Disabled former student presses for adjudicator to rule on discrimination

A disabled woman will make a final attempt to challenge the Office of the Independent Adjudicator next week in a case that has raised questions about the role and remit of the student complaints watchdog.

February 17, 2011

Shelley Maxwell, who has a sleep disorder, enrolled on a degree course in contemporary military and international history in 2004 at the University of Salford but struggled to keep up because she said the university did not make adequate adjustments for her disability.

Salford apologised and offered to pay her following year's tuition fee costs, but Ms Maxwell took her complaint to the OIA in 2006.

The adjudicator, which covers England and Wales, upheld her complaint and, in 2008, recommended that the university also pay her £2,500 in compensation and change its procedures.

But dissatisfied and disillusioned that the OIA did not explicitly make findings on disability discrimination, Ms Maxwell began a legal challenge against the adjudicator in a case that reached the High Court last year.

She argued that a finding of disability discrimination would help her explain the gaps in her educational record.

The adjudicator countered that its role was to decide whether a student's complaint was justified and not to determine whether a university had breached a statutory obligation.

Although Mr Justice Foskett dismissed Ms Maxwell's claim, he said the case had "raised an important issue of practice and procedure in relation to the OIA".

In his judgment, he said: "One can see that...(Ms Maxwell's) view as to what the university did...has not been vindicated and reflected in a clear conclusion by the OIA and that, as she says, she does not have a confirmatory 'piece of paper' stating that disability discrimination took place."

But he said that the adjudicator could not make formal legal findings on discrimination and told Ms Maxwell that if she wished to pursue a claim of disability discrimination, she would have to go to the county court.

Ms Maxwell has now lodged an appeal to overturn the High Court decision. Her application for permission to appeal will be heard at the Court of Appeal on 24 February.

Felicity Mitchell, deputy adjudicator at the OIA, said the watchdog's view remained that findings on racial, sexual or disability discrimination were matters for the county court.

In all cases, she said, the OIA examined whether a university had acted "reasonably" and in doing so, where relevant, it looked at discrimination law.

However, Jaswinder Gill of McCormacks Law, who will represent Ms Maxwell, said the adjudicator's decision not to make a finding on "matters that would otherwise be the subject of civil proceedings in this instance is perverse and indeed contrary to the function and purpose of the OIA".

Ms Maxwell told Times Higher Education: "I cannot stress enough the burden placed upon people with disabilities in order to seek justice.

"I have been made to feel unworthy of a place at university simply because I required support measures to be put in place. I have found the whole ordeal humiliating and depressing. The attitude the OIA has towards discrimination makes me feel less of a person - not worthy of consideration and clearly not a valued member of society."

The OIA has been the subject of several judicial review claims but, so far, it has successfully defended them all.

rebecca.attwood@tsleducation.com.

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