OIA rapped by High Court

Smita Jamdar

I finally got round to reading the decision of the Administrative Court earlier this year in R (on the application of Tiago Cardao–Pito) -v- OIAHE & Anor. It makes for very interesting reading, not only because it is the first application for judicial review of a decision of the OIA that has been successful, but also because of the candour of the judge’s comments on the failings on the part of both the OIA and the institution involved. Although a long judgment, it should be required reading for anyone who deals with student complaints and appeals and indeed for any member of academic staff who feels inclined to not to participate constructively in such processes.

From a legal perspective, the most interesting part of the decision is that the OIA had failed to give any reasons for its recommended monetary award to the student, which had risen from £250 to £6500 in two separate considerations but still fell considerably short of the losses the student had demonstrably sustained. The Court concluded that the OIA ought to explain why it arrived at the figures it did, even where what it was compensating was the loss of a chance to have an appeal heard rather than forming a view that the appeal would have been successful.  I am sure I’m not alone in having read decisions of the OIA to find myself scratching my head over why a particular figure had been picked, and it looks like this will become a thing of the past. It may however be replaced by more detailed and legalistic assessments of damages, moving the OIA scheme further away from an informal and (ahem) speedy process for resolving disputes, to something closer to a court of law.  That is not necessarily a good thing.

There was also a legal point around whether the OIA had the power to offer to review one of its own decision’s voluntarily, or whether, having made the decision it was, in what the judge described as the “elderly but expressive legal shorthand”, functus officio. With some misgivings, the judge concluded the OIA did have the power.

For me, there was however also interest (albeit rather dismayed interest) to be found in the underlying facts of the case, and in particular how totally not singular or unique they were. It read like one of those case studies that has everyone saying “you based this on us, didn’t you”?

For example we had:

  • A failure to follow published procedures;
  • Unfortunately worded e-mails from members of staff;
  • The taking into account of evidence from members of staff without giving the student the opportunity to comment on it; and
  • Attempts to dissuade the student from exercising rights to complain or appeal.

What is particularly worrying is that in this case, the student could show losses running to over £30,000. The Court’s approach to the requirement to give reasons may lead to the OIA’s recommended awards more closely resembling students’ actual losses, so increasing the financial risks where poor practice is established.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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Comments -
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    Your article is very interesting and informative. Does the case you refer to and others since relate only to challenges to OIA decisions that fall within the judicial review time limit? As your article states, once a decision was made by the OIA, prior to this case, the decision of the OIA was final and the OIA would not re-open a review. This has been the dilemma of students with complaints particularly when the window for judicial review is a few months even though the limitation period for a complaint against a HEI is six years. Also, not all students have great financial loss especially a course that is government funded although a complaint remains a complaint like any other. Once the judicial review time period has expired it seems that there is no redress available for students with or without great financial loss. There is a long way to go before fairness between a student and a HEI is established.

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