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Give us a truly fair and impartial student complaints system!
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Reply 40
7
Original post
by deechPoint 1: The OIA only have to review information up to the point at which they consider they have done enough to arrive at a decision, and then they simply make that decision. It follows they don't have to review everything, and should they be biased they can legally ignore any evidence they like and you will be almost guaranteed to lose if you take them to court about it.
I agree fully with what you say in Point 1. The Higher Education Act 2004 is the piece of dubious legislation that empowers the OIA to make corrupt, biased decisions that are contrary to their claims to be an impartial, independent, fair system for students.
Original post
by deechPoint 2: They don't have to reinvestigate the complaint. Unless you can provide evidence that the university didn't make the determination of academic judgement in a fair way, then that determination stands for the OIA. They could be biased, they could know full well that if they reinvestigated it is as clear as day that you are right, but again you'd be guaranteed to lose if you take them to court about it.
Your argument at point two rests on the application of "academic judgement", which is terminology used to describe the situation when only the judgement of a suitably qualified academic will suffice. This is where the student is cheated every time. "Academic Judgement" is not defined sufficiently well to be used as a deciding factor in any judicial, semi-judicial or quasi-judicial process. Nevertheless, at a point where "academic judgement" has, in any case, been shown clearly and unambiguously to be erroneous, (as it was in my case), then that should negate the consideration of the application of any "academic judgement." for all related aspects of the case, to remove any notion of bias or prejudice.
Original post
by deechPoint 3: The OIA don't have to make legal findings, and quite rightly so. Legislation can only be applied properly by the courts. The OIA might in their discretion use something like the Equality Act to guide them on whether the university acted reasonably. However, they can't use that act to determine whether or not you are the victim of discrimination. If you have a legal right to damages in discrimination law / contract law / negligence law, etc. then the OIA is not the place to go looking for such a remedy. It's like going to alcoholics anonymous and expecting them to give you a liver transplant.
The OIA don't have to make legal findings, but they use legalese in a deliberate attempt to confuse the student. During my own case I questioned the terminology used, specifically the meaning that the OIA gave to the term "Reasonable Suspicion", which the university claimed they had when they levied false allegations of cheating against me with absolutely no evidence to back those allegations up. (They had no evidence, simply because I was totally innocent and was able to fully and unambiguously prove that to be the case.)
The university themselves told me to go to the OIA, and although I doubted the wisdom of doing so, I found that no court of law, and no affordable solicitor will help with instigating an action in the courts. I first asked my MP for help, he was terminally useless. I was left with no other option, and it is just not true that there are other affordable alternatives.
Original post
by deechAt the end of the day the OIA is a pretty useless, biased, corrupt, informal but free service. I don't see any point at all complaining about them, taking them to court, petitioning to get them replaced. Look at it this way, if you get into a fight with your neighbour, and I step in to help resolve it.... you have no right at all to expect a god damned thing from me. My attempt at resolution could be to scratch head and walk away and that's fine. The way the OIA provide help is entirely up to them.
I totally disagree with this point! The OIA were specifically brought into existence by statute, and all British Law should have, and should intend to have, a benefit for those who are said to be protected by it. Therefore, if a piece of legislation aims to provide a complaints system for students to turn to, then that complaints system should operate to remedy student complaints. It should not operate to obfuscate and frustrate those complaints by failing to address basic common issues that are at the forefront of the majority of the complaints that it oversees. In fact it should be forced to remedy issues surrounding academic judgement as a matter of course. Many of the cases brought to the OIA, that it claims to be an issue of academic judgement, aren't in fact that at all. In my own case, I was falsely accused, but it was deemed to be okay to accuse, because it was "academic judgement". However, a quick scan of my evidence would show that the lecturer who made that accusation not only had no basis for making that accusation, but had spent over a month prior to making the allegation trying to drum up support for doing so (so was clearly not making an academic judgement at all), and had failed to mark the work in the interim, made other false allegations, i.e. first, falsely, that I hadn't submitted any work, then secondly, falsely that I had only submitted one copy, and thirdly, falsely claimed that there was no working outcome to the software implementation part of the submission. Having made such a catalogue of false claims, how could any reasonable system then claim that this was "academic judgement" rather than discriminatory behaviour?
Original post
by deechIf the OIA chose to be unfit for purpose, so what? Then you take legal action against the university and let the court's do their job. If you represent yourself, and you know you can't lose, then it's not expensive.
I disagree with this point because there is no such case where any person "knows" that they cannot lose. I also find it to be a rather ridiculous, and a bit scornful of the intelligence of people who are forced into a position similar to the one that I experienced, to say "so what". Almost all students who find themselves involuntarily catapulted into the complaints system are naive and uninformed about the system at the point when that happens, and they do not have the luxury of being able to take time to research it before they make their complaint. The information that universities give to their students is very, very clear: i.e. You have reached the end of the internal complaints process, and this is the "completion of procedures" document, which we are obliged to give to you. If you want to pursue this further, you will have to go to the OIA. This stance is backed up robustly by the High Court, as we have seen in several reported cases, and almost no reported cases of successfully taking it to a court INSTEAD of going to the OIA.
Original post
by deechAlso despite the misleading way the THE reported previous high court cases, you can certainly take a university to court without bothering with the OIA. You can take a university to court at the same time as using the OIA if you stay the legal proceedings. You can also take a university to court after you have finished with the OIA process. It depends on your circumstances. If you don't match your circumstances with the existing case law, and make the appropriate choice.... that is when your case gets thrown out.
I totally disagree with this point. You cannot successfully take a university to court instead of going to the OIA, and I challenge you to show ANY reported case that has succeeded that did not go to the OIA. (All of the cases that you speak of that are listed on the OIA website, were not cases against universities, but cases requiring Judicial Review of the OIA, following there failure to deliver. Since my own case, and following the case of Cardao Pito, there have been some rumblings of "getting the act together" over at Kings Reach, because people started to recognise that they were not doing their job right. As for not matching your circumstances to the existing case law, I would be interested in you actually posting some examples of that case law, that shows that there are successes that you can match your case with. I'm guessing they are few and far between and have specialist circumstances that would only benefit a very tiny minority of students. That doesn't mean that they don't have good cases, it just means that the creation of case law is terminally slow, and with such a corrupt system has benefited the university in possibly a minimum of 99.8% of cases.
Reply 41
7
Original post
by deechAt the time you made your complaint, all you had was The Higher Education Act to go on, which is why you got duped by the OIA. That first generation of complainants must have been screwed badly. Some of them found out the hard way in the high court about how it works. .
Original post
by deechIf you look at the judicial review cases on the OIA website, read them all properly from front to back, it really does help explain the situation in more detail. The next generation of complainants are in a far better position now.
I disagree wholeheartedly with this statement. Being informed as to the existence of corruption is does not put someone in a "far better position", it merely gives them knowledge of the "far worse than expected" position that they are actually in.
Original post
by deechI'd even say that the OIA being useless helps in a perverse sort of way. The courts have had to bend over backwards in how to interpret the OIA rules in order to continually get them off the hook. The result is that today, the collective judgements and reasoning of the courts amounts to - yeah the OIA are a useless service that will not give you any remedy of note.... which is perfection!!! That makes it so easy to now go to court and get a proper remedy out of the university.
I disagree with this, and challenge you to come up with at least one situation in which this has been applied and has succeeded. That is, show the online court transcript of a single case which was not taken to the OIA but instead was taken to the courts and fully settled to the satisfaction of the student involved.
