Harcus Sinclair v Your Lawyers - Another nail in the coffin of solicitors’ undertakings?
A student who wishes to bring a complaint against their university or college, in relation to a finding regarding their fitness to practise (FTP), or any other matter, has two main public law options available to them once the internal complaints procedure of their higher education institution (HEI) has been exhausted.
One option is to refer the complaint to the Office of the Independent Adjudicator for Higher Education (“the OIA”) which is an independent body that was set up in 2005 to review student complaints against member HEIs in England in Wales. The OIA reviews complaints and makes a determination as to whether the complaint is justified, partly justified or not justified.
Complaints must be referred to the OIA within 12 months of the date of the ‘Completion of Procedure letter’; this is normally provided by the HEI once the internal complaints procedure has been completed. It is important to note that the OIA is unable to consider any complaints that are simultaneously being considered by a court or tribunal where the proceedings are live.
The other option open to a student making a complaint against a HEI is judicial review (JR). JR is where the court reviews the lawfulness of a decision or action made by a public body. As such, JR is a challenge to the way in which a decision has been made. The pre-action protocol for JR states that it may be used where there is no right of appeal or where all avenues of appeal have been exhausted. In addition, under the Civil Procedure Rules (CPR) 54.5, in most cases, an application for JR must be made no later than three months after the grounds to make the claim arose.
When considering the most appropriate of the aforementioned options, students are therefore conflicted in terms of the best way to proceed. If a student makes a referral to the OIA and the outcome is unfavourable, they will most probably be statute barred from subsequently commencing JR proceedings, as the OIA procedure is likely to take more than three months to be resolved. However, a student is unable to commence JR proceedings as a first port of call due to the guidance laid down in the pre-action protocol in relation to exhausting other avenues. This predicament poses the question: how should a student proceed if they are unhappy with the outcome of the HEI’s internal complaints procedure?
In the recent linked cases of R (Zahid) v University of Manchester, R (Rafique-Aldawery) v St George’s, University of London, and R (Sivasubramaniyam) v University of Leicester  EWHC 188 (Admin) each of the students had been expelled from medical school and were unhappy with the outcome of the respective university’s internal complaints procedure., Each student referred their complaint to the OIA. However, in order to protect their position and ensure that further avenues were open to them should the OIA outcome be unfavourable, each student concurrently commenced a claim for JR.
As the OIA would not consider the claims whilst JR proceedings were live, each student asked the Administrative Court to stay the JR claims until their respective OIA processes had concluded. The cases were decided jointly by Mr Justice Hickinbottom.
In considering the students’ position, Mr Justice Hickinbottom acknowledged that:
For students, the completion of their education is important. They pay significant sums for their higher education…Medical and PhD students, for example, can expect to study for at least five years. Furthermore, for students who fail to complete a course, that can result in a loss of job opportunities and thus life-time income, particularly for those pursuing professional or vocational courses.
Mr Justice Hickinbottom went on to add that if a student is expelled from medical school their name is added to the "excluded student database" which means that other HEIs are aware of the expulsion. In considering this Mr Justice Hickinbottom observed that
Expulsion on the basis that a student is not fit to practise medicine may therefore result in a permanent exclusion from the opportunity of entering the medical profession, at least in the UK. Thus, a decision by an HEI in relation to a medical student may have a particularly profound impact on that student's future; and may be more likely to draw a challenge, by way of complaint or legal proceedings.
After considering the serious ramifications of a medical student being expelled from a HEI on the basis of not being fit to practise, Mr Justice Hickinbottom went on to consider the facts of the matter i.e. whether it was appropriate to stay JR proceedings pending the outcome of the OIA process. In doing so Mr Justice Hickinbottom commented:
Given the principles in relation to alternative remedies and JR being a remedy of last resort, I do not see the need for the routine issue of protective proceedings in cases in which an OIA reference has been made, so long as the student issues any JR claim that he or she wishes to pursue within a reasonable period from the OIA’s determination of the complaint. In the ordinary course, the student should be able to issue proceedings within one month of that determination; and it seems to me that the court would need compelling reasons to be persuaded that longer was reasonably required.
I understand that the parties (i.e. the student and the relevant HEI) need some degree of certainty. However, if they agree that any court proceedings can await the outcome of the OIA reference – as they should, and will, in the vast majority of cases – absent extraordinary circumstances, it seems to me that they can have confidence that the court will be driven to exercise its discretion to allow an extension of time to file any proceedings if that reference is not successful in resolving the complaint.
Although under the OIA Scheme Rules, the student has twelve months from the date of the Completion of (Internal) Procedures Letter to make a reference to the OIA … if he or she wishes to reserve the right to pursue JR proceedings, then the decision to refer should be made sooner.
In delivering his judgment, Mr Justice Hickinbottom provided the following practical guidance in relation to all student claims against HEIs:
This useful and sensible guidance will help to simplify the bureaucratic student complaint process for students and HEIs. It has also clarified the role and expected conduct of the court in the context of OIA proceedings.
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