Zahid, R (On the Application Of) v The University Of Manchester

Where a student has a complaint against his or her university or college, and has exhausted the internal complaints mechanism of that higher education institution (“HEI”), he or she can refer the matter to the Office of the Independent Adjudicator for Higher Education (“the OIA”) which operates a students’ complaints scheme, under which it can review the complaint and determine whether it is wholly or partly justified. If it is justified, the OIA is able to make appropriate recommendations to the relevant HEI.

In the claims before me, each of the Claimants has made a reference to the OIA; but has also sought judicial review of the decision of the HEI in respect of which complaint has been made. In each case, the Claimant seeks a stay of the judicial proceedings to allow the reference to the OIA to run its course, because each recognises that, depending upon the outcome, the OIA procedure may in practice make any claim in this court redundant. A stay is of particular importance because, where there are court proceedings in relation to the same subject matter that are not stayed, the OIA is proscribed from considering a complaint.

The University of Manchester agrees to a stay in the claim against it; but the other two Defendants object in the claims brought against them. On 29 December 2016, Cranston J directed that the three applications be heard together, as “no clear practice has been established”, and “the Court, the parties (including parties bringing similar claims in the future) and the OIA would benefit from definitive guidance on what procedure should apply”.

At the hearing before me, David Lawson appeared for the Claimants, Tom Cross for the University of Manchester, and Aileen McColgan for the other two Defendants. At the outset, I thank all for their contribution. Whilst the OIA did not appear at the hearing, it lodged written representations which helpfully outline the legal framework under which it operates.

For students, the completion of their education is important. They pay significant sums for their higher education – currently £9,250 per annum for home students, and significantly more for overseas students – for several years. Medical and PhD students, for example, can expect to study for at least five years. Furthermore, for students who fail to complete a course, that can result in a loss of job opportunities and thus life-time income, particularly for those pursuing professional or vocational courses.

The legal relationship between a student and his or her HEI is complex, and has been described as “hybrid… governed partly by contract and partly by the principles of public law enforceable by way of judicial review” (R McManus, Education and the Courts (3rd Edition) (2012) at paragraph 8.7).

In addition, an HEI has various obligations imposed upon it by the Equality Act 2010 (“the Equality Act”), notably the broad prohibition of discrimination against a student on grounds of disability. Section 6 defines “disability” as follows:

“A person (P) has a disability if –

(a)

P has a physical or mental impairment, and

(b)

the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Section 15 of the Act provides that:

“(1)

A person (A) discriminates against a disabled person (B) if –

(a)

A treats B unfavourably because of something arising in consequence of B’s disability, and

(b)

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2)

Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

Section 91 specifically prohibits HEIs from discriminating against a student, in the following terms:

“(2)

The responsible body of [an HEI] must not discriminate against a student –

(a)

in the way it provides education for the student;

(b)

in the way it affords access to a benefit, facility or service;

(c)

by not providing education for the student;

(d)

by not affording the student access to a benefit, facility or service;

(e)

by excluding the student; or

(f)

by subjecting the student to any other detriment.

(3)

The responsible body of such an institution must not discriminate against a disabled person –

(a)

in the arrangements it makes for deciding upon whom to confer qualifications;

(b)

as to the terms on which it is prepared to confer a qualification on the person;

(c)

by not conferring a qualification on the person; or

(d)

by withdrawing a qualification from the person or varying the terms on which a person holds it.”

Where a person is disabled, his or her HEI has a duty to make reasonable adjustments (section 91(9)).

The complexity of the relationship between an HEI and student is compounded in the case of medical students, who are likely to have contact with patients early in their course, increasing until, in their fifth year, they may have responsibility for patient care – albeit, of course, subject to supervision.

Guidance in relation to the obligations of an HEI for its medical students has been issued by the General Medical Council (“the GMC”), from September 2016 in the form of a document, “Professional behaviour and fitness to practise” (“the GMC Guidance”), which replaced earlier guidance, “Medical students: professional values and fitness to practise” which, for the purposes of this claim, was in similar substantive terms. The GMC Guidance emphasises that the relevant HEI is responsible for its students’ fitness to practise (“FtP”) medicine during the period of the relevant course; that medical graduation amounts to a declaration by the HEI that the student is fit to practice medicine (paragraph 17); and that, in the event of allegations of unfitness to practise being made against their students during Years F1 and F2 (the first two years of medical practice), the HEI remains responsible for investigating and otherwise dealing with such allegations. The possible reasons for FtP being impaired for students are listed by reference to those for fully qualified members of the profession (table 1 page 41, referring to section 35C(2) of the Medical Act 1983).

