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)

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