In three linked cases the Administrative Court has just given important general guidance on the relationship between judicial review proceedings and references to the Office of the Independent Adjudicator for Higher Education. The three linked cases were R (Zahid) v University of Manchester, R (Rafique-Aldawery) v St George’s, University of London, and R (Sivasubramaniyam) v University of Leicester [2017] EWHC 188 (Admin). The cases were decided together by judgment of Mr Justice Hickinbottom delivered on 10 February 2017. Read more »
Higher education claims: Court gives general guidance on JR and OIA complaints
February 13th, 2017 by Jonathan Auburn
Plagiarism, academic judgment and the OIA
June 11th, 2013 by Paul GreatorexThe subject of plagiarism always brings to mind Tom Lehrer’s brilliant song “Lobachevsky”, and the same seems to go for Males J as shown by the opening paragraph of his recent judgment in R (Mustafa) v Office of the Independent Adjudicator [2013] EWHC 1379 (Admin):
“The Harvard academic and songwriter Tom Lehrer recommended plagiarism as the route to academic success, wealth and fame, but his tongue was firmly in his cheek. For universities and other educational bodies plagiarism is no laughing matter, especially with the vast scope for such activity presented by the internet. Nor is it for those students who are accused of having committed plagiarism, perhaps wrongly, and who may wish to appeal against any such finding. The question raised by this case is whether a university’s decision that a student has committed plagiarism is final or whether it can form the subject of a complaint to the Office of the Independent Adjudicator for Higher Education (“the OIA”).”
The Claimant was studying for a Master’s degree at Queen Mary University of London and was awarded no marks for an essay submitted on the grounds that parts of it were plagiarised. His complaint to the OIA was rejected on the ground that the existence (and if so, the extent) of plagiarism was a matter of academic judgment and so outwith the OIA’s jurisdiction: see section 12 of the Higher Education Act 2004 and rule 3.2 of the OIA rules.
Males J held that such complaints are not automatically excluded because “the question whether plagiarism has been committed often (and perhaps usually) will require an exercise of academic judgment, but that it need not necessarily do so”: para 54. However, the claim failed because the OIA had not approached the matter otherwise, but had correctly considered whether the complaint related to a matter of academic judgment: para 56.
The judge found that even if he was wrong about this and the OIA had proceeded on the wrong basis (and it is worth noting that the position of the OIA and the university was that decisions about plagiarism always involve academic judgment: see paras 37 and 39), such an error was immaterial because the complaint clearly did relate to a matter of academic judgment, namely whether there had been “proper acknowledgment” by the Claimant of what he was doing: paras 59-61.
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Office of the Independent Adjudicator
November 9th, 2011 by Edward CapewellThe Court of Appeal has recently given judgment in R (Maxwell) v Officer of the Independent Adjudicator for Higher Education [2011] 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.”