The GMC Guidance suggests that HEIs should consider appointing a student and someone with legal knowledge to its FtP panels (paragraph 116); and there is guidance on fair procedure including that (i) “all parties have an equal opportunity to present evidence” (paragraph 118), (ii) students are encouraged to have a supporter or legal representative at the hearing (paragraph 119) and (iii) student representatives should have the opportunity to ask questions of witnesses (paragraph 121).

It is said that, where sanctions are considered appropriate, they should not be designed to punish (paragraph 125); and the panel should start with consideration of the least serious sanction, giving reasons for rejecting a less a severe sanction than that imposed (paragraphs 126-127), students only being expelled if that is the only way to protect the public. Expelled students, it is said, should be added to the “excluded student database” (paragraph 145), so that other HEIs offering medical degrees and other relevant courses are aware of the decision. Expulsion on the basis that a student is not fit to practise medicine may therefore result in a permanent exclusion from the opportunity of entering the medical profession, at least in the UK.

Thus, a decision by an HEI in relation to a medical student may have a particularly profound impact on that student’s future; and may be more likely to draw a challenge, by way of complaint or legal proceedings. It is no coincidence that, at the time of the events that provoked the HEI decision about which complaint is made, each of the Claimants was a medical student.

Where a student is dissatisfied with a decision of an HEI, there are a number of courses open. He or she may complain to the HEI; and, if dissatisfied with the result of that complaint, refer the matter to the OIA. I consider that procedure in more detail below (see paragraphs 23 and following). In appropriate cases, the student also has the option of making a claim against the HEI in contract or for discrimination under the Equality Act, usually brought in the county court; or by way of judicial review in the Administrative Court. In this context, this court has accepted a wide range of HEI decisions affecting students as being justiciable by way of judicial review, including – as we know as a result of Mr Lawson’s diligence – a decision to expel a student for poor academic performance without prior warning or notice as required by the relevant rules (R v Sheffield Hallam University ex parte R [1995] ELR 267), a failure of an HEI disciplinary panel to follow a fair procedure (R v Chelsea College of Art and Design ex parte Nash [2000] ELR 686), a decision on the level of fees by reference to the classification of home and overseas students (R (Mitchell) v Coventry University [2001] EWHC 167 (Admin)), and the decision to expel a student from a medical course on grounds of unfitness to practise (Higham v University of Plymouth [2005] EWHC 1492 (Admin)).

The relationship between a reference to the OIA by way of complaint and legal proceedings arising out of the same facts is at the heart of the applications before me. Each of the claims before me is for judicial review of a decision of the relevant HEI to expel the Claimant from his or her medical course. Therefore, although some of the things I say may be applicable to claims brought in the county court, the focus of this judgment is upon the relationship between an OIA reference and judicial review proceedings in this court.

As I have indicated, each claim before me is a challenge by way of judicial review to a decision to terminate the Claimant’s participation in a medical course, which is equivalent to expulsion. In relation to the applications to stay those claims, there are two relevant procedural provisions.

First, CPR rule 54.5(1) provides that, in a judicial review claim, the claim form must be filed promptly and, in any event, not later than three months after the grounds to make the claim arose, i.e. usually the date of the decision which is sought to be challenged. Generally, the courts recognise the importance of finality in administrative decisions. Therefore, whilst the court may grant an extension of time for filing a claim under its case management powers (see CPR rule 3.1.2(a)), it will not do so unless persuaded that there is a good reason for the delay. Section 31(6) of the Senior Courts Act 1981 particularly provides that:

“Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant (a) leave for the making of the application or (b) any relief sought on the application, if it considers that the granting of the relief sought would likely cause substantial hardship to, or substantial prejudice the rights of, any person or would be detrimental to good administration.”

Second, in each of the applications before me, the Claimant seeks a stay pending completion of the OIA procedure. The court has an inherent power to stay the whole or any part of proceedings, which is recited in CPR rule 3.1(1)(f). In recognition of the fact that stays might be appropriate in a very wide variety of circumstances, that power is general and unrestricted. The CPR generally encourage stays to allow for the settlement of a claim (see, e.g., CPR rule 26.4).

None of the claims is in the county court; but complaints by students in respect of HEIs may fruit in county court claims, notably in contract or for discrimination. I should briefly refer to the provisions in relation to the time in which those claims must be brought, as they are indirectly relevant to the applications before me.

Contract claims have a limitation period of six years, although a claimant may have difficulties if a contract claim is in substance a public law claim (Clark v University of Lincolnshire and Humberside [2000] EWCA Civ 129 at [17]).

