Challenging Expulsion from University
It is increasingly common for doctors and dentists to undertake postgraduate degrees as part of their ongoing professional development. For such professionals, expulsion from a University course of study could have devastating professional consequences. The same is true for undergraduates facing a negative outcome from a student ‘Fitness to Practise’ hearing. A natural question facing anyone in such circumstances is ‘what can be done about a decision to expel’?
The Office of the Independent Adjudicator [OIA] was established under the Higher Education Act 2004 to deal with complaints from students about third level institutions. It is independent of the Universities and is intended to be cost efficient. The OIA is limited to scrutiny of a University’s compliance with their own prescribed procedures. It will not review questions of academic judgment. That limitation mirrors the wide discretion which the Courts have given educational institutions to deal with ‘pastoral’ and academic matters. The OIA is not obliged to undertake a rehearing of the factual evidence nor is elaborate reasoning required. The High Court has held that it is for the OIA in each case to decide the nature and extent of its investigation. The OIA’s decisions are not binding although that has been rejected as a basis for applying for Judicial Review in advance of exhausting the OIA procedure.
The extent of these constraints on the OIA mean that it is not an unduly attractive option for those who believe themselves victims of substantive as opposed to procedural failures. Nonetheless, it is a route which must be explored before judicial review.
That point was made abundantly clear by Mitting J in R. Peng Hu Shi v King’s College London  EWHC 857 (Admin) when, dismissing an application for judicial review, he observed:
"…[The Applicant] did not, as she should have done, pursue her complaint to the Office of the Independent Adjudicator and it is not appropriate, and was never appropriate, to bring this claim for judicial review.”
In the recent case of R (McKoy) v Oxford Brookes University  EWHC 667 , a midwifery student successfully challenged the University’s interpretation of its internal regulations on the maximum number of exam resits permitted. She had initially brought the matter to the OIA but was dissatisfied with the outcome. She had been granted leave to apply for judicial review on the grounds that, although out of time, her delay was, at least in part, the result of following the statutory OIA procedure.
In R. (Siborurema) v Office of Independent Adjudicator  EWCA Civ 1365 , the Court of Appeal held that decisions of the OIA are themselves amenable to judicial review, although the instances in which leave will be granted are limited.
Thus an individual who is confronted with expulsion from a University is obliged to pursue redress through the OIA in the first instance. If dissatisfied with that decision they can seek judicial review of the OIA’s decision. That is unlikely to be an attractive option given that the court will have to be satisfied that the OIA’s decision was unreasonable. A more attractive approach would be to seek judicial review of the original decision of the University. However, if left until after the OIA decision then, strictly speaking, such an application would be out of time although it appears from the McKoy decision that the court is prepared to countenance excusing that delay where it arises from pursuit of the statutory remedy provided via the OIA. It remains to be seen just how generously the courts will apply that approach. It may be better to launch an OIA appeal and protective Judicial Review proceedings, with the latter adjourned until after the OIA decision.
Stewart Duffy is a Doctor of Medicine, AttorneyatLaw at the New York Bar and Solicitor. He has worked in defence of doctors and dentists before their professional regulators and in the criminal courts.
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