Courts may reconsider findings of adjudicator

John Gill

January 10, 2008

Decisions made by the Office of the Independent Adjudicator for Higher Education are open to judicial review, appeal court judges have ruled.

The ruling was made following an appeal against the OIA's decision to reject a complaint lodged by a nursing student against London South Bank University.

The university withdrew Gaston Siborurema from his course after he failed key exams at four separate attempts on the grounds that he was failing to make academic progress.

He complained to the OIA about the decision, claiming that there were mitigating circumstances, but his complaint was deemed to be unjustified.

Mr Siborurema then sought a judicial review of the OIA's decision, and when that was refused he challenged the ruling in the Court of Appeal.

Baroness Deech, the adjudicator, argued that the OIA, which deals with more than 500 complaints a year, would serve universities and students best by operating without "excessive formality or legalism", saying it would be "hindered significantly" if decisions were subject to judicial review.

Lord Justice Pill, one of three judges hearing the appeal, refused Mr Siborurema's application but ruled that the OIA was, in general, amenable to judicial review.

He said: "However well intentioned, an important scheme available to resolve a wide range of disputes affecting higher education institutions and the large number of students who attend them should not be free from (High Court) supervision.

"For it to become a law unto itself would not achieve the statutory intention."

However, the judges were also clear that a judicial review of OIA decisions would be appropriate only in certain circumstances.

Lord Justice Moore-Bick said: "On any application for judicial review, the court should recognise the expertise of the OIA and is likely to be slow to accept that its choice of procedure was improper."

Baroness Deech said: "We are glad to have won the appeal. We note that although the court found our decisions could be judicially reviewable, the judges said that permission would be granted only in narrow circumstances, and that they would be reluctant to interfere with our discretion, both in the way we handle cases and in the result."

john.gill@tsleducation.com.

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