The time limit for bringing a discrimination claim under the Equality Act is generally six months (section 118). However, in respect of certain claims, the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (SI 2015 No 1392) have extended that period, where there has been a reference to the OIA. Those regulations are made expressly to comply with article 12 of Directive 2013/11/EU of the European Parliament and Council of 21 May 2013 on alternative dispute resolution (“ADR”) for consumer disputes (“the ADR Directive”). The ADR Directive requires Member States to ensure that recourse to non-binding ADR does not prevent a party from “initiating judicial proceedings in relation to that dispute as a result of the expiry of limitation or prescription periods during ADR procedure” (article 12). By article 2(1)(i), the ADR Directive does not apply to the public providers of further or higher education; but this exemption was not incorporated into the law of England and Wales (see regulation 7 of the Alternative Dispute Resolution for Consumer disputes (Competent Authorities and Information) Regulations 2015 (SI 2015 No 542). In any event, in my view it is both telling and right that, for the purposes of the Directive, a reference to the OIA is regarded for these purposes as a means of Alternative Dispute Resolution (“ADR”) and the OIA has been approved as the consumer ADR body for higher education.

The time limit for discrimination claims has been extended in two ways. First, a new section 118(3) of the Equality Act extends the six-month period to nine months where a reference to the OIA has been made within six months of the date of the discriminating act (e.g. the decision of the HEI of which complaint is made). Second, a new section 33B of the Limitation Act 1980 and a new section 140AA(3) of the Equality Act have the effect of extending the time limit to “eight weeks after the non-binding ADR procedure ends”.

Although the weight to be given to this is necessarily limited, these new provisions recognise the importance and public interest in disputes being resolved without recourse to the courts; and the need, in some circumstances, to allow sufficient time for any ADR procedure to be concluded before requiring court proceedings to be commenced and pursued.

As a result of perceived deficiencies in the visitors’ jurisdiction, section 13 of the Higher Education Act 2004 (“the 2004 Act”) empowered the Secretary of State to designate an independent body to operate a student complaints scheme. The OIA, a body corporate and a registered charity, was so designated in 2005.

By section 14 of the 2004 Act, a designated operator must comply with the duties set out in Schedule 3 to the Act. That provides that the designated operator must provide a scheme for the review of “qualifying complaints” against “qualifying institutions”, which meets the conditions set out in Schedule 2. A “qualifying complaint” is defined in section 14, to be “a complaint about an act or omission of a qualifying institution” which is made by a student or former student of that institution, except to the extent that it relates to academic judgment. Section 11 defines “qualifying institution” to include all universities which have been granted the power to award degrees by Act of Parliament, Royal Charter or identified statutory provisions; and, as amended by the Consumer Rights Act 2015, it now includes all HEIs with degree-awarding powers, and all HEIs in receipt of student support funding whether or not they have degree-awarding powers. Each Defendant in the claims before me is a “qualifying institution”.

In line with its statutory obligation, the OIA has formulated a scheme, as set out in the Rules of the Students’ Complaints Scheme (“the OIA Scheme Rules”), the most recent version of which was published in July 2015. (References in this judgment to a “rule” are references to a rule within the OIA Scheme Rules, unless otherwise apparent.) All qualifying institutions are obliged to subscribe to the scheme, which effectively excludes the visitors’ jurisdiction over student complaints (section 20 of the 2004 Act). Some HEIs which are not obliged to subscribe, nevertheless voluntarily do so. Over seven hundred HEIs now subscribe to the scheme. The scheme is funded by the subscribing HEIs (rule 15.2). The scheme does not charge fees to students, for whom it is – and must be – a free service (paragraph 8 of Schedule 2 to the 2004 Act (“Condition G”), and rule 15.1).

In describing “Condition B”, paragraph 3(1) of Schedule 2 to the Act requires the scheme to enable every qualifying complaint made about a qualifying institution to be referred under the scheme; but paragraph 3(2) provides that:

“A scheme does not fail to meet Condition B only because it contains some or all of the following –

…

(c)

provision that a qualifying complaint is not to be referred under the scheme if –

(i)

relevant proceedings have been concluded, or

(ii)

relevant proceedings that have not been concluded have not been stayed.”

“Relevant proceedings” are defined in paragraph 3(3) as “proceedings relating to the subject matter of the qualifying complaint that have been brought at first instance before a court or tribunal.”

Once any complaint is received, the OIA’s first task is to determine whether it is within the jurisdiction of the scheme as provided for by the OIA Scheme Rules; and it must dismiss the complaint if it does not have jurisdiction (rule 5.3). In this regard, there are provisions in respect of the time within which a complaint must be made, and provisions identifying complaints not otherwise covered by the scheme.

A student wishing to make a complaint to the OIA must normally first exhaust the internal complaints or academic appeals procedures of his or her HEI (rule 4.2). The HEI should issue a Completion of Procedures Letter at the end of that process (rule 4.3). The student must bring any complaint to the OIA within 12 months of the date of the Completion of Procedures Letter (rule 4.5).