Original post
by deechWhat you are proposing, to try to make the OIA fit for purpose, will send complainants back to the early dark days. Don't for one second think the OIA will suddenly award compensation to students. All that will happen is that parliament will give them the power to do so, the OIA will not award a penny, and then you have not a leg to stand in court anymore. The courts won't have any reason to go against the decision of the OIA to not award compensation.
What I am proposing has been detailed to Parliament. It specifically requires them to repeal the law that gave the OIA its existence, (i.e GET RID OF THEM NOT REPAIR THEM!!) and treat the matters that students have the same as any other group of people, i.e. if they are acted against unlawfully, then provide a fully evidence-based system which will provide a remedy in law. So, your last point is totally invalid as a criticism of my actions. Unfortunately, I am banned from detailing those actions by this site, so the blame for your misconception lies with the Student Room, not with yourself.
Original post
by deechIt's far better to keep the corrupt OIA as a toothless way of passing the time whilst you slowly and methodically prepare your legal case. Be careful what you wish for.
There is no valid reason for keeping ANY corrupt organisation. I'm shaking my head in despair at the very idea that anyone would suggest it. I'm not wishing, I am taking action. EVERY student deserves the right to a honest, fair, impartial, unbiased, non-prejudicial, evidence-based complaints system, not just those who, as you imply, can wade through the convoluted and often misleading myriad of documentation, and make sense of it in the short time span open to them, which was at the time of my OIA submission just three months.
Reply 42
7
deech, I suggest you visit me on my Twitter account. You'll know when you find me, I'l be wearing either a wetsuit and diving gear, or a climbing harness! 
Reply 43
7
Original post
by River85The reason why I haven't discussed the OIAHE is because I have absolutely no experience, and very little knowledge, of it.
I had come here hoping to remedy that! I still hope that you will!
Reply 44
Sorry I'm too knackered to quote everything you asked Julie. On the legal stuff:
Affordable alternatives?
Court fees are not crazy, in the order of a few hundred quid whether you take the university to the High Court for judicial review or if you sue them in the County Courts.
I'd forget solicitors and barristers. There are very few with sufficient knowledge of higher education law, and the hours it would take to prepare your case would cost more than anything you'd hope to recover anyway.
Taking it to court by skipping the OIA?
Clark v University of Lincolnshire which allows you to sue in the County Courts for breach of contract, discrimination or whatever the case may be. There is no obligation to use the OIA first.
Or you can go for judicial review. In this case it has to be a last resort, and if there is an alternative remedy (OIA) you will be refused permission. However, an alternative remedy has to be more effective than the remedy possible by judicial review (there's a few old cases to support that). The two recent students who got thrown out of the high court (Shi was one, the other was Carnell I think), were because they rather stupidly argued that the OIA was ineffective because they took too long, and because the university might ignore their decision. Those arguments were rightly rejected and they got sent back to the OIA. However, if the court agreed that the OIA were not as effective as Judicial Review, then you can skip them out.
So look at all the judicial review cases against the OIA. You can take your pick from any of those to show how/why the OIA are ineffective in your particular case. Maxwell v OIA is probably the best one. There are no successful cases of anyone skipping the OIA that I know of....yet.
Court as well as the OIA?
Why would you risk skipping the OIA anyway? Just use them, they take 2 years great. If you issued and stayed your claim, and the university didn't concede for two years, guess what you'll get 16% of interest on the compensation if you win.
Matin v UCL and Crawford v Newcastle University both issued and stayed judicial review proceedings against the university. Or even if you don't figure out what you're doing until it is too late, you will likely be within time for a claim in contract. For Judicial Review you can apply for an extension of time saying you were obliged to complete the OIA procedures first.
So far the court has never held that the OIA decision means you can't follow up with a legal case. The most recent case Crawford, the judge said this...
I have considerable doubt, however, whether the fact that the Claimant had pursued a complaint to the OIA would bar the Claimant from relief if he had made good his argument under "issue 1" on the construction and application of the MBBS Stage 5 Handbook.
Maxwell, I accept, was a different kind of case where the individual had an entitlement to make a claim before the County Court for disability discrimination. Perhaps it went no further than recognising that the County Court retained jurisdiction after the OIA decision. So, of course, does this Court in its judicial review jurisdiction.
I find it difficult, however, to contemplate that the 'alternative' procedure of the OIA (once completed) could be considered, whatever the OIA's expertise in educational matters, as providing the only remedy on the issue of legality raised by "issue 1" in this case. The argument that judicial review is a remedy of 'last resort' which is at the heart of the 'effective alternative remedy' point may not, in itself, justify the refusal of relief when, as here, the alternative remedy has been pursued albeit unsuccessful. That has, as I have made clear in relation to "issue 2", some bearing on how discretion should or should not be exercised in granting a remedy for the unfairness in the procedure followed by the Appeal Adjudicator. But, in that its relevance lies in the substance of the individual's complaint and how it was dealt with by the OIA rather than simply by a bald reliance on the fact that another 'alternative' procedure has been followed. I recognise, however, the broad thrust of Mitting J's comments in Peng Hu Shi may point in a different direction. Having expressed that view, as it is not necessary to reach a concluded view in this case, I prefer not to.
The courts are not stupid, they don't want to place universities above the law despite what the Higher Education Act says.
Affordable alternatives?
Court fees are not crazy, in the order of a few hundred quid whether you take the university to the High Court for judicial review or if you sue them in the County Courts.
I'd forget solicitors and barristers. There are very few with sufficient knowledge of higher education law, and the hours it would take to prepare your case would cost more than anything you'd hope to recover anyway.
Taking it to court by skipping the OIA?
Clark v University of Lincolnshire which allows you to sue in the County Courts for breach of contract, discrimination or whatever the case may be. There is no obligation to use the OIA first.
Or you can go for judicial review. In this case it has to be a last resort, and if there is an alternative remedy (OIA) you will be refused permission. However, an alternative remedy has to be more effective than the remedy possible by judicial review (there's a few old cases to support that). The two recent students who got thrown out of the high court (Shi was one, the other was Carnell I think), were because they rather stupidly argued that the OIA was ineffective because they took too long, and because the university might ignore their decision. Those arguments were rightly rejected and they got sent back to the OIA. However, if the court agreed that the OIA were not as effective as Judicial Review, then you can skip them out.
So look at all the judicial review cases against the OIA. You can take your pick from any of those to show how/why the OIA are ineffective in your particular case. Maxwell v OIA is probably the best one. There are no successful cases of anyone skipping the OIA that I know of....yet.
Court as well as the OIA?
Why would you risk skipping the OIA anyway? Just use them, they take 2 years great. If you issued and stayed your claim, and the university didn't concede for two years, guess what you'll get 16% of interest on the compensation if you win.
Matin v UCL and Crawford v Newcastle University both issued and stayed judicial review proceedings against the university. Or even if you don't figure out what you're doing until it is too late, you will likely be within time for a claim in contract. For Judicial Review you can apply for an extension of time saying you were obliged to complete the OIA procedures first.
So far the court has never held that the OIA decision means you can't follow up with a legal case. The most recent case Crawford, the judge said this...
I have considerable doubt, however, whether the fact that the Claimant had pursued a complaint to the OIA would bar the Claimant from relief if he had made good his argument under "issue 1" on the construction and application of the MBBS Stage 5 Handbook.
Maxwell, I accept, was a different kind of case where the individual had an entitlement to make a claim before the County Court for disability discrimination. Perhaps it went no further than recognising that the County Court retained jurisdiction after the OIA decision. So, of course, does this Court in its judicial review jurisdiction.
