Court of law rules that complaints watchdog is not a court of law

Judgment rejects narcoleptic's case as it would make OIA a legal 'surrogate'. Jack Grove reports

November 17, 2011

A woman with the sleeping disorder narcolepsy has lost a landmark case against the Office of the Independent Adjudicator that posed a major challenge to the role of the student-complaints watchdog.

Shelley Maxwell, whose condition causes excessive sleepiness and frequent daytime "sleep attacks" (see box right), brought the legal challenge after the OIA refused to say whether she had been a victim of disability discrimination.

Ms Maxwell, a mature student, enrolled on a degree course in contemporary military and international history at the University of Salford in 2004. However, she struggled to keep up because the university did not make adequate adjustments for her disability, she claimed.

Salford apologised and offered to cover Ms Maxwell's tuition fees for the following year, but she left the course and took her complaint to the OIA in February 2006.

The adjudicator upheld her complaint and in its final decision on the case in December 2008 recommended compensation of £2,500.

But Ms Maxwell was unhappy with the OIA's failure to say whether disability law had been breached and launched a legal challenge. The OIA's decision was "perverse", it was argued, because any such ruling would inform the level of damages awarded to her.

However, the case was rejected by the High Court last year, which supported the OIA's position that it was not a judicial body and that discrimination matters should be considered by the county court.

The issue was finally settled at a hearing late last month when three appeal court judges agreed that the OIA was justified in reserving its opinion on discrimination.

In his judgment, Lord Justice Mummery says that the court should not turn the OIA into a legal body when it actually offered a "more user friendly and affordable alternative procedure for airing students' complaints and grievances".

"The heart of Ms Maxwell's case is that the OIA should, in effect, act as a surrogate of the county court," the ruling says. "What Ms Maxwell is seeking to do by these proceedings is for the courts to turn the OIA into something that it is not, ie, a court of law."

Rob Behrens, the independent adjudicator, welcomed the ruling.

"It rejects every one of the grounds of the application," he said. "If the application had been successful, it would have resulted in the judicialisation of the OIA.

"We are pleased that the court has recognised that the informality and flexibility of the OIA's processes should be protected."

He added: "The OIA scheme is free to students, and has been designed to be accessible to all, without the need for legal representation."

Jaswinder Gill, who works with legal firm McCormacks Law and represented Ms Maxwell in the case, declined to comment.

jack.grove@tsleducation.com

Sleeping nightmare

Narcolepsy is a neurological condition suffered by as many as one in every 2,000 people, and affects the part of the brain that controls waking and sleeping.

The main symptom is the occurrence of sudden "sleep attacks", which can last seconds or minutes. Many sufferers also experience cataplexy, a sudden loss of muscular control. It usually begins between the ages of 15 and 30.

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