In line with paragraph 3(2) of Schedule 2 to the 2004 Act, rule 3.3 duly provides, under the heading “Complaints Not Covered”:

“The Scheme does not cover a complaint to the extent that… the matter complained about was the subject of court or tribunal proceedings and those proceedings have been concluded, or the matter is the subject of court or tribunal proceedings and those proceedings have not been stayed.”

The OIA provides further guidance on this in its “Guidance Note on Eligibility and the Rules”, which, in respect of rule 3.3, says:

“The OIA will not consider matters which have already been decided by the courts. We cannot consider complaints where the matter is or becomes the subject of court or tribunal proceedings which have not been stayed (adjourned or put on hold). In signing the Complaint Form the student acknowledges that s/he must inform the OIA immediately if any part of the complaint is being dealt with in the courts or by another body.

We may ask to see the claim form and any defence filed in order to establish whether the legal proceedings relate to the same subject matter. If the legal proceedings have been ‘stayed’ or ‘adjourned’ by the court, we may ask to see the relevant court order.

If a student has applied for permission to bring a judicial review claim against the Member HE Provider and has been refused permission, we would normally consider that those proceedings have been concluded and we would not look at their complaint. However, we may accept the complaint if the judge has identified the OIA as an ‘alternative remedy’ available to the student, and has refused permission on that basis. We would only accept such a complaint for review provided the judge has not made any findings on the merits of the case.”

Therefore, the OIA will not consider a complaint if the courts have already considered and concluded a claim based upon the same subject matter. Furthermore, on the basis of this guidance (as presaged in paragraph 3(2)(c) of Schedule 2 to the 2004 Act), it seems that the OIA will regard a judicial review where permission to proceed has been refused on the merits of the claim as being circumstances in which “proceedings have been concluded” for these purposes; but not where permission is refused without consideration of those merits. That seems to me to be consistent with a proper construction of the rule. I do not consider R (Carnell) v Regent’s Park College [2008] EWHC 739 (Admin), to which I was referred, suggests anything to the contrary.

Once it has been determined that the OIA has jurisdiction over the complaint, it proceeds with its review, appointing an individual “reviewer” to perform the task. Rule 6 sets out the relevant procedure:

“6.1

Once a determination has been made under Rule 5.3 [that the complaint is eligible for review], the Reviewer will carry out a Review of the complaint to decide whether it is Justified, Partly Justified or Not Justified.

6.2

In deciding whether a complaint is Justified the Reviewer may consider whether or not the Member HE Provider properly applied its regulations and followed its procedures and whether or not a decision made by the Member HE Provider was reasonable in all the circumstances.

6.3

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.

6.4

The Reviewer shall not be bound by legal rules of evidence nor by previous decisions of the OIA.

6.5

The nature and extent of the Review will be at the sole discretion of the Reviewer. When the Reviewer has determined that he or she has all of the material he or she considers necessary to make a decision, the Reviewer will issue a Complaint Outcome.”

Rule 6.3 indicates that the default position is a review without an oral hearing; and the evidence was that, in practice, the review is almost invariably done on the basis of the papers lodged, without oral evidence or submissions.

The reviewer has to determine whether the complaint is justified, partly justified or not justified. Rule 7 provides that, where it is justified in whole or part, then the reviewer may make recommendations that the relevant HEI “should do something or refrain from doing something”. Those recommendations (it is said) might include, but are not limited to, the following:

“7.1.1

that the complaint should be referred back to the [relevant HEI] because its internal procedures have not been properly followed in a material way;

7.1.2

that the [HEI] should take a course of action that the Reviewer considers to be fair in the circumstances;

7.1.3

that the [HEI] should change the way it handles complaints;

7.1.4

that the [HEI] should change its internal procedures or regulations;

7.1.5

that a financial remedy should be paid to the Complainant, including, at the Reviewer’s discretion, an amount for inconvenience and distress;

7.1.6

that the complaint should be considered in another forum.”

Compared with restricted remedies available to the court, it is clear that the OIA is able to make wide ranging recommendations that are particularly tailored to the case before it, including a flexible response to any unreasonableness or unfairness it concludes has occurred.

The OIA expects the relevant HEI to comply promptly with any recommendations made (rule 12.1); although there is no sanction, other than publicity (rules 12.3 and 12.4), if it does not. I understand that, in practice, HEIs invariably do comply with any recommendation made.

Where the reviewer considers the complaint is not justified he cannot make recommendations, but nevertheless may make suggestions that the HEI should consider taking a course of action or amending its internal procedures or regulations (rule 7.5).

The evidence is that the OIA meets its key indicator target of processing and closing 75% of its references within six months of receipt, with an average period to complete its review of 99 days.

