The Court of Appeal has recently given judgment in R (Maxwell) v Officer of the Independent Adjudicator for Higher Education  EWCA Civ 1236. The Office of the Independent Adjudicator (OIA), for those who struggle to keep up with the ever-expanding list of ombudsmen and regulators, was established by the Higher Education Act 2004 and is a body (a company limited by guarantee in fact) which reviews complaints made by students against higher education institutions. Although it has been found to be amenable to judicial review (see the Court of Appeal’s decision in Siborurema), the extent of the ordinary courts’ intrusion into its decision-making processes is limited.
Put shortly, Ms Maxwell wanted the OIA to have made a finding that she had been discriminated against her on grounds of disability by Salford University. Whilst the complaint she had originally brought had been upheld by the OIA, and recommendations had been made to the University, Ms Maxwell was not satisfied that it had gone far enough. She claimed that the OIA had both the power, and, in the circumstances of her case, a duty, to make a finding of unlawful disability discrimination. It could not rationally ‘take it into account’ without making a finding.
The Court of Appeal disagreed. Lord Justice Mummery, in a typically clear and concise judgment, held that it was the role of courts and tribunals to make findings on issues of disability discrimination; it was the role of the OIA to review complaints made and see if the decision reached by a university was reasonable and justified. He stated:
“…the courts are not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues, such as whether or not there has been disability discrimination. Adjudication of that issue usually involves making decisions on contested questions of fact and law, which require the more stringent and structured procedures of civil litigation for their proper determination… It is contrary to the whole spirit of a scheme established for the free and informal handling of students’ complaints that the outcomes under it should replicate judicial determinations, which continue to be available in civil proceedings in the ordinary courts, for which the OIA is not and was never intended to be a substitute.”