I find it difficult, however, to contemplate that the 'alternative' procedure of the OIA (once completed) could be considered, whatever the OIA's expertise in educational matters, as providing the only remedy on the issue of legality raised by "issue 1" in this case. The argument that judicial review is a remedy of 'last resort' which is at the heart of the 'effective alternative remedy' point may not, in itself, justify the refusal of relief when, as here, the alternative remedy has been pursued albeit unsuccessful. That has, as I have made clear in relation to "issue 2", some bearing on how discretion should or should not be exercised in granting a remedy for the unfairness in the procedure followed by the Appeal Adjudicator. But, in that its relevance lies in the substance of the individual's complaint and how it was dealt with by the OIA rather than simply by a bald reliance on the fact that another 'alternative' procedure has been followed. I recognise, however, the broad thrust of Mitting J's comments in Peng Hu Shi may point in a different direction. Having expressed that view, as it is not necessary to reach a concluded view in this case, I prefer not to.
The courts are not stupid, they don't want to place universities above the law despite what the Higher Education Act says.
Reply 45
Original post
by MegajulesWhat I am proposing has been detailed to Parliament. It specifically requires them to repeal the law that gave the OIA its existence, (i.e GET RID OF THEM NOT REPAIR THEM!!) and treat the matters that students have the same as any other group of people, i.e. if they are acted against unlawfully, then provide a fully evidence-based system which will provide a remedy in law. So, your last point is totally invalid as a criticism of my actions. Unfortunately, I am banned from detailing those actions by this site, so the blame for your misconception lies with the Student Room, not with yourself.
There is no valid reason for keeping ANY corrupt organisation. I'm shaking my head in despair at the very idea that anyone would suggest it. I'm not wishing, I am taking action. EVERY student deserves the right to a honest, fair, impartial, unbiased, non-prejudicial, evidence-based complaints system, not just those who, as you imply, can wade through the convoluted and often misleading myriad of documentation, and make sense of it in the short time span open to them, which was at the time of my OIA submission just three months.
The evidence-based complaint system you envisage is effectively a court... and we already have a court system. I would refer you to the court of appeal judgement in Maxwell v OIA which is pasted below. The point of the OIA is they have a rought and ready quick look at the complaint, albeit over many years. However they are not a substitute for the court for the reasons which the judge gives.
If you want to do away with the OIA, and replace it with a court substitute.... it will (a) be much more expensive, and (b) corrupt.
I am not by any means saying the court isn't corrupt, but it's the best way to get justice. If you susbtute that court with OIA v2.0 it will screw us all over. Legislation saying OIA v2.0 has to consider all evidence and conduct an investigation... means sweet f all. They can do all those things and still be biased and dismiss the student complaint. Then in that situation the court will say tough luck mate, OIA v2.0 is where the buck stops.
1.
Discussion and conclusions
2.
I start from a position on which I think that most people would be in agreement: that a complaint of disability discrimination by a student against an institution that exists to provide courses in Higher Education is a serious matter. It is serious both from the point of view of the student claiming to be a victim and from the point of view of the institution as the alleged perpetrator. The outcome of the complaint and the proper procedure for achieving it are significant and sensitive for both sides.
3.
Ms Maxwell's essential complaint under all three of Mr Jones's headings is that the OIA should have made a positive statement of a finding of disability discrimination in its Final Decision on her complaint against the University. It is common ground that, under the Higher Education Act 2004, complaints of disability discrimination are eligible complaints that may be made to the OIA and reviewed by it. However, the operation of the Student Complaints Scheme by the OIA in disability discrimination cases can only be properly understood when read against the legal background of Part 4 of the 1995 Act, which was in force at the relevant time and provided for the bringing of legal proceedings against Further and Higher Education Institutions for unlawful disability discrimination. (The discrimination legislation is now contained in the Equality Act 2010). Although Part 4 did not prevent the making of an application for judicial review, or the making of a complaint under the complaints scheme, the essence of the disability discrimination legislation is that proceedings for unlawful discrimination are for breach of statutory duty and are brought as civil proceedings in the county court subject to the provisions of the legislation.
4.
That legislation contained the customary provisions about enforcement, such as time limits and remedies, and also special procedural provisions, such as the requirement for the appointment of assessors, unless the judge considers that there is no good reason for exercising that power. In addition the Civil Procedure Rules apply to the conduct of the proceedings: the machinery of pleadings, disclosure of documents, the giving of oral evidence tested by cross examination, public hearings and reporting and reasoned public judgments subject to rights of appeal to the higher courts, and the making of costs orders.
5.
As explained above, the practice and procedures for the review and resolution of a wide range of student complaints under the independent scheme operated free of charge and largely as an inquisitorial on a confidential basis by the OIA under the 2004 Act, is quite different from civil proceedings. Its informal inquisitorial methods, which are normally conducted on paper without cross examination and possibly leading to the making of recommendations in its Final Decision, mean that the outcome is not the product of a rigorous adversarial judicial process dealing with the proof of contested facts, with the application of the legislation to proven facts, with establishing legal rights and obligations and with awarding legal remedies, such as damages and declarations. The issue for the OIA in this matter was not to decide whether Ms Maxwell was in fact the victim of disability discrimination or whether the University is liable to her for such discrimination. The OIA's task was to review Ms Maxwell's complaint, which included a complaint of discrimination, to see whether the University's decision was reasonable in all the circumstances and was justified and, if so, to what extent, and what recommendations should be made to the University.
6.
In my judgment, the courts are not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues, such as whether or not there has been disability discrimination. Adjudication of that issue usually involves making decisions on contested questions of fact and law, which require the more stringent and structured procedures of civil litigation for their proper determination.
7.
Ms Maxwell had a number of options. She chose to use the OIA as the primary route for her complaint. She has secured a favourable response in the form of the recommendations in the OIA's Final Decision. If she is dissatisfied with that outcome, because there has been no positive adjudication on whether or not there has been disability discrimination against her by the University, her remedy is to resurrect the county court proceedings, which have been stayed by consent for the last 5 years. Her remedy is not in judicial review proceedings mounted on the basis that the OIA has erred in law in not making such an adjudication which it was not obliged to make. It is contrary to the whole spirit of a scheme established for the free and informal handling of students' complaints that the outcomes under it should replicate judicial determinations, which continue to be available in civil proceedings in the ordinary courts, for which the OIA is not and was never intended to be a substitute.
8.
The matter can be tested in this way. Suppose that, following the informal procedure of the scheme as it has, the OIA had in fact made a positive adjudication that there had been no disability discrimination by the University against Ms Maxwell. I doubt whether Ms Maxwell would have found that an acceptable result, if it had been reached by the OIA without hearing any evidence from her or without hearing and having an opportunity to challenge the evidence given on behalf of the University and having had disclosure of documents from them and without the benefit of an elaborately reasoned judgment from the OIA setting out their findings of facts and their conclusions of law.
9.
In a sentence what Ms Maxwell is seeking to do by these proceedings is for the courts to turn the OIA into something that it is not i.e. a court of law. As Mr Grodzinski pithily put it on behalf of the OIA, the heart of Ms Maxwell's case is that the OIA "should, in effect, act as a surrogate of the county court." The various ground of appeal are all variants of the same theme.
10.