The nature of the OIA scheme has been considered in a number of cases to which I was referred, notably by the Court of Appeal in R (Siborurema) v OIA [2007] EWCA Civ 1365, R (Maxwell) v OIA [2011] EWCA Civ 1236 and R (Burger) v OIA [2013] EWCA Civ 1803, as well as this court in Carnell (cited at paragraph 31 above), R (Peng Hu Shi) v King’s College, London [2008] EWHC 857 (Admin), R (Hamilton) v Open University [2011] EWHC 1922 (Admin), R (Matin) v University College, London [2012] EWHC 2474 (Admin), R (Kwao) v University of Keele [2013] EWHC 56 (Admin), R (Crawford) v University of Newcastle upon Tyne (No 1) [2014] EWHC 162 (Admin), R (Crawford) v University of Newcastle upon Tyne (No 2) [2014] EWHC 1197 (Admin), R (Thilakawardhana) v OIA [2015] EWHC 3285 (Admin) and R (Gopikrishna) v OIA [2015] EWHC 1224 (Admin). Of particular importance and value are relevant principles set out by Mummery LJ in Maxwell at [23], which have been adopted and developed in the later cases.

For the purposes of the applications before me, it is unnecessary to consider each of these authorities in detail. The following relevant themes appear in them.

When exercising a variety of functions, including those relating to disciplinary matters, FtP and complaints, although the HEI and student are likely to be in a contractual relationship, an HEI is exercising public functions that are susceptible to challenge by way of judicial review. In the various cases in which decisions of HEIs have been challenged, it has never been suggested otherwise (see, e.g., Carnell, Peng Hu Shi and Crawford (No 1)); and, in Clark (a pre-OIA case) at [29], Lord Woolf MR stated in terms that, for the purposes of this court’s supervisory jurisdiction, “A university is a public body”. Specifically, in respect of complaints by a student of an HEI he or she has attended, as Pill LJ said in Siborurema (at [49(f)]):

“There is a strong public element and public interest in the proper determination of complaints by students to HEIs”.

Equally, the OIA exercises the public function of conducting a fair and impartial review of a student’s unresolved complaint about the acts and omissions of an HEI, on the basis of the materials before it and drawing upon its own expertise and experience of higher education, with a view to determining whether the complaint is justified in whole or part, and, if so, making recommendations to the HEI. There is, again, no suggestion that this is not a public function, or that decisions of the OIA are anything but justiciable in this court by way of judicial review. Of course, as the case names above suggest, its decisions too have been regularly judicially reviewed, and it has always been accepted that the court has jurisdiction.

On a reference of an unsatisfied complaint, the OIA considers, not only whether the HEI has acted with procedural propriety (i.e. in accordance with the relevant regulations and its own procedures), but also whether its decision was reasonable in all the circumstances. “Reasonable” here means broadly reasonable in the non-technical sense, and is not restricted to the antithesis of legally perverse or Wednesbury unreasonable.

The OIA has a broad discretion both as to the scheme it formulates, and as to the form, nature and extent of its investigation into a particular case. However, its procedures are intended by Parliament to be an alternative to court, procedures which are free of charge, confidential, informal and inquisitorial, with a view to resolving complaints in a non-judicial manner and without recourse to the court, by determining whether the HEI’s actions were procedurally compliant and reasonable in all the circumstances, without adjudicating on formal rights and obligations; and making recommendations for steps that may be more flexible, constructive and acceptable to all parties than the restricted remedies available to a court of law. Given that Parliament has determined the role of the OIA, and conferred a broad margin of discretion in how it exercises its functions, the court will only interfere with its decision in a particular case with especial caution.

The function of the OIA scheme is therefore inherently different from that of the court, which is to determine the rights and obligations of the parties, following a full fact-finding investigation involving the application of relatively stringent rules including those which apply to evidence, before awarding restricted formal legal remedies such as damages and declarations.

Because of these different functions, a reference to the OIA does not provide a coextensive remedy to a challenge by way of judicial review. As a result, the availability of an OIA reference to a student does not mean that that student is denied all access to this court. To the extent that cases such as Peng Hu Shi and Carnell suggest the contrary, respectfully I do not agree. As Mummery LJ put it in Maxwell (at [23(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.”

Several later cases have supported the view that, although the court may be willing to delay consideration of a judicial review challenge unless and until an OIA reference has been made and has run its course, the availability of this alternative procedure does not in practice effectively exclude judicial review: see, e.g., Matin at [33] per Wyn Williams J, Kwao at [70]-[71] per His Honour Judge Graham Wood QC, and Crawford at [143] per Andrew Grubb sitting as a Deputy High Court Judge. With respect to those who have suggested a contrary view, that must be right: in the exercise of its supervisory jurisdiction, while this court is willing to exercise temporary restraint to encourage ADR, it is only usually unwilling to entertain a judicial review challenge at all where the alternative procedure is intended to exclude that jurisdiction altogether, e.g. where there is a right of appeal. It is clear that that is not the intention of this statutory scheme, which expressly envisages both procedures being applied, in order, to the same subject matter (see paragraph 26 above) .

