Judicial review of the Office of the Independent Adjudicator for Higher Education; non-material error of fact; failure to exhaust internal procedures

February 14th, 2013 by Jane Oldham

While the OIA is amenable to judicial review, the courts will generally be very slow to interfere with its decisions, and where an inferior tribunal has made an error of fact, relief by way of judicial review will only be granted if the error is material. Mostyn J identified and applied these principles when dismissing a challenge to the OIA’s decision that the LSE had not been required to publish either the marking scheme or the assessment criteria for an examination which the Claimant had failed.

The LSE’s rules stated that it was required to publish assessment criteria for the course. The Claimant complained, internally, of the failure to publish a “marking scheme”. That complaint was dismissed on internal appeal. He complained to the OIA that the LSE had failed to publish “assessment criteria”. The OIA held that the LSE had not been required to publish “assessment criteria or marking schemes”.

Mostyn J held that there was a clear distinction between the LSE’s marking scheme, which  essentially set out model answers to the examination questions, and its assessment criteria, which were indicators of the standard needed for a student to achieve particular grades in that examination and which did not describe the syllabus or the scope or subject matter of the course.

The OIA had erred in conflating the marking scheme and assessment criteria, and had therefore erred in holding that the LSE was not required by its rules to publish assessment criteria. However, that error was not material, as publication of the assessment criteria could not have made any difference to the Claimant’s performance in his examination.

Further, the OIA was likely to have held, had she appreciated the distinction between the marking scheme and the assessment criteria, that the Claimant had failed to exhaust his internal remedies in relation to publication of assessment criteria, as his internal complaint had concerned the marking scheme.

Accordingly if the OIA was directed to reconsider the complaint, Mostyn J was in no doubt that it would be dismissed.

Accordingly the application for judicial review was dismissed.

R (Burger) v Office of the Independent Adjudicator for Higher Education [2013] EWHC 172 (Admin)


Update on key provisions of draft Special Educational Needs legislation

September 13th, 2012 by Jane Oldham

The House of Commons Library has today published a Standard Note summarising what it identifies as the “key provisions”, relating to England, of the draft legislation on provision for children and young people with special educational needs. The draft legislation was published, for consultation and pre-legislative scrutiny, on 3 September 2012 (click here).  The Note also sets out the background to these proposals, indicates the issues upon which the views of the Education Select Committee are particularly sought and gives a selection of initial responses to the draft legislation, received from special educational needs and disability organisations.

A link to the full text of the Note can be found on the Parliament website: click here 

The draft legislation extends to England and Wales although as the Note states most of the provisions apply to England only; the Welsh Assembly is currently consulting on proposed changes to the SEN system in Wales.


The Education (Pupil Referral Units) (Application of Enactments) (England) (Amendment) Regulations 2012 /1201

May 10th, 2012 by Jane Oldham

The Education (Pupil Referral Units) (Application of Enactments) (England) (Amendment) Regulations 2012 /1201 were laid before Parliament on 8 May 2012.

Regulation 3 remedies (with effect from 1 September 2012) a gap in section 10 of the Children Act 2004, by  extending, so as to include PRUs, the list of relevant bodies with which local authorities  are required to co-operate in order to improve children’s wellbeing.

Regulations 2 and 4, which come into force on 31 May 2012, applies the Academies Act 2012, with modifications, to PRUs, enabling PRUs to convert to become Alternative Provision Academies.

An overview of how PRUs converting to Academy status will be funded, can be found here.

It remains to be seen how PRUs attaining  the autonomy of academy status, will interact in practice with the  local authority and schools which PRUs are established to support.


Exam boards

July 4th, 2011 by Jane Oldham

If exam boards make a mistake in the questions they set (see https://www.bbc.co.uk/news/education-13978609 for a report about Ofqual’s inquiry) , can a student or parent sue?  The private law possibilities might be (1) for breach of duty of care: but is a duty owed?  (2) breach of contract, the consideration being the entry fee. But if there is a contract, is it with the school, which will normally pay the fee, or might the student or parent have rights under the Contracts (Rights of Third Parties) Act 1999?  Even if a cause of action could be established, the student is likely to face the perennial causation and damages difficulties in private law education claims (“what would have happened if there had been no breach?”) but if anything exacerbated because many other students will be in the same boat.

Exam boards may well be public bodies for the purposes of judicial review, but where a board makes a mistake, it is hard to see what decision is judicially reviewable, apart (conceivably) from a failure to mark fairly in response to the mistake it made – but even there, the Court may say that this is an academic matter, and not one it is going to interfere with.

Jane Oldham