The issue before the Court
There have been long established principles of judicial review (JR) – where the court reviews the lawfulness of a decision or action made by a public body – which state that all avenues of redress must be exhausted before JR proceedings can be issued, proceedings must be brought within 3 months of the decision complained of, and that time cannot be extended by agreement.
As such, for the last 10 years – since the decision in Sibourema  EWCA Civ 1365 – the broadly accepted view was that students had to complain to the Office of the Independent Adjudicator (OIA) (an independent body set up by the Government to review student complaints at no cost), in order to challenge a decision by a higher education institution (HEI). If dissatisfied with the OIA decision, the student could make an application for JR.
However, in a recent case, the High Court listed a hearing on its own volition and decided that, contrary to the established principles, JR proceedings can be brought against HEIs before all avenues of redress have been exhausted and that the strict time limits can, effectively, be extended by agreement.
The Judge decided that students can begin JR proceedings against a HEI before going through (or deciding not to use at all) the OIA and that, in effect, HEIs must agree to extend the time for a student to bring a JR claim, in order for them to go through the ‘final’ avenue of redress of complaining to the OIA. The Court could however, still require the parties to engage with the OIA after the JR against the HEI had been issued.
Giving students a second bite of the cherry
The Court’s decision means students can now challenge a HEI decision via a complaint to the OIA, and JR the HEI’s decision after the OIA has considered the complaint.
This could diminish the effectiveness of OIA findings as it means a student could elect to JR a HEI if the OIA decision on a complaint is not in their favour, or does not go as far as they’d like, meaning the OIA is no longer the last resort before issuing Court proceedings.
A likely secondary effect of the Court’s decision will be a reduction in the filtering process that the OIA carried out to weed out unmeritorious complaints. Students will now be able to launch JR proceedings against HEIs even if the OIA has found the complaint to be unjustified.
On the other hand, where the OIA finds in favour of a student, any issued (and stayed) JR claim against the HEI could be made redundant, meaning that both the student and the HEI will have wasted time and money unnecessarily dealing with JR pre-action steps and post-issue actions that were never necessary.
This could result in a significant increase in the number of JRs against HEIs and their legal departments can expect to receive – and have to respond to – more Civil Procedure Rules pre-action letters of claim, as well as requests not to take points on limitation.
For now though, an application has been made for permission to appeal the judgment and as such, we await the Court of Appeal’s decision.
This article was written by Peter Barr. If you are an in-house counsel for a HEI or further education institution and would like to discuss the contents of this article, or a JR claim you are involved with, you can contact:
Peter Barr, associate, Dispute Resolution
T: 0113 218 2497
Andrew Johnson, partner, Dispute Resolution
T: 0 113 204 1160