The OIA scheme and court proceedings thus respectively offer advantages and disadvantages to a student who is dissatisfied with his or her treatment by an HEI. As Parliament specifically intended, and as a result of the characteristics I have identified, the former offers an attractive alternative to formal legal proceedings; but, although its findings and decision may give pointers to its view on the formal legal position, it does not and cannot determine legal rights and obligations. The latter offers a forum for the resolution of issues in relation to formal legal rights and obligations, but at some considerable cost, not only in terms of money but also publicity and lack of flexibility in terms of both process and remedies. As Mummery LJ succinctly put it in Maxwell (at [37]):

“The new processes have the advantage of being able to produce outcomes that are more flexible, constructive and acceptable to both sides than the all-or-nothing results of unaffordable contests in courts of law.”

Because of the advantages of the OIA scheme, most students who have unsatisfied complaints against an HEI at which they have been studying refer the matter to the OIA, and do not wish to pursue legal proceedings. The OIA receives about 2,000 complaints per year.

However, some students do wish to pursue a legal claim. For example, some are intent on establishing the fact that the HEI has been guilty of unlawful discrimination against them, and wish to have a legal determination to that effect. Others wish to pursue legal remedies, but only if and when reference to the OIA does not result in an outcome acceptable to them. Such students issue proceedings instead of, or as well as, referring the matter to the OIA; or at least wish to preserve and protect their position on proceeding in the court, dependent upon the result of the OIA reference.

Where the OIA has concluded its investigation – and has reported and made any appropriate recommendations or suggestions to the HEI – because it is not obliged to make specific factual findings and it is no part of its function to determine rights and obligations, whatever its conclusions may be, subject to relevant time limits, the student has the right to apply to the court for relief on the basis of his or her strict legal rights as determined on the basis of the facts as found by the court. However:

Although the functions of the OIA and the courts are conceptually and legally distinct, the OIA procedure may make court proceedings unnecessary in practice, as it is designed to do, because, even when the student is otherwise intent on pursuing legal proceedings, it may result in a recommendation accepted and implemented by the HEI which represents an acceptable outcome for the student, e.g. where a student who has been expelled from a course is reinstated. Therefore, although resolving disputes in a different way, the OIA procedure is ADR properly so called.

In the debate before me, the proposition or maxim that judicial review will not be available where there is an alternative remedy was examined in some depth; and it is also considered in a number of the authorities to which I have referred. Whilst it may be impossible to reconcile all of the observations that have been made in this context, I consider the public law principles involved to be well-established.

A body, when making any decision in the exercise of public functions, is subject to the supervisory jurisdiction of this court in the form of judicial review. If it acts improperly in exercising those functions, this court has the power to intervene; although it has a discretion as to whether to accept and hear such a claim and, having done so, as to what relief, if any, it should grant.

However, in addition to recourse to this court, an individual affected by such a decision may have other avenues of redress. The availability of an alternative forum and so a potential alternative remedy – and the nature of that remedy – may have a substantial effect on the exercise of the court’s discretion in these circumstances. I should emphasise that the availability of a such a potential alternative remedy does not – indeed, cannot – exclude the supervisory jurisdiction of the court; but there are circumstances in which the availability of an alternative course will result in the court exercising restraint in the exercise of that jurisdiction, notably when considering whether the court should accept and hear the claim (i.e. prior to, or no later than at, the permission stage), but also when considering relief if unlawfulness is proved. In either event, there is no hard-edged question concerning jurisdiction, but rather the exercise of discretion on the basis of the circumstances of the particular case. In deciding whether to exercise restraint in the face of an alternative remedy, the court will consider the potential for the alternative to provide a means of redress, taking into account relative convenience, expedition, cost and effectiveness; and exercise its judgment to determine whether the alternative remedy is more suitable, so that the court proceedings should be dismissed, or at least stayed, to allow it to proceed to a conclusion.

Usually, the court can properly consider the issue of whether an alternative remedy is more suitable at the outset of a judicial review claim, before the defendant files any summary grounds; or, if some response to the claim is necessary to consider the issue in a properly informed way, immediately after those grounds are filed, at the permission stage. It is well-established – but worth emphasising here – that a claimant is required to state in the claim form whether a remedy alternative to judicial review exists; and, if so, whether or not a claimant is pursuing that remedy; and, if not, why not, setting out reasons why judicial review is appropriate notwithstanding alternative remedies (see, e.g., C Lewis: Judicial Remedies in Public Law (5th Edition) (2014) (“Lewis”) at paragraph 9-062, and D Brennan et al: Bullen, Leake and Jacob’s Precedents of Pleadings (18th Edition) (2015) (“Bullen, Leake & Jacob”) at paragraph 80-06, both citing R v Humberside County Council ex parte Bogdal (No 2) [1992] COD 467). If the claim form fails to identify an available alternative, the defendant should do so in its Acknowledgment of Service, so that the court is aware of it no later than when it considers permission to proceed.

