Spinning plates while walking a tightrope: preserving judicial review rights for cases before the OIA

Posted: 13/03/2017

New and pragmatic guidance has been issued by the courts to ease the bureaucracy surrounding student complaints.

The procedural tension arises when a student considers two routes of redress – one via the courts, using judicial review (JR) and one via the Office of the Independent Adjudicator (OIA):

• JR can be used only when (a) all other remedies have been exhausted, but (b) permission for JR must be sought within three months of the decision that is being challenged (eg rejection of a student's appeal against expulsion). Applying for JR is potentially expensive and the student may face costs risks.
• On the other hand, the OIA cannot consider a complaint if it is being considered elsewhere. Students have 12 months to trigger this process (longer than the JR limit).

Clearly it would be prudent to exhaust the OIA process first, but that would risk the student losing their right to apply for JR. This conundrum has led to students commencing both processes, and then attempting to 'stay' the JR proceedings to allow the OIA to consider the complaint first. This strategy is expensive, bureaucratic and ties up the court’s resources unnecessarily. Not unreasonably, universities often attempt to strike out the JR claims, wishing only to fight one battle at a time.

In R (Zahid) v University of Manchester [2017], the High Court has laid out new guidelines for managing this issue, addressing the conflicting time limits. These guidelines have the force of court rules, and will therefore have costs repercussions if not followed – meaning there are no tactical advantages to avoiding them. All parties should implement the following process with immediate effect:

• Students should pursue their claim through the OIA first. However, to preserve their right later to seek judicial review, they should raise their complaint within three months and not rely on the 12 month maximum time limit;
• When the complaint to the OIA is made, the student should also notify the HEI in respect of which the complaint is being made;
• The OIA process should then proceed;
• If, when it concludes, the student is unhappy with the OIA’s decision, they should commence JR proceedings against the HEI within one month;
• In these circumstances, the HEI should not argue that the student's application for JR is out of time.

These sensible and pragmatic guidelines should make the management of student claims more straightforward for both parties.

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