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Preserving one’s position

Rizvan Mussa and Salima Mawji reflect on the latest High Court guidance on judicial review and complaints to the Office of the Independent Adjudicator

25 September 2017

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“Promptly and, in any event, within three months after the grounds to make the claim first arose” – a phrase etched into the minds of budding public law practitioners from the outset of their training and which is set out in part 54.5(1) of the Civil Procedure Rules. The relatively short time limit reflects the courts’ recognition of the importance of finality in respect of administrative decisions. Practitioners are equally familiar with the notion that judicial review is a remedy of last resort and that where alternative processes are available for resolving disputes, then those options ought to be exhausted in the first instance.

In February this year the High Court handed down judgment in R (on the application of Zahid) v The University of Manchester and others [2017] EWHC 188 (Admin), wherein the court sought to strike a balance between the two competing and perhaps somewhat conflicting principles of public law in circumstances where an external source of alternative dispute resolution was available to the parties involved in the dispute. In an attempt to grasp the nettle the court set out useful guidance as to the approach to be adopted by prospective claimants in such circumstances.

Independent adjudicator

The case concerned three students whose registration at their respective universities was terminated, resulting in their expulsion. The students sought to challenge the decision to deregister them by submitting a complaint to the Office of the Independent Adjudicator (OIA), an independent body established in accordance with the requirements of the Higher Education Act 2004 to review complaints made by students.

In addition to bringing complaints before the adjudicator, the students also sought to issue protective judicial review proceedings in the Administrative Court in respect of the same decisions and sought a stay of those proceedings pending the OIA’s determination of their complaints. A stay of the proceedings was crucial because the OIA’s rules do not permit it to consider matters which are the subject of past or ongoing court proceedings.

The court observed that the OIA scheme was intended by parliament to be an independent body established as a forum which was an alternative to court proceedings for the purpose of determining students’ complaints against higher education institutions. It was free of charge, informal, confidential, adopted an inquisitorial approach, and was armed with a wide variety of remedies available to it in circumstances where it determined that the complaint under consideration was justified or partially justified.

The High Court described it as an attractive procedure and recognised the public interest in resolving complaints outside the court system where possible. The court sought to provide pragmatic guidance on the procedure to be adopted when bringing a complaint to the OIA while seeking to preserve the ability to bring judicial review proceedings in the event that the outcome of the OIA failed to provide a satisfactory outcome for the student.

Guidance on time limits

The court held that the default position ought to be that the OIA should be considered as the most appropriate forum for dealing with student complaints in the first instance. The OIA’s current rules provide that a complaint to the adjudicator must be brought within 12 months of receipt of a ‘completion of procedures’ letter from the university issued upon the exhaustion of all internal complaints and/or appeal procedures.

However, the court said that a student who seeks to preserve their position in respect of judicial review proceedings ought to bring their complaint to the OIA within the three-month time limit for judicial review. The court also suggested that the student should in the first instance write to the university, within one month of the decision, inviting the university not to take a point on delay should the student decide to pursue a judicial review claim if the outcome of the OIA’s review of their complaint does not provide a satisfactory resolution. The court indicated that the university should respond within 14 days indicating its agreement.

Where the university states that it does intend to take a point on delay where proceedings are brought outside the three-month time limit, the High Court advised a student in such circumstances to issue protective proceedings, to seek a stay of the proceedings, and to explain that the university was intending to take a point on delay but for the issuing of the proceedings. In a veiled warning to universities which act in such a manner, the court explained that there would be costs consequences for the adoption of such an approach where it was deemed to be unjustified.

Assuming this process was followed, the court held that a student would be entitled to bring proceedings outside the three-month time limit where the outcome of the OIA did not provide the remedy they sought, so long as judicial review proceedings were brought within one month of the outcome of the OIA’s review being communicated to the student.

Practical considerations

It can be considered that the fundamental problem that remains, and which the court in Zahid recognised, is that the OIA is not a forum for determining the parties’ legal rights and responsibilities. In some instances, therefore, the OIA will not necessarily be equipped to determine such matters or able to impose the most appropriate remedies where they are required.

The Court of Appeal decision in R (Maxwell) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 provides an apt example. In this case, the student sought a determination as to whether she had been a victim of disability discrimination as a result of the university’s actions. The court, in dismissing the appeal, held that it was not for the OIA to determine whether the university in question had in fact discriminated against Ms Maxwell on the grounds of her disability. It held that the OIA’s task was to review the complaint before it, which included a complaint of discrimination, and to determine whether the complaint was justified and if so what recommendations should be made to the university.

A further issue which will be apparent to those practising in this area is that despite the fact that some time has passed since the judgment in Zahid was handed down, the guidance has not been replicated elsewhere for the benefit of the very group of people in society who it is designed to assist – students. Despite the court’s suggestion at paragraph 81, the standard ‘completion of procedures’ letters issued by universities make no reference to the shortened time frames for bringing a complaint to the OIA.

Unless students have sought independent legal advice, they will be unaware that they will need to act in order to preserve their position in respect of a potential challenge to the decision in question by way of judicial review or of the need to write to the university inviting it not to take a point on delay and to bring judicial review proceedings within one month of notification of the OIA’s outcome. More worryingly, no reference is made to the guidance set out in Zahid in the OIA’s guidance, documentation, or on its website.

A further problem with the approach suggested in Zahid is that the OIA can only recommend that the university reviews its decision in light of the recommendations made by the OIA where it determines that a complaint is justified partially or as a whole. The university can then reconsider the matter and yet still arrive at the same decision without fear of adverse publicity or the costs implications associated with a failure to implement the decision from the High Court. In some instances students can therefore find themselves in a loop where they are compelled to bring the matter before the OIA once more to review any subsequent decision issued by the university.

It is understood that the High Court’s ruling in Zahid is being appealed and it will be interesting to see how the Court of Appeal approaches the issue and whether it addresses any of the concerns outlined here.

Rizvan Mussa, pictured, is an assistant solicitor and Salima Mawji a director at Match Solicitors

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