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  EWHC 188 (Admin). The cases were decided together by judgment of Mr Justice Hickinbottom delivered on 10 February 2017. Read more »
Ms Tigere has lived in the UK since 2001 and she currently has discretionary leave to remain. She will be able to apply for indefinite leave to remain in 2018. Last year, she was refused a student loan because of her immigration status i.e. she was not settled in the UK. The Supreme Court (majority 3:2) has over-turned the Court of Appeal and found that this settlement criterion breached her rights under Article 14 read with Article 2 of the First Protocol of the ECHR: R (Tigere) v Secretary of State for Business, Innovation and Skills  UKSC 57.
In summary, the Court has found that the settlement criterion for student loans discriminates on ground of immigration status in the enjoyment of the right to education. The regulations in question pursued a legitimate aim, namely targeting resources on those students who are likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay. However, the means chosen to pursue that legitimate aim were not rationally connected to it; Ms Tigere had discretionary leave to remain in the UK and an established private life here. A bright line rule which more closely fitted the legitimate aims of the measure could have been chosen.
I blogged about the High Court and Court of Appeal decisions last year. There is an excellent summary of the Supreme Court’s decision on the UK Human Rights blog. The Supreme Court’s own press summary is also available.
Rachel Kamm, 11KBW
I posted last month about the High Court’s decision in R (Tigere) v Secretary of State for Business Innovation and Skills and The Student Loan Company  EWHC 2452, where Mr Justice Hayden found that the policy for eligibility for student loans was unlawful.
The Court of Appeal has overturned that decision. The full text is available on Lawtel.
Lord Justice Laws (with whom LJ Floyd agreed) concluded that the Secretary of State was justified in promulgating a bright line rule. Any bright line rule must reflect that the Secretary of State was obliged to accord a high priority to opening higher education to those who may deploy their talents here and he had a very broad margin of discretion. Lord Justice Laws then drew an interesting distinction between the roles and processes for setting immigration rules for settlement and education rules for student funding. He concluded that the Secretary of State for BIS was entitled to adopt a criterion dependent on settlement and he was not required to modify it by reference to the fact that the Home Office might alter the Rules by which settlement was achieved from time to time. Further, the Secretary of State for BIS was entitled to rely on the legality, the propriety in public law terms, of the Immigration Rules relating to settled status.
Lord Justice Vos expressed his reasons for allowing the appeal slightly differently. Further to what LJ Laws found, he concluded that the Secretary of State for BIS must ensure that the student funding regulations operated properly in the context of immigration policy. Whilst he could not be expected to make frequent adjustments to the regulations as the Immigration Rules changed, he had to review the situation periodically to ensure that, for example, the requirement of “settlement” remained appropriate in the light of the way that the immigration processes operated. He found that the eligibility requirements were lawful (only) because there had at all relevant times been a discretion to grant indefinite leave to remain to children on section 55 grounds (i.e. the duty to have regard to the need to safeguard and promote the welfare of children in the UK).
Therefore, whilst expressing sympathy for her situation, the Court of Appeal found that the Secretary of State was entitled to have a bright line rule that excluded Miss Tigere from the student loans scheme on ground of her immigration status.
Rachel Kamm, 11KBW
The 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  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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What kind of restrictions can higher education institutions permissibly impose on prospective students? Clearly academic achievement must be one. But is it permissible to combine academic achievement with an overall cap on the number of places available for a particular course? In Tarantino v Italy the Strasbourg court decided that such a cap did not contravene the right to education in Article 2 of the First Protocol (A2P1).
Italy imposes numerical caps on various university courses such as medicine and dentistry based partly on Italian society’s need for members of those professions and partly on the resources of the universities which teach the relevant subjects. The applicants in Tarantino had unsuccessfully applied for medical and dentistry courses, both subjects which were very heavily over-subscribed. They challenged the cap on the basis that it disproportionately interfered with their right to an education.
The ECtHR, applying familiar principles concerning the inherent limitations on the A2P1 right and states’ margin of appreciation, found that the restrictions imposed by Italy were a proportionate means of achieving a legitimate aim and did not therefore violate A2P1. An interesting sub-issue was as to the compatibility of the ‘societal-requirement’ criterion with the principle of free movement of persons enshrined in Article 45 TFEU. The ECtHR seemed to think the criterion a little suspect in EU law terms (whilst obviously not making any finding on the issue) but nevertheless held that the Italian government was “entitled to take action with a view to avoiding excessive public expenditure”. Welcome words in these straitened times no doubt.
On the subject of higher-education restrictions, readers may recall the case of Damien Shannon who sued St Hugh’s College Oxford for refusing him a place on the grounds that he could not demonstrate that he had sufficient means to live in Oxford during his period of study. The case has now been settled with Mr Shannon being offered a place on the MSc in Economic and Social History and the university agreeing to review its existing financial guarantee policy.
You can say what you like about local authorities – and people do, knowing that the authority itself (as opposed to any individual member or employee) cannot sue in defamation. This was first established back in 1891 in Manchester Corporation v Williams  1 Q.B. 94, where it was held that the council could not complain about a letter to a newspaper alleging that “bribery and corruption have existed and done their nefarious work” in a number of its departments.