Where the court concludes that an alternative course to court proceedings is more appropriate, at least in the immediate term, then the court may dismiss the judicial review claim or refuse permission to proceed with it (e.g. when the alternative course will dispose of all issues between relevant parties, such as when there is a statutory appeal to another court, so that the judicial review will never have substance); or simply stay the judicial review proceedings either indefinitely or until the alternative course has been played out (e.g. where the alternative course will not necessarily dispose of all the issues between the parties).

Consideration of a stay, again, involves the exercise of judicial discretion, which in itself involves the fact-specific exercise of judgment. No particular circumstance in a case will necessarily be determinative, e.g. even where potentially crucial legal issues arise, the court is entitled to take into account the potential for ADR to resolve the dispute in practice, even if that procedure will not formally determine those issues.

The potential benefits, to both parties and the administration of justice, of resolving public law disputes without recourse to the courts, should be neither forgotten nor underestimated. Thus, in his report, Access to Justice (1996), Lord Woolf said (at page 251):

“Judicial review ought to be conserved as a remedy of last resort. Before an application is made to initiate proceedings for judicial review, the proposed [claimant] should have taken advantage of any system of dispute resolution available, unless it would be unreasonable to do so, for example because the complaints procedure is too slow”.

In practice, ADR is not prevalent in the sphere of public law disputes. To an extent, this is understandable (see D Foskett, Foskett on Compromise (8th Edition) (2015) at paragraph 33-06). In many such cases, the decision-maker may consider that the relevant decision, particularly if judicial or quasi-judicial, cannot appropriately be the subject of compromise, because of the nature of the public obligations imposed upon the decision-maker who is required to act within the relevant bestowed powers, and the fact that any decision may have a knock-on effect for other individuals affected, directly or indirectly. Furthermore, either the decision-making authority and/or the individual who is the subject of the relevant decision may, understandably and properly, wish to have, not just a practical solution, but a positive finding in his, her or its favour (e.g. where the decision is said to be discriminatory).

However, where there is a statute-based complaints procedure, intended by Parliament to be not only more attractive to both the prospective parties but to be used by them as an alternative to court proceedings – without affecting their substantive rights, and without shutting out access to the court to prove and enforce those rights – the factors which may make ADR inappropriate in other circumstances fade in significance.

In this context, R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 is instructive. The case has to be read against the backdrop that CPR rule 1.4(1) imposes an obligation on the court to “further the overriding objective by actively managing cases”. By virtue of rule 1.4(2), “active case management” is defined to include, not only “helping the parties to settle the whole or part of the case” (rule 1.4(2)(f)), but also, in rule 1.4(2)(e):

“encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure”.

Since the introduction of these provisions, recognising the benefits to both parties and to the administration of justice, the courts have encouraged means of resolving disputes, in whole or in part, otherwise than by the courts themselves.

In Cowl, the seven claimants were residents in a care home owned and operated by the defendant (“Plymouth”). They sought judicial review of a decision of Plymouth confirming the decision to close the home. Plymouth’s response was to say that it was willing to treat the claimants’ grounds for seeking judicial review and the evidence submitted in support as a complaint, which it was prepared to consider under the provisions of section 7B of the Local Authority Social Services Act 1970, by setting up a panel to be convened as soon as reasonably practicable and chaired by an independent person. Although the panel’s decision would not be binding on the local authority, Plymouth said that it was conscious of the need to give proper consideration to its conclusions, and to the possible consequences of not doing so, as set out in earlier authorities.

Scott Baker J refused the substantive judicial review. The claimants appealed. In the Court of Appeal, Lord Woolf LCJ, giving the judgment of the court, described Plymouth’s proposal concerning the complaints procedure as “a very sensible proposal to make”. Unfortunately, it was not taken up, and lengthy judicial review proceedings were initiated and contested. In dismissing the appeal, Lord Woolf said this:

“1.

The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress.

2.

The appeal also demonstrates that courts should scrutinise extremely carefully applications for judicial review in the case of applications of the class with which this appeal is concerned. The courts should then make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts. The legal aid authorities should co-operate in support of this approach.

3.

To achieve this objective the court may have to hold, on its own initiative, an inter partes hearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts. In particular the parties should be asked why a complaints procedure or some other form of ADR has not been used or adapted to resolve or reduce the issues which are in dispute. If litigation is necessary the courts should deter the parties from adopting an unnecessarily confrontational approach to the litigation. If this had happened in this case many thousands of pounds in costs could have been saved and considerable stress to the parties could have been avoided.