If the approach advocated by Mr Jones were correct, it is difficult to see what point there would be in having a scheme, which was established under the 2004 Act not as another court of law or tribunal, but as a more user friendly and affordable alternative procedure for airing students' complaints and grievances. The judicialisation of the OIA so that it has to perform the same fact-finding functions and to make the same decisions on liability as the ordinary courts and tribunals would not be in the interests of students generally.
11.
Recent years have seen the growth of alternative processes of inexpensive dispute resolution: they are not intended to be fully judicial, or to be operated in accordance with civil law trial procedures, or to be dependent on what is fast becoming a luxury of legal advice and representation. The new processes have the advantage of being able to produce outcomes that are more flexible, constructive and acceptable to both sides than the all-or-nothing results of unaffordable contests in courts of law.
Reply 46
7
Original post
by deechSorry I'm too knackered to quote everything you asked Julie. On the legal stuff:
Affordable alternatives?
Court fees are not crazy, in the order of a few hundred quid whether you take the university to the High Court for judicial review or if you sue them in the County Courts.
I'd forget solicitors and barristers. There are very few with sufficient knowledge of higher education law, and the hours it would take to prepare your case would cost more than anything you'd hope to recover anyway.
Affordable alternatives?
Court fees are not crazy, in the order of a few hundred quid whether you take the university to the High Court for judicial review or if you sue them in the County Courts.
I'd forget solicitors and barristers. There are very few with sufficient knowledge of higher education law, and the hours it would take to prepare your case would cost more than anything you'd hope to recover anyway.
Sorry but court is not yet an alternative, affordable or otherwise!
Original post
by deechTaking it to court by skipping the OIA?
Clark v University of Lincolnshire which allows you to sue in the County Courts for breach of contract, discrimination or whatever the case may be. There is no obligation to use the OIA first.
Or you can go for judicial review. In this case it has to be a last resort, and if there is an alternative remedy (OIA) you will be refused permission. However, an alternative remedy has to be more effective than the remedy possible by judicial review (there's a few old cases to support that). The two recent students who got thrown out of the high court (Shi was one, the other was Carnell I think), were because they rather stupidly argued that the OIA was ineffective because they took too long, and because the university might ignore their decision. Those arguments were rightly rejected and they got sent back to the OIA. However, if the court agreed that the OIA were not as effective as Judicial Review, then you can skip them out.
So look at all the judicial review cases against the OIA. You can take your pick from any of those to show how/why the OIA are ineffective in your particular case. Maxwell v OIA is probably the best one. There are no successful cases of anyone skipping the OIA that I know of....yet.
Clark v University of Lincolnshire which allows you to sue in the County Courts for breach of contract, discrimination or whatever the case may be. There is no obligation to use the OIA first.
Or you can go for judicial review. In this case it has to be a last resort, and if there is an alternative remedy (OIA) you will be refused permission. However, an alternative remedy has to be more effective than the remedy possible by judicial review (there's a few old cases to support that). The two recent students who got thrown out of the high court (Shi was one, the other was Carnell I think), were because they rather stupidly argued that the OIA was ineffective because they took too long, and because the university might ignore their decision. Those arguments were rightly rejected and they got sent back to the OIA. However, if the court agreed that the OIA were not as effective as Judicial Review, then you can skip them out.
So look at all the judicial review cases against the OIA. You can take your pick from any of those to show how/why the OIA are ineffective in your particular case. Maxwell v OIA is probably the best one. There are no successful cases of anyone skipping the OIA that I know of....yet.
Sorry but Judicial Review is NOT an alternative, since there has to be a judicial decision in order for there to be a review of it.
Original post
by deechCourt as well as the OIA?
Why would you risk skipping the OIA anyway? Just use them, they take 2 years great. If you issued and stayed your claim, and the university didn't concede for two years, guess what you'll get 16% of interest on the compensation if you win.
Why would you risk skipping the OIA anyway? Just use them, they take 2 years great. If you issued and stayed your claim, and the university didn't concede for two years, guess what you'll get 16% of interest on the compensation if you win.
Sorry but nobody skips the OIA, because there is NO ALTERNATIVE! It appears to me that all you have done is read the cases. Do you have any first hand experience of this? Did you win your case? Did you win it with the OIA or in court? Was that after you went to the OIA or instead of going to the OIA?
Original post
by deechMatin v UCL and Crawford v Newcastle University both issued and stayed judicial review proceedings against the university. Or even if you don't figure out what you're doing until it is too late, you will likely be within time for a claim in contract. For Judicial Review you can apply for an extension of time saying you were obliged to complete the OIA procedures first.
You are mistaken about Judicial Review. Judicial Review is NOT dealing with your complaint. It is dealing with a complaint against a previous judicial decision, that is why it is called "Judicial Review"!!! You can only seek a Judicial Review of either the OIA's decision, or that of another judicial or quasi-judicial decision, say of another public body. This does not make a decision about your initial complaint, so is NOT a solution.
Original post
by deechSo far the court has never held that the OIA decision means you can't follow up with a legal case. The most recent case Crawford, the judge said this...
I have considerable doubt, however, whether the fact that the Claimant had pursued a complaint to the OIA would bar the Claimant from relief if he had made good his argument under "issue 1" on the construction and application of the MBBS Stage 5 Handbook.
This is NOT a solution for the following reasons:
1. The legal case would have had to have been pursued, and then stayed, prior to submitting a claim to the OIA, in order for it to be "in time". In order for this to be a valid solution, all eligible students would have to have this opportunity, would have to be fully informed of this solution, and have the ability to act on this solution in 100% of cases.
2. This is an out-of-touch judge speculating, at a time when he had no intention of facilitating the action he describes, and in fact has never facilitated it since that decision.
3. Maxwell is not a different kind of case at all, it is just another case where someone with a claim against a university was failed by the OIA, and then failed again at Judicial Review.
None of the above is of any relevance whatsoever. Maxwell, Sibourema, and all the rest went to Judicial Review AFTER the OIA, to get a judgement that the OIA decision was wrong! What is the point of that!!! The complaint that the student made originally is the complaint that a student requires to be heard fairly. NOBODY is interested in the obscene, corrupt lies that are generated daily by the OIA. We want a system that deals with WHAT HAPPENED TO US, not what Rob Behren's lying, scheming team think about what happened to us!!!
The courts are not stupid, they don't want to place universities above the law despite what the Higher Education Act says.
I have considerable doubt, however, whether the fact that the Claimant had pursued a complaint to the OIA would bar the Claimant from relief if he had made good his argument under "issue 1" on the construction and application of the MBBS Stage 5 Handbook.
This is NOT a solution for the following reasons:
1. The legal case would have had to have been pursued, and then stayed, prior to submitting a claim to the OIA, in order for it to be "in time". In order for this to be a valid solution, all eligible students would have to have this opportunity, would have to be fully informed of this solution, and have the ability to act on this solution in 100% of cases.
2. This is an out-of-touch judge speculating, at a time when he had no intention of facilitating the action he describes, and in fact has never facilitated it since that decision.
Original post
by deechMaxwell, I accept, was a different kind of case where the individual had an entitlement to make a claim before the County Court for disability discrimination. Perhaps it went no further than recognising that the County Court retained jurisdiction after the OIA decision. So, of course, does this Court in its judicial review jurisdiction.
3. Maxwell is not a different kind of case at all, it is just another case where someone with a claim against a university was failed by the OIA, and then failed again at Judicial Review.
