Court of Appeal

Published January 10, 2008

Regina (Siborurema) v Office of the Independent Adjudicator for Higher Education

Before Lord Justice Pill, Lord Justice Moore Bicks and Lord Justice Richards

Judgment December 20, 2007

The Office of the Independent Adjudicator for Higher Education was entitled to take into account the regulations and procedures of a higher education institution against which a student had made a complaint and was not obliged to conduct an investigation into the underlying facts.

The Court of Appeal so stated dismissing an appeal against the refusal of Mr Justice Mitting on November 24, 2006 to grant the claimant, Gaston Siborurema, permission to apply for judicial review of a decision of the Office of the Independent Adjudicator, a statutory body, made by letter dated December 7, 2005.

The adjudicator found that the appellant’s complaint against London South Bank University was unjustified. The claimant was a student of the university and had failed his examinations a few times. He complained that the university had failed to take into account his personal problems.

Mr Gregory Jones for the claimant; Mr Oliver Hyams for the adjudicator; Mr John Hamilton for the university.

LORD JUSTICE PILL said that the office of the adjudicator was amenable to judicial review: the procedure for dealing with student complaints about the decisions of higher education institutions was set up by the Higher Education Act 2004.

Parliament had conferred on the office of the adjudicator a broad discretion. It was able, in deciding whether particular complaints were justified, to exercise a discretion in determining how to approach the complaint.

In assessing whether a complaint had been approached in a lawful manner, the court would have regard to the expertise of the independent adjudicator, who in turn should have regard to the expertise of the higher education institutions.

The office was entitled in most cases, if it saw fit, to take the institution’s regulations and procedures as a starting point and to consider, when assessing a complaint, whether they had been complied with. Initially, the regulations could be assumed to be a reliable benchmark.

The appellant had to establish that the office had erred in law in holding that the complaint was not justified. That would involve finding that it was legally obliged to find the university’s conduct such that it ought to interfere. The adjudicator’s office was not obliged to conduct a full investigation into the underlying facts. The absence of the opportunity to refer the office to the appellant’s financial circumstances did not require the decision to be quashed.

Lord Justice Moore Bick gave concurring judgment.

LORD JUSTICE RICHARDS, agreeing, said that a complainant dissatisfied with the office’s decision would often have the option of pursuing a civil claim against the university, which might well be an appropriate alternative remedy justifying in itself the refusal of permission to apply for judicial review.

Solicitors: AP Law; E. J. Winter & Son, Reading; Lupton Fawcett, Leeds.

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