….

14.

It appears that one reason why the wheels of the litigation may have continued to roll is that both parties were under the impression that unless they agreed otherwise the complainants were entitled to proceed with their application for judicial review unless the complaints procedure on offer technically constituted an “alternative remedy” which would fulfil all the functions of judicial review. This is too narrow an approach to adopt when considering whether an application to judicial review should be stayed. The parties do not today, under the CPR, have a right to have a resolution of their respective contentions by judicial review in the absence of an alternative procedure which would cover exactly the same ground as judicial review. The courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process. The disadvantages of doing so are limited. If subsequently it becomes apparent that there is a legal issue to be resolved, that can thereafter be examined by the courts which may be considerably assisted by the findings made by the complaints panel.

….

27.

This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. If they cannot resolve the whole of the dispute by the use of the complaints procedure they should resolve the dispute so far as is practicable without involving litigation. At least in this way some of the expense and delay will be avoided….”.

As emphasised in this passage, the focus here is on the potential for the dispute, in whole or major part, to be resolved outside the judicial review process. For the court to exercise restraint, it does not have to be satisfied that the alternative is coextensive, or guaranteed to determine every issue that would have to be determined in a judicial review; nor is it necessary for the remedies available in a judicial review to be available by way of the alternative.

It is also noteworthy that, although the court did not criticise the judge who gave permission to proceed, Lord Woolf suggested (at [13]) that the use of the complaints procedure could and should have been investigated by the court at a very early stage; and consideration given to an adjournment (or, presumably, a stay) to allow that procedure to run its course, before the judicial review was progressed even to consideration of permission to proceed, because:

“A great deal of expense, a great deal of time and a great deal of anxiety to the claimants could have been avoided if the complaints procedure had been used.”

These strains were taken up by Scott Baker J, then the lead judge of this court, in his Practice Statement (Administrative Court: Listing and Urgent cases) [2002] 1 WLR 810 at [5], in which he said:

“I draw attention of litigants and legal advisers to the decision of the Court of Appeal in [Cowl]. The nominated judges are fully committed to resolving disputes by alternative means where appropriate and are exploring ways of promoting this.”

Academic texts continue to exhort the message in Cowl (see, e.g., Lewis at paragraph 9-028, 9-049 and 12-043, and Bullen, Leake and Jacob at paragraph 80-06) – but, in this court, it appears to be a largely forgotten authority, perhaps because, for the reasons I have given above (see paragraph 57), ADR is regarded as inappropriate for many public law claims. However, in my respectful view, the observations made by Lord Woolf in that case continue to be apt today where there is an internal complaints procedure, or a procedure to complain to an external body such as the OIA, in circumstances in which, by pursuing such a procedure, the need for recourse to the court may be eliminated or at least reduced in scope. Lewis suggests that ADR may be particularly useful in cases involving education (see paragraph 9-062, and especially footnote 219); and it seems to me that it is most likely to have a role to play in any circumstances in which there has been a relationship between the decision-maker and the individual over some time, particularly when that relationship will or may continue.

The continuing aptness of Lord Woolf’s observations to OIA cases was also recognised by Andrew Grubb sitting as a judge of this court in Crawford (No 2), which involved a claim for judicial review which was initially stayed pending an OIA reference. Having referred to Cowl, Mr Grubb expressed the view that Lord Woolf “did not exclude from the ambit of ADR procedures, particularly in public law cases, dealing with complaints including ombudsmen, such as the OIA”. Lord Woolf did not; and, as I have indicated, for good reason. A reference to the OIA is properly described as an ADR procedure.

The early finality of executive and administrative decisions is an important principle, and consequently, as a general principle, prompt resolution of public law claims by the courts is considered to be in the public interest – hence the relatively tight and strict time limit for the issuing of judicial review proceedings. However, the courts have also recognised that that principle may sometimes have to bow in the face of other interests, both public and private. Where there is an available ADR procedure – especially when it is provided by Parliament – the interests of the public body and citizen in having a more attractive procedure and, very importantly, the public interest in resolving claims outside the court system where possible, will be of such weight that the balance of interests will be in favour of giving a proper opportunity for the dispute to be resolved, in whole or in part, by the alternative procedure; even if that may delay the final resolution of the dispute, if recourse to the courts is in the event necessary.

Consequently, where there is such a complaints procedure as provided by the 2004 Act through the OIA, the court should be slow to become engaged with issues arising out of the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion; and, where either a claimant or a defendant (or both) wish to progress court proceedings before then, they must provide the court with good reasons for doing so. In my view, both parties and the court should approach the issues raised in the applications such as those before me – and all issues that arise as a result of the relationship between a reference to the OIA and judicial review proceedings – with this uppermost in mind.