Original post
by deechI find it difficult, however, to contemplate that the 'alternative' procedure of the OIA (once completed) could be considered, whatever the OIA's expertise in educational matters, as providing the only remedy on the issue of legality raised by "issue 1" in this case. The argument that judicial review is a remedy of 'last resort' which is at the heart of the 'effective alternative remedy' point may not, in itself, justify the refusal of relief when, as here, the alternative remedy has been pursued albeit unsuccessful. That has, as I have made clear in relation to "issue 2", some bearing on how discretion should or should not be exercised in granting a remedy for the unfairness in the procedure followed by the Appeal Adjudicator. But, in that its relevance lies in the substance of the individual's complaint and how it was dealt with by the OIA rather than simply by a bald reliance on the fact that another 'alternative' procedure has been followed. I recognise, however, the broad thrust of Mitting J's comments in Peng Hu Shi may point in a different direction. Having expressed that view, as it is not necessary to reach a concluded view in this case, I prefer not to.
None of the above is of any relevance whatsoever. Maxwell, Sibourema, and all the rest went to Judicial Review AFTER the OIA, to get a judgement that the OIA decision was wrong! What is the point of that!!! The complaint that the student made originally is the complaint that a student requires to be heard fairly. NOBODY is interested in the obscene, corrupt lies that are generated daily by the OIA. We want a system that deals with WHAT HAPPENED TO US, not what Rob Behren's lying, scheming team think about what happened to us!!!
Original post
by deechThe courts are not stupid, they don't want to place universities above the law despite what the Higher Education Act says.
The Higher Education Act IS THE LAW!! IT DOES place universities above the law!! And yes, you are right, the courts aren't stupid, they take the side of the people who generate the most money in their industry, just like every other industry...and that isn't the student's side!!
Reply 47
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Original post
by deechThe evidence-based complaint system you envisage is effectively a court... and we already have a court system. I would refer you to the court of appeal judgement in Maxwell v OIA which is pasted below. The point of the OIA is they have a rought and ready quick look at the complaint, albeit over many years. However they are not a substitute for the court for the reasons which the judge gives.
Sorry but the point of the OIA is supposed to be to offer fair and impartial adjudication for student complaints, and on that it fails. It is not a" rough and ready quick look at the complaint" at all. Furthermore, there is no ability for the ordinary working class student to be able to afford to take a case to court, without being granted legal aid, or to be able to secure another creative payment solution such as the "ambulance chasers" no win no fee arrangement, or the pro-bono system.
Original post
by deechIf you want to do away with the OIA, and replace it with a court substitute.... it will (a) be much more expensive, and (b) corrupt.
You have absolutely no evidence that a court system would be corrupt.
Original post
by deechI am not by any means saying the court isn't corrupt, but it's the best way to get justice. If you substitute that court with OIA v2.0 it will screw us all over. Legislation saying OIA v2.0 has to consider all evidence and conduct an investigation... means sweet f all. They can do all those things and still be biased and dismiss the student complaint. Then in that situation the court will say tough luck mate, OIA v2.0 is where the buck stops.
I have no intention of substituting the OIA with OIAv2.0. I have no intention at all of the OIA continuing to exist in any form. I have every intention of there being no OIA, and every intention of eliminating the human entity called "student" that has, it seems, a special, less valid right to law than anyone else. The funds which support the OIA can be better spent supporting PEOPLE, who happen to have been cheated by their course providers in some way or other, to get justice in the courts. This could happen, if legislation was enacted which treated students like any other citizen with a right to justice. If the entity "student" is to be considered special, then add "student" to the other protected characteristics of the Equality Act.
Original post
by deechDiscussion and conclusions
[*]I start from a position on which I think that most people would be in agreement: that a complaint of disability discrimination by a student against an institution that exists to provide courses in Higher Education is a serious matter. It is serious both from the point of view of the student claiming to be a victim and from the point of view of the institution as the alleged perpetrator. The outcome of the complaint and the proper procedure for achieving it are significant and sensitive for both sides.
[*]I start from a position on which I think that most people would be in agreement: that a complaint of disability discrimination by a student against an institution that exists to provide courses in Higher Education is a serious matter. It is serious both from the point of view of the student claiming to be a victim and from the point of view of the institution as the alleged perpetrator. The outcome of the complaint and the proper procedure for achieving it are significant and sensitive for both sides.
I'm not sure why you believe that somehow we must discuss people with disability. People without disability have just as much right to justice. While the Maxwell case was particularly difficult because of the disability aspect, it would be wrong to consider it to be the pivotal point in considering a change in the system. In fact I would look to Cardao Pito for such a starting point, since that case severely breached the OIA's invincibility, and is therefore a more positive example of what is aimed for.
The rest of your post was pointless, since I and anyone else reading it are quite able to go and read Maxwell or any other of the travesties of Justice that the OIA like to gloat about on their site. But you entirely miss the point that I have no intention of there being any more OIA generated Judicial Reviews. I will therefore provide a link to the Cardao Pito case here, just to demonstrate the ONLY successful case by this route, which shows clearly that the system is corrupt and cannot work for any student:
http://www.oiahe.org.uk/media/49495/cardao-pito_judgment.pdf
Reply 48
Original post
by MegajulesSorry but court is not yet an alternative, affordable or otherwise!
I don't understand what you mean. Court is the next stage of escalating your complaint, the final stage. I do agree with your starting position completely and can relate to the way you feel. But at the moment there is a route for students to get to court, and your proposals would cut that off.
Original post
by Megajules Sorry but Judicial Review is NOT an alternative, since there has to be a judicial decision in order for there to be a review of it.
This is incorrect. There is no requirement for a judicial decision (by which I guess you mean a decision by a court?). Almost any act, omission or decision by a university is amenable to judicial review since they are a public body enganged in a very public service. Crawford has the decsiion of Newcastle to fail him on his medical course judicially reviewed. Matin had the decision of UCL to withdraw him judicially reviewed.
The only time judicial review was not possible was with the old Visitor system, where the buck stopped with the "independent" Visitor save for the most exceptional errors of law (i.e. if the visitor broke the law himself!). At least with the OIA a student can now take the university to court (not the OIA, which I agree is pointless). If you get rid of the OIA, and have any evidence based system in its place... I promise you the court will then view that system in the same was as it used to view the Visitor, and it will be almost impossible to take the university to court.
The whole reason we still have a route to court is because the OIA does not act like one. If it did, or if you had some alternative which did, then the court will not allow you to have another bite of the cherry.
Original post
by Megajules Sorry but nobody skips the OIA, because there is NO ALTERNATIVE! It appears to me that all you have done is read the cases. Do you have any first hand experience of this? Did you win your case? Did you win it with the OIA or in court? Was that after you went to the OIA or instead of going to the OIA?
Reading the cases is exactly the way the judge arrives at his judgement. The Maxwell case was in the court of appeal.... a high court judge is in a lower court and so he is bound by Maxwell. All you need to do is use that precedent in a proper way and follow it yourself.
Original post
by Megajules You are mistaken about Judicial Review. Judicial Review is NOT dealing with your complaint. It is dealing with a complaint against a previous judicial decision, that is why it is called "Judicial Review"!!! You can only seek a Judicial Review of either the OIA's decision, or that of another judicial or quasi-judicial decision, say of another public body. This does not make a decision about your initial complaint, so is NOT a solution.
A university is a public body. You are right in that a judicial review will only "review" the way the complaint was handled by the university, and not investigate it again. They basically do the exact same thing as the OIA but with three important differences
1) There is no restriction on the decision having to have affected you as a student, the only restriction is if it is a matter of academic judgement.
