Greater clarity given on students’ rights to judicial review

The legal relationship between students and universities is complex.

Students are – to some extent – consumers, with consumer rights that can be enforced in courts. They also have access to a form of ombudsman scheme, the Office of the Independent Adjudicator, which was set up to address some of the deficiencies in the historic system of University Visitors. And because universities are to some extent public bodies, students may also be able to go to the High Court to seek a judicial review (JR) where they believe that a university is acting unlawfully or abusing its power.

This can leave students with a dilemma. Should they go to court, or use the OIA? Courts are often slow, expensive and complex. On the face of it the specialist and less rule-bound processes of the OIA are the obvious route. But the problem for the student is that if they take the OIA route and get an outcome which is unsatisfactory, they may then find themselves out of time for taking the case to a judicial review.

An important recent case has provided students and universities with more clarity on the interplay between the role of the courts and the role of the OIA. The judgement should help both students and universities to manage the situation more effectively.

The case – Zahid v Manchester University – looked specifically at judicial review as a potential remedy. JR developed as a process for individuals to challenge the wrongful exercise of power by public bodies. Universities fall within its ambit. Inevitably the grounds for a JR challenge are limited: failure to comply with legal requirements, or fair processes, or decisions that are so unreasonable that no reasonable body could have arrived at them (so called “Wednesbury unreasonableness”). But these are often grounds that students, particularly in cases with significant implications for their futures, wish to argue apply to how the university has dealt with their case. It is no accident that all three of the linked cases in Zahid involved students studying medicine, an area where students have made a particularly significant investment in their future career.

Unlike the OIA, JR comes at a cost. There is a £154 fee just for asking for permission to bring the case. A student can then represent him or herself in court, but in practice the technical nature of judicial review means that often legal support is needed. And since the parties in the case are subject to the usual rule that the losing party has to pay the costs of the other side, a student faces a risk of costs in any event. So JR is not an easy option, but students may see it as having an authority, rigour and independence from universities that the OIA does not.

The other point for noting is that a JR must normally be brought “promptly”, or at the longest within three months of the act. There is a discretion to extend the time limit, but this is not done lightly. What this means in practice is that if a student waits until the OIA has decided the matter, they will almost certainly be out of time for bringing a JR. Can the student therefore start a complaint with the OIA, and start a JR at the same time, but then apply to pause (or “stay”) the JR pending the outcome of the OIA?

In Zahid the court addressed three questions of principle:

1. How can a student who is prepared to go to the OIA still protect their right to bring a judicial review case later?
2. What should happen if a student launches both an OIA action and a judicial review but applies for the latter to be stayed pending the outcome of the OIA?
3. Can a student simply bring a judicial review without going to the OIA, bearing in mind the public interest in seeing alternative ways of managing disputes without involving the courts?

The court laid down the following principles:

1. The OIA should be the normal route for such disputes; there is a public interest in encouraging alternative dispute resolution.
2. If a student thinks they may want to bring a JR once they have been to the OIA, they should notify the university at the start and ask for agreement that a JR can be brought out of time once the OIA is finished. The court will then normally extend the time limit for the JR until the OIA has issued a determination. But the student should bring the OIA case promptly, and should then launch any JR promptly once the OIA matter is concluded.
3. If a JR case is brought at the same time as the OIA matter, the universities should normally agree to a stay, pending the outcome of the OIA.
4. In any JR case that is brought after the OIA has heard the matter, the court will:

“give some deference to any findings made and conclusions drawn by the OIA. The degree of deference given will, of course, depend upon the circumstances of the particular case. Where findings and conclusions have been drawn by the OIA on the same evidence as is available to the court, then considerable deference may be appropriate; but less so where the evidence before the court is different from that lodged with the OIA, or has been more rigorously tested through the court process.”

The Zahid case represents a clear endorsement of the OIA as the venue of first resort for students dissatisfied with university outcomes. It emphasises that universities may have a duty to be supportive where students want to ensure that they are not jeopardising their future rights to bring a JR, whether by agreeing that a later application can be brought post-OIA, or by agreeing to a stay of any existing JR proceedings. And it emphasises that the decisions of the OIA will be given weight – recognising the expertise of the OIA – but that such weight will be sensitive to the individual circumstances of the case.

It is worth noting that the decision did not address the rights of students under consumer law, something that is increasingly coming to the forefront. Students may argue that they didn’t receive the service that they were contractually entitled to, or didn’t receive a service of the quality they were entitled to expect. In such cases students may be looking to bring consumer actions via the county court, and in those cases there is a six year period from the alleged breach of contract during which the case can be brought.

However the Zahid case does provide a valuable clarification of the interplay between the OIA and the Administrative Court, and should be of assistance both to unhappy students and to the universities that might otherwise face unnecessary duplication of claims.