfied as to the Claimant's motivation.
vi) On the "progress" criterion they found the Claimant had been a "weak student in the past" and that she had not cited "any adjustments in learning style to help her succeed."
On the basis of point (vi) termination was upheld.
(2) Consideration of the decision of the TCRP by the OIA
"You're asking us to second-guess the medical educationalists and say they are wrong.
We need something to base such a decision on." [HB 130]
Prof White in his witness statement, obtained on the last day of the hearing, denied that they had simply "rubber stamped" the decision of the APC, yet stated that the assessment of the Claimant's academic ability and prospects of completing her course were "uniquely a matter for the APC." He did not satisfactorily explain how this distinction made any real difference.
"1. ….The student's personal tutor … will be invited to attend…"
"3.3 The personal tutor's role is to guide the student through the appeals process and to provide the Panel with any relevant information about the student's personal history." (HB 149)
The personal tutor was not invited to attend by the TCRP. There was no evidence before the OIA to suggest that he had been. On the face of it there was therefore a breach of the Panel's own rules. There was no evidence before the OIA that the Panel considered what reason there may have been for the non-attendance, nor what procedural step to take in light of his absence, nor of any enquiry of the Claimant as to what she wished to happen in view of the breach of procedure.
"I have also noted that her personal tutor was not in attendance at either meeting, and that statements from him and another tutor appeared to express confidence in [the Claimant]'s ability to pass the course."
What is not clear from its decision, however, is how that concern of the OIA was resolved, if indeed it ever was resolved.
The significance of Dr Nandakumar's letter
"The letter of Dr Nandakumar… was before the TCRP and was considered by it." (paragraph 7)
"In summary, the TCRP weighed the mitigation evidence against the academic evidence and concluded that even allowing for the mitigation, the academic prognosis was unsatisfactory; that the APC's decision should not be overturned; and that accordingly the decision to terminate should stand." (paragraph 9)
As I mentioned at an earlier stage, in the absence of any such explanation, counsel for the OIA speculated, (and candidly accepted that it was a personal speculation) that a reason for the TCRP's failure to take notice of the letter might be that Dr Nandakumar had on other occasions written supportive letters for weak students in order to assist them, out of the kindness of his heart. I decline to engage in such speculation. There is no evidence to support the suggestion, and the very idea is in conflict with the terms of his letter, and with his standing as a member of the professional medical teaching staff at the University, and at Guy's.
Error of fact
"I cannot say in this case that all risk of unfairness was eliminated. Accordingly, I consider that there was a breach of the principles of fairness …. It has been urged on me that even if there were defects in the procedure they would have made no difference to the outcome. This is an argument that is very rarely accepted by the courts, for obvious reasons. It must be in the very plainest of cases, and only in such cases, where one can say that the breach could have made no difference. In my opinion it is not possible in this case to say that the committee's decision would inevitably have been the same even if the committee had acted in accordance with its legal obligations."
Refusal to re-consider at the hearing
Overall conclusion on the Decision of the OIA
Procedural unfairness in respect of the letter of 11 June 2013
Comment on the difficulties faced by the OIA
19th December 2014