2) The judge can make legal findings, and will apply legislation to the facts, and will have to determine facts which are in dispute
3) If the university lies to the court, it's not laughed off by a case-handler, but is a criminal offence.... not saying it will be pursued but you can certainly have the university's evidence thrown out.
If you do need the complaint investigated, then it is possible to apply for that in judicial review. You can apply for full disclosure, you can apply to cross-examine witnessess. However, it's a chicken and the egg thing, if you can't show you have good enough reason up front in your application then it will fail.
But, you can still issue civil proceedings in the county court in that case to get a full re-investigation. I wouldn't favour this because then the judge gives weight to oral testimony... and university academics are very good liars in my experience. It's much better to opt for judicial review and have the complaint decided on the facts and on the documentary evidence you include.
Original post
by Megajules This is NOT a solution for the following reasons:
1. The legal case would have had to have been pursued, and then stayed, prior to submitting a claim to the OIA, in order for it to be "in time". In order for this to be a valid solution, all eligible students would have to have this opportunity, would have to be fully informed of this solution, and have the ability to act on this solution in 100% of cases.
2. This is an out-of-touch judge speculating, at a time when he had no intention of facilitating the action he describes, and in fact has never facilitated it since that decision.
3. Maxwell is not a different kind of case at all, it is just another case where someone with a claim against a university was failed by the OIA, and then failed again at Judicial Review.
1. The legal case would have had to have been pursued, and then stayed, prior to submitting a claim to the OIA, in order for it to be "in time". In order for this to be a valid solution, all eligible students would have to have this opportunity, would have to be fully informed of this solution, and have the ability to act on this solution in 100% of cases.
2. This is an out-of-touch judge speculating, at a time when he had no intention of facilitating the action he describes, and in fact has never facilitated it since that decision.
3. Maxwell is not a different kind of case at all, it is just another case where someone with a claim against a university was failed by the OIA, and then failed again at Judicial Review.
Yes so it is a matter of educating students about the existing solutions, rather than throwing away all the lessons that have been learned and starting over.
Three months is very short time to get your act together... you need to be preparing from the internal grievance procedure stage. However, you can still bring legal proceedings after the three-months if you can show that in your circumstances you were obliged to follow the OIA route first.
Kwao v University of Keele. The student skipped the OIA and went straight to court citing Maxwell. It didn't work for him because his circumstances were different... he started off wanting to skip the OIA, and then tried to use case law to back it up. So risky. If you educate students about the limited case law so they understand it, then they follow it themselves and make objective decisions on how to proceed.
Anyway, the judge in that case told him he should have gone through the OIA, then applied for judicial review agaisnt University of Keele... and then he would have good grounds to say he was not outside of the three-month time limit because he was forced to follow the OIA.
The law on this is being defined and narrowed down by the courts all the time. It's at a point now which is far better than in 2004.
Original post
by Megajules None of the above is of any relevance whatsoever. Maxwell, Sibourema, and all the rest went to Judicial Review AFTER the OIA, to get a judgement that the OIA decision was wrong! What is the point of that!!! The complaint that the student made originally is the complaint that a student requires to be heard fairly. NOBODY is interested in the obscene, corrupt lies that are generated daily by the OIA. We want a system that deals with WHAT HAPPENED TO US, not what Rob Behren's lying, scheming team think about what happened to us!!!
Sorry I wasn't clear. Maxwell is to show the judges thoughts on the OIA.... i.e. that it cannot be expected to act like a court. This is the same for all ombudsmen. They are there as a cheaper way to use peoples "expertise" to resolve complaints without legal action. If it fails, then you go to court and cost the taxpayer a small fortune in court time.
I would never take the OIA to court. The only reason to do so would be from the point of view that their invariable failures end up costing the taxpayer money by things needlessly getting taken to court. You should only ever take the university to court in my view because they are the ones who owe you compensation.
Original post
by Megajules The Higher Education Act IS THE LAW!! IT DOES place universities above the law!! And yes, you are right, the courts aren't stupid, they take the side of the people who generate the most money in their industry, just like every other industry...and that isn't the student's side!!
It is one aspect of law. It is up to the courts to then decide how to apply and interpret that written law whenever it comes before a judge. The way it was in 2004 is not the same as it is in 2014. At the moment universities are desperately trying to hang on to the 2004 interpretation, and very often can mislead a student. Likewise the university solicitor will do the same. This is why it is so important to read the case law and understand the actual legal relationship between student-university-OIA.
Original post
by MegajulesSorry but the point of the OIA is supposed to be to offer fair and impartial adjudication for student complaints, and on that it fails. It is not a" rough and ready quick look at the complaint" at all. Furthermore, there is no ability for the ordinary working class student to be able to afford to take a case to court, without being granted legal aid, or to be able to secure another creative payment solution such as the "ambulance chasers" no win no fee arrangement, or the pro-bono system.
If you have evidence that it is not fair or impartial, then you can take them to court out of revenge. But you need to be very certain about the legal definition of those words.... it is a very low threshold for the OIA to be demonstrably fair.
I know about your own complaint, it was solid and the fair solution was obvious - you are right. But that is not teh same thing in legal terms. Legally, it is possible for the OIA to act fairly and yet arrive at the wrong decision. This is what people taking the OIA to court don't get. You cannot infer from the final outcome being unfair that the OIA must have therefore acted unfairly.... you need documentary evidence to show that something they did was unfair. This is very hard to do for obvious reasons. Then you ned up having to argue that the decision was irrational... and this is a very high threshold. The decision could be obviously wrong as it was in your case, but to for a court to rule it as irrational is really difficult.
It's not worth the bother, when you can just move on and and escalate the issue by taking the university to court.
Original post
by Megajules You have absolutely no evidence that a court system would be corrupt.
people in power... it's inevitable, but it can be taken into account and planned for by the complaintant.Original post
by Megajules I have no intention of substituting the OIA with OIAv2.0. I have no intention at all of the OIA continuing to exist in any form. I have every intention of there being no OIA, and every intention of eliminating the human entity called "student" that has, it seems, a special, less valid right to law than anyone else. The funds which support the OIA can be better spent supporting PEOPLE, who happen to have been cheated by their course providers in some way or other, to get justice in the courts. This could happen, if legislation was enacted which treated students like any other citizen with a right to justice. If the entity "student" is to be considered special, then add "student" to the other protected characteristics of the Equality Act.
I really wish I'd read this bit first. Very interesting. The OIA is funded solely by the universities who subscribe to them. What you want would require the funding to come from student tuition fees instead... so part of your tuition fees go to a union contribution from which you can get legal support.
Original post
by Megajules I'm not sure why you believe that somehow we must discuss people with disability. People without disability have just as much right to justice. While the Maxwell case was particularly difficult because of the disability aspect, it would be wrong to consider it to be the pivotal point in considering a change in the system. In fact I would look to Cardao Pito for such a starting point, since that case severely breached the OIA's invincibility, and is therefore a more positive example of what is aimed for.
Disability was just an example, and the OIA use the same example in their guidance documents now. But the principle is a general one.... whenever you ask the OIA to make a legal finding (which is any act of law, the equality act, contract law, the empoyment act, human rights act, etc.).... Maxwell explains why the OIA have no legal duty to act as a court and make those findings.
