Student misconduct allegations and the right to a fair hearing
If a student is unhappy with the outcome of the university disciplinary process, the next step is to request an internal appeal of the decision in their case.
An appeals process is generally provided for in the rules of the higher education provider, and fleshed out in detailed appeals procedures which ought to be provided as part of the provider’s disciplinary regulations.
You will need to read the policy of your institution carefully to see what rules they provide for, but below we have identified common aspects that are likely to apply to you if you wish to appeal:
It is essential to act immediately. Most appeals must be requested in writing, often on a specific form, within 10 working days of the student being notified of the disciplinary decision. The deadline may be rather longer, but could be as short as 5 working days.
An appeal will only be permitted to proceed if it is made on grounds specified in the appeals procedures. Dissatisfaction with the outcome of the disciplinary process is unlikely to qualify. In general, the permitted grounds will fall into the following categories:
The precise thresholds for some of these grounds may differ between higher education providers. For example, some appeals procedures simply require “new” evidence to be available, whereas others require that new evidence be “material”, “significant” or even of a nature that “casts substantial doubt upon the correctness” of the disciplinary decision.
Appeals are typically decided by a dedicated panel or committee composed of people who are independent from the earlier disciplinary process. Some appeals take the form of a paper review, whereas many involve a hearing (either automatically or in exceptional cases).
Universities often specify that legal representation is not permitted at appeal hearings, or that any legal representative must be approved in advance at the panel’s discretion. Students may be allowed to be accompanied for support by a university staff member, fellow student or friend; and may sometimes be assisted by a recognised student union adviser even if not by a lawyer. The panel will generally have scope to regulate its own procedures to ensure fairness in individual cases; in cases that are unusually complex, if the student has a disability or if the outcome has the ability to affect their ability to practice in their chosen profession (medicine, law etc) it is worth using all available avenues to persuade the appeal panel to allow legal representation.
The panel usually has the power to make one of three decisions: confirming, quashing or varying the original decision. The panel can substitute its own findings and its own penalty. If a student is not exonerated therefore, there is some risk of a heavier penalty being imposed rather than the lighter one sought. The appeal decision will be notified to the student by way of a Completion of Procedures letter and there is seldom scope to dispute this within the higher education provider.
All is not lost for a student who is unsuccessful in their internal appeal. They still have two routes to challenge the outcome.
The first route to challenge is to make a complaint to the Office of the Independent Adjudicator for Higher Education (OIA). This must be done within a year of the date of the Completion of Procedures letter.
The OIA is an independent body which operates a Scheme for determining complaints. It can only review complaints about higher education providers (e.g. Universities) which are members of its Scheme (although most are) and there are some matters (for instance, decisions involving academic judgement) which the OIA is not permitted to consider. Nevertheless, the OIA’s remit is otherwise fairly broad, extending to “anything [a student’s] higher education provider has done or failed to do”. This would include, for instance, reviewing decisions to withdraw a student from a course, or allegations of discrimination.
It is essential to set out the basis of a complaint to the OIA clearly, and to focus on the issues that matter. Too many complaints are not upheld because they are too wide-ranging or unfocussed. It is also crucial to bear in mind that, under its Scheme Rules, the OIA will generally only consider “whether or not the higher education provider properly applied its regulations and followed its procedures, and whether or not [its] decision was reasonable”. The OIA will not uphold a complaint just because it might have acted differently itself.
The main advantages for a student of complaining to the OIA are that it is less costly and less formal than court proceedings. However, complaints can take some time to determine. Another advantage is that, if it upholds a complaint, the OIA may recommend remedies which a court could not give (such as an apology). Recommendations are not strictly binding, but in practice are complied with, not least because compliance with them is monitored by the OIA.
Another means of challenging an appeal decision is by making an application for judicial review. Such applications must be made promptly and in any event within three months of the date of the decision.
This is a formal claim made to the High Court alleging that the higher education provider has acted unlawfully in taking the action challenged. The main grounds for judicial review are that the provider has acted irrationally (for instance by taking a view of the evidence which was not reasonable) or followed an unfair procedure (for instance if it did not allow the student a proper opportunity to be heard).
Since judicial review is a court process, a student applying for it runs the risk of having to pay the higher education provider’s legal costs if they lose. It should also be noted that students proceeding directly to judicial review before making a complaint to the OIA may face the argument that they have an alternative remedy in the form of the OIA which should be completed first: see St George’s, University of London v Rafique-Aldawery  EWCA Civ 2520  2 All ER 703. However, if that argument can be overcome, judicial review can be a powerful tool, especially when there is a need for a particularly prompt resolution of the dispute. Judicial reviews can be expedited in appropriate cases.
If you receive an unfavourable outcome from a university disciplinary process, you need to act quickly. Begin by reading the policy of your institution to find out the rules for an internal appeal. Put forward the best case you can. If the appeal fails, you may still have the chance to challenge the outcome if you can identify aspects of the decision or procedure that seem unfair or that did not allow you to put your case.
Sophie Kemp is an experienced public lawyer, advising on major public inquiries, judicial review, and modern slavery and human rights. Sophie acts for individuals, charities, companies and regulatory bodies in judicial review litigation.
She has considerable investigative and public inquiry experience representing individuals, institutions, charities, public figures and senior professionals in major public inquiries, inquests, IOPC investigations, and before Select Committees.
Tom Cross is a Barriser at 11KBW. His recent instructions concern matters as varied as the Article 50 / Gina Miller litigation, the “Black Cab Rapist” judicial review, the school sex segregation case, representing a Strictly Come Dancing Professional in an employment dispute, and acting in claims concerning abortion rights, the crime of female genital mutilation, and the recovery of silver from a shipwreck which was sunk during World War Two in the Indian Ocean.
He acts both for claimants and defendants. His private and public sector clients range from major companies to private individuals, governments, and regulatory bodies. He is on the Attorney-General’s Panel of Counsel to the Crown, the Welsh Government’s Panel of Counsel, and is Panel Counsel to the Equality and Human Rights Commission.
Bianca Patulea is a Paralegal within the Public Law team. Bianca worked at the International Bar Association’s Human Rights Institute where she focussed on issues relating to human rights, judicial independence and the rule of law.
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