The Independent Adjudicator Adjudicates Independently

December 22nd, 2011

The Court of Appeal has dismissed a challenge the independence and impartiality of the Independent Adjudicator in R (Sandhar) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1614.

The claimant had failed two elements of his final examinations of his final year of a medical degree, resat them on compassionate grounds and failed again. He was excluded from his degree course as a result. The claimant complained to the OIA, but in the course of discussions over the nature of the hearing sought the OIA declined to agree to every procedural route he sought to invoke. The claimant judicially reviewed the OIA on the basis that because it was funded by the universities, it could not avoid the appearance of bias.

The Court of Appeal rejected that contention. It found that the Adjudicator had an express duty to act independently of the OIA Directors, who themselves had a duty to uphold the independence of the Adjudicator. There was no evidence that there had ever been a breach. Applying the well-informed and fair-minded observer test, the Court concluded that the funding from universities went into a central pot, and no individual case-handler could be said to be paid by any one institution. Moreover, there was no evidence of any link between the level of contributions and the success rate of complaints. The reasonable observer would not find there to be the appearance of bias on the part of the Independent Adjudicator. The Court approved the obiter comments of Mr Ockleton (sitting as a Deputy) in R (Budd) v Office of the Independent Adjudicator [2010] EWHC 1056 (Admin) at [98]-[104] and the point can probably now be considered settled.

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