Original post
by Megajules The rest of your post was pointless, since I and anyone else reading it are quite able to go and read Maxwell or any other of the travesties of Justice that the OIA like to gloat about on their site. But you entirely miss the point that I have no intention of there being any more OIA generated Judicial Reviews. I will therefore provide a link to the Cardao Pito case here, just to demonstrate the ONLY successful case by this route, which shows clearly that the system is corrupt and cannot work for any student:
http://www.oiahe.org.uk/media/49495/cardao-pito_judgment.pdf
http://www.oiahe.org.uk/media/49495/cardao-pito_judgment.pdf
Yes they do gloat. But those cases where my starting point for reading the case law. If they weren't on the OIA website then I'd have never looked at a single case. So their gloating has indirectly led some students to get clued up on how to take them down.
Cardao Pito doesn't do much for me. It has no relevance because it is only applicable to them giving a reason for the amount of damages they recommend. Yes they may have lost... but in terms of defining the law it does hardly any damage to them. I don't get why people get excited about it or why the media reported it as such a big deal.
Look at the recent Wilson v OIA. The student again got a stupidly low award for damages. He tried to use Cardao Pito as a precedent for getting higher awards.... which is misguided. The OIA had learned from it already, and now gave sufficient reasons for their stupidly low awards. The judge told Wilson that the award was well reasoned and in the ball park of reasonable figures, and if he wanted something in the ball park of legal awards then he should take the university to court. I could have told him this from Maxwell. Instead, he found out the hard way by foolishly misunderstanding Cardao Pito.
Reply 49
There are three broad areas of law
1. Criminal Law
2. Civil Law
3. Public/Administrative Law
For Civil Law, which is what is engaged when you sue a university for discrimination or breach of contract, the court investigates the substantive complaint. You have to convince the court of you claim on the balance of probabilities (as opposed to beyond reasonable doubt for a criminal charge).
For Administrative Law, which is what is engaged in a judicial review and also what the OIA tries to copy, there is no reinvestigation by definition. Rather there is an assumption that public bodies are supposed to work in the public interest and they are the experts at making decisions in their field. So the law assumes that the procedures and rules of those experts are correct and in the public interest. Then it only looks at whether those procedures were followed (hence Administrative Law). It's a disgustingly unfair line of reasoning. That is all decisions by all public bodies. Academic judgement is just one feature of that which applies for universities, otherwise there is nothing special to make a student complaint different from a member of the public complaining about a decision to close a hospital. What it boils down to is that the court will not retake the decision themselves, but ask the public body to retake it only if there is any problem you can show on the balance of probabilities has occurred.
Those problems include if a procedure was not followed and it had a genuine material affect, or if there is evidence of bias, or if the law was broken, etc etc. you know what the grounds for Judicial Review are. Now if by fair and impartial, you mean you want the court system to decide the substance of the complaint, it's not going to happen without you going to Strasbourg and changing the fundamental way that UK Law is set up. That will never happen and nor should it.
The solution is to understand the law, and then use it to get your desired outcome. It's more difficult than it needs to be but there's very good reasons for that. If public bodies were subjected to full on legal proceedings and cross-examination in court.... the hospitals would no longer have the resources free in order to heal sick people. That is the reason public bodies are given protection and the benefit of the doubt by law. The system is open to abuse by lying academics who can maliciously bully and victimize students, so long as they can hide it from the procedures followed afterwards. It is up to the student to work around that and figure out ways to beat the academic at this game.
1. Criminal Law
2. Civil Law
3. Public/Administrative Law
For Civil Law, which is what is engaged when you sue a university for discrimination or breach of contract, the court investigates the substantive complaint. You have to convince the court of you claim on the balance of probabilities (as opposed to beyond reasonable doubt for a criminal charge).
For Administrative Law, which is what is engaged in a judicial review and also what the OIA tries to copy, there is no reinvestigation by definition. Rather there is an assumption that public bodies are supposed to work in the public interest and they are the experts at making decisions in their field. So the law assumes that the procedures and rules of those experts are correct and in the public interest. Then it only looks at whether those procedures were followed (hence Administrative Law). It's a disgustingly unfair line of reasoning. That is all decisions by all public bodies. Academic judgement is just one feature of that which applies for universities, otherwise there is nothing special to make a student complaint different from a member of the public complaining about a decision to close a hospital. What it boils down to is that the court will not retake the decision themselves, but ask the public body to retake it only if there is any problem you can show on the balance of probabilities has occurred.
Those problems include if a procedure was not followed and it had a genuine material affect, or if there is evidence of bias, or if the law was broken, etc etc. you know what the grounds for Judicial Review are. Now if by fair and impartial, you mean you want the court system to decide the substance of the complaint, it's not going to happen without you going to Strasbourg and changing the fundamental way that UK Law is set up. That will never happen and nor should it.
The solution is to understand the law, and then use it to get your desired outcome. It's more difficult than it needs to be but there's very good reasons for that. If public bodies were subjected to full on legal proceedings and cross-examination in court.... the hospitals would no longer have the resources free in order to heal sick people. That is the reason public bodies are given protection and the benefit of the doubt by law. The system is open to abuse by lying academics who can maliciously bully and victimize students, so long as they can hide it from the procedures followed afterwards. It is up to the student to work around that and figure out ways to beat the academic at this game.
Reply 50
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deech
Many thanks for your comprehensive and informed reply. I will answer you more fully at some point later. (too tired right now), but just wanted to say that I appreciate being able to discuss this with someone who appears to be more informed than usual, and while I don't totally agree with every single point, I am very appreciative of a balanced view at last! So, for now, thank you for your welcome response.
Many thanks for your comprehensive and informed reply. I will answer you more fully at some point later. (too tired right now), but just wanted to say that I appreciate being able to discuss this with someone who appears to be more informed than usual, and while I don't totally agree with every single point, I am very appreciative of a balanced view at last! So, for now, thank you for your welcome response.
Reply 51
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Original post
by deechAcademic judgement is just one feature of that which applies for universities, otherwise there is nothing special to make a student complaint different from a member of the public complaining about a decision to close a hospital.
It just occurred to me that I am struggling with this concept. An instance of academic judgement, applied injudiciously or otherwise erroneously, either by accident or design, affects a single person. Only that single person will have any interest in addressing that issue. It would be a massive injustice to that person to consider this in light of all academic judgements made by a university. I don't therefore see how this compares with a member of the public complaining about a decision to close a hospital, which IS obviously a matter for public concern.
Reply 52
Original post
by MegajulesIt just occurred to me that I am struggling with this concept. An instance of academic judgement, applied injudiciously or otherwise erroneously, either by accident or design, affects a single person. Only that single person will have any interest in addressing that issue. It would be a massive injustice to that person to consider this in light of all academic judgements made by a university. I don't therefore see how this compares with a member of the public complaining about a decision to close a hospital, which IS obviously a matter for public concern.
A university is a public body, the same as a local council. Both the student and the member of the public can only have their complaint reviewed under administrative law.... that is the court won't care whether the student failing his course / hospital closure were correct outcomes because it is not in a position to interefere. In both cases you're stuck having to argue against the way the decision was made, which the court can review. The actual process of making such decisions is therefore deferred to the expertise of the public body. Students are no worse off than anyone else in the way this limits their ability to get justice.
Academic judgement is the only extra limitation for students to contend with, there is no equivalent of that in any other public sector as far as I know. That means certain parts of the way a decision is made by a university can be immune from legal action.
You could potentially argue over when academic judgement should and shouldn't apply. To do so your would have to convince the judge that your circumstances are so unique that they were not forseen by the legal definition of academic judgement. In other words the law is wrong/incomplete. Then you would have to propose to the judge how the law should be ammended in order to decide the exceptional circumstances in which academic judgement should apply. Then would need to rely on academics as expert witnesses who can interfere with the original academic judgement. None of this is even remotely possible or worth risking in my view. It's much easier to work around the academic judgement areas and beat the university on other grounds.