Although there were subsequently conflicting decisions, the modern position was confirmed by the House of Lords in Derbyshire County Council v Times Newspapers  AC 534, which is often cited for the proposition that local authorities do not have a reputation that they are entitled to protect.
Two recent attempts to extend that proposition to schools and universities have been rejected by the Employment Appeal Tribunal and the High Court respectively.
In Hill v Great Tey Primary School (judgment here) a dinner lady told a child’s parents that their daughter had been tied to a fence and whipped with a skipping rope by some other pupils, and subsequently repeated that to the press. An employment tribunal found that her dismissal for breach of confidentiality and acting in a manner likely to bring the school into disrepute was procedurally unfair but reduced her compensation on the grounds of Polkey and for contributory fault.
On appeal against the remedy decision only, it was argued that the disclosures made were protected by the right to freedom of expression under article 10 of the European Convention on Human Rights. It was accepted that right can be qualified by the aim of protecting the reputation of others, but argued that on the basis of Derbyshire the school, as public body, did not have a reputation it could protect.
The EAT (Langstaff J presiding) rejected this argument, pointing out that the decision in Derbyshire does not apply to all public bodies and further that a school was not a governmental body and was not political. Moreover, said the EAT, a school’s reputation:
“is a matter of importance – in the case of a small primary school in attracting staff, and children. In these days of parental choice, state schools are in competition to secure funding by admitting pupils.”
The tribunal had found that “the speaking out of a member of staff in an uncontrolled way failed to ensure that the flow of information from the school was managed sensibly in such a way as to protect any pupil who might be seen by a parent or another pupil as a transgressor”. The EAT said this showed that the tribunal had in mind “not the interests of an inanimate public institution but the real children, staff and parents who populated and frequented it”.
Meanwhile in Duke v University of Salford  EWHC 196 (QB) (judgment here) the university had sued the author of an internet blog for defamation. The postings complained about included an unfavourable comparison between the university and the leadership of Hezbollah, and a suggestion that the university was “adopting some of the more odious policies of the great Chinese bureaucratic dictatorship”.
Eady J expressed surprise at hearing the submission that a university is not entitled to sue in defamation to protect its reputation, and referred to earlier cases to the contrary which had distinguished Derbyshire on the basis that universities are not an organ of government. The judge said that any public policy decision that universities should not have a right to bring such claims could only be for Parliament, or perhaps the Supreme Court.
Nonetheless, Eady J struck out the claim on the basis that the criticisms were really about individuals, any damage to the university was purely incidental, and the litigation was “not worth the candle” since any damage to the university would not be effectively vindicated so long as the allegations against the individuals remained in the air. The judge said it was conceivable that an action by those individuals referred to (who were not claimants) could be supported by university funds but that was an internal matter.
The High Court has found in R (Kebede) v Newcastle City Council that local authorities have a duty (and not a discretion) to make a grant in relation to educational expenses and that this could include a grant for tuition fees.
The two claimant brothers were former relevant children for the purposes of sections 23B and 23C of the Children Act 1989 i.e. they were over eighteen and (a) had been looked after by the local authority up until their 18th birthday or (b) they had been looked after by the local authority for a prescribed period when they were 16 and/or 17. They wanted to go to university, but were ineligible for student loans because they were not British citizens (although they had discretionary leave to remain in the UK). They asked the local authority to assist under section 23C of the Children Act 1989, which included provision that the local authority had a duty to give them assistance by making a grant to enable them to meet expenses connected to their education, to the extent that their educational needs required it.
The local authority refused to assist the brothers, arguing that it had a discretion to assist but that, in any event, it only had a power to assist with expenses connected with education and this did not include a student loan. The Court rejected both of these arguments.
Mr Timothy Straker QC held that there was a duty on the local authority to make a grant to the extent that a former relevant child’s educational needs required it. Further, that grant could include tuition fees; a principal expense associated with education was the cost of tuition. The judge also rejected an argument that it was relevant that the local authority had limited resources. Having allowed the claim, he refused to make a mandatory order requiring the local authority to make a grant to the brothers. Instead, the decision was quashed and a fresh decision is to be made in light of the judgment, with the local authority deciding whether or not the brothers’ educational needs require the grant.
The judgment is not available as yet.
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.”
The Dept for Business, Innovation and Skills published its Universities White Paper on 28th June 2011. The consultation period is now open. BIS explains:-
“We are also running a series of more detailed consultations on early repayment, and the new regulatory framework, as reform in these areas could lead to changes to primary legislation. HEFCE are consulting on the allocation of teaching grant and implementing new student number controls for 2012/13. This consultation will soon be available on their website.”
The White Paper consultation closes on 20th September 2011, as does the Early Repayment consultation. The HEFCE consultation ends on 22nd September and the Regulatory Framework consultation closes at some point in October.
The White Paper can be found at http://c561635.r35.cf2.rackcdn.com/11-944-WP-students-at-heart.pdf
Peter Oldham QC