Reply 53
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Okay, it appears to me that you are saying that nothing I have suggested so far can work. Since you appear to be well informed, what course of action do you suggest I should I take, or that I should have taken, (since I'm assuming that my formal decision from the OIAHE in October 2011 was the start of a time limit which now bars me from taking further action.), given that you say you are aware of the details in my case?
Reply 54
Original post
by MegajulesOkay, it appears to me that you are saying that nothing I have suggested so far can work. Since you appear to be well informed, what course of action do you suggest I should I take, or that I should have taken, (since I'm assuming that my formal decision from the OIAHE in October 2011 was the start of a time limit which now bars me from taking further action.), given that you say you are aware of the details in my case?
I think what you should do is help to inform other students of their legal rights. I'm only well informed because I had a practice run of how to lose an open and shut case with the OIA, so then I knew exactly what to read up on the second time around.
Within a three month time limit a student will never have the time to do anything else but take the OIA's claims at face value. Instead of trying to change the law (which is a hopeless waste of your time), you should put the relevant legal information in one place and then figure out how to direct students to read it at the very start of the complaints process.
In terms of your own complaint, the time limit for judicial review is long gone. You should have issued a judicial review claim against the university right after the OIA decision. The university would still have said it was out of time since the decision was in Jul 2008 / Oct 2009. However the argument you can use could be:
The Higher Education Act has provision to extend the time limit for discrimination, and for other civil proceedings the OIA website warns that the time limits start at the time of the original incident. There is no mention of the Judicial Review 3 month time limit anywhere. So you can submit this is obviously because Judicial Review is a remedy of last resort, meaning you could never bring it until after the OIA is done with, and that is why it should not be thrown out on the basis of the time limit (otherwise you can't bring a judicial review claim earlier because it would be thrown out, nor can you bring it later as it would be out of time - the court should never hold that this is the case as it is simply perverse). The more recent judgement in Kwao v Uni of Keele backs up this point.
However, 4 years later you can't go the judicial review route. Your option is then to sue them for a tort (i.e. negligence, discrimination, breach of contract, etc.). The Limitations Act 1980 contains the time limits, it's 6 years for civil proceedings. The coursework you submitted was Jul 2008... so you have until July 2014 and probably a bit later depending on when the actual tort occurred.
The problem you have is Clark v Uni of Lincolnshire & Humberside. If you sue them in contract when you had the option of judicial review... then the court can view it as an abuse of process. That means you are exploiting the longer time limit of 6 years in order to do something which you ought to have done by judicial review within the 3 months time limit. This is a big risk, if the court agrees it's an abuse of process then your claim gets thrown out. You would have to argue the opposite of the argument above:
You could never have submitted judicial review proceedings at any time, because the law is perverse .... you'd either be too soon and it gets thrown out, or after the OIA it is too late and gets thrown out. So Judicial Review is never an option for you or students in general, and this is why you are left with a civil claim, in which you have 6 years to issue it. You waited 6 years because that gave you a clearer and more accurate idea of the financial damages you have suffered due to the tort.
As I said, I don't agree with that argument because Judicial Review can have been used either after the OIA, or even before the OIA by issuing and staying the proceedings. If you have a sympathetic judge, he might accept that the case law wasn't as clear back then and you genuinely didn't have such options in 2009.
If you want to try it, then you need to read the Civil Procedure Rules on the MoJ website. Part 7 or 8 is the one applicable to civil proceedings. Part 54 is applicable to Judicial review. You have to follow those procedural rules to the letter, or else get a solicitor to do it. The first step would be to send a letter before claim to the university.... you may as well send that as it costs nothing. They might concede some of the claim in their response if you're lucky. If not, then I'd drop the case rather than take the risk of legal action 6 years after the fact.
(edited 11 years ago)
Reply 55
Good evening all
A friend of mine is currently in the middle of OIA proceedings, after her University made a decision that has had a significant impact upon her ability to study, and meant that she is unable to take up employment opportunities.
The University had breached a variety of their internal procedures throughout the process, and she highlighted these to the OIA. The OIA set a deadline for the University to respond to them, and the University did not meet their deadline and responded late. The OIA decided to allow their response.
Is there any precedent or case that she can provide to the OIA to demonstrate that the University's response should be considered invalid, as they didn't respond in time. She is obviously scared about the entire system, and doesn't know where to go. I hope you can help her.
Thanks in advance
A friend of mine is currently in the middle of OIA proceedings, after her University made a decision that has had a significant impact upon her ability to study, and meant that she is unable to take up employment opportunities.
The University had breached a variety of their internal procedures throughout the process, and she highlighted these to the OIA. The OIA set a deadline for the University to respond to them, and the University did not meet their deadline and responded late. The OIA decided to allow their response.
Is there any precedent or case that she can provide to the OIA to demonstrate that the University's response should be considered invalid, as they didn't respond in time. She is obviously scared about the entire system, and doesn't know where to go. I hope you can help her.
Thanks in advance
Reply 56
Original post
by k15h91Good evening all
A friend of mine is currently in the middle of OIA proceedings, after her University made a decision that has had a significant impact upon her ability to study, and meant that she is unable to take up employment opportunities.
The University had breached a variety of their internal procedures throughout the process, and she highlighted these to the OIA. The OIA set a deadline for the University to respond to them, and the University did not meet their deadline and responded late. The OIA decided to allow their response.
Is there any precedent or case that she can provide to the OIA to demonstrate that the University's response should be considered invalid, as they didn't respond in time. She is obviously scared about the entire system, and doesn't know where to go. I hope you can help her.
Thanks in advance
A friend of mine is currently in the middle of OIA proceedings, after her University made a decision that has had a significant impact upon her ability to study, and meant that she is unable to take up employment opportunities.
The University had breached a variety of their internal procedures throughout the process, and she highlighted these to the OIA. The OIA set a deadline for the University to respond to them, and the University did not meet their deadline and responded late. The OIA decided to allow their response.
Is there any precedent or case that she can provide to the OIA to demonstrate that the University's response should be considered invalid, as they didn't respond in time. She is obviously scared about the entire system, and doesn't know where to go. I hope you can help her.
Thanks in advance
The OIA are not really proceedings, so your friend should not expect the university to feel under any pressure or be threatened at all by the process. It is simply an informal review of the complaint she made to the university, to see whether it was handled in a fair and reasonable way.
There are no precedents which the OIA have to abide by. They have their own set of rules and guidance documents, which is all they will follow. Those rules also leave plenty up to the discretion of the individual case-handler, so each case can be dealt with in a completely different way to any previous similar cases, and that is perfectly fine. Unfortunately that means the case-handler will invariably choose to handle the case in a way which is of most benefit to the university.
If your friend has time, she should read the OIA rules and guidance leaflets carefully, then also read the judicial review court judgements against the OIA which are on their website.
There is nothing she can do about the deadline being missed. If I’m not mistaken, the only guidance on that is that the deadlines are important to prevent unreasonable delays to the student. Unless they miss it by months, then it’s unlikely to be seen as unreasonable. On the other hand, your friend should make sure not miss her own deadlines by a single day, just in case the case-handler can use his or her discretion to consider that an unreasonable delay. The logic could be that the university are busy dealing with lots of complaints, so a few days or week delay is not unreasonable. However, a student is not as busy and therefore it is not reasonable for them to miss a deadline at all. Trust me, that is a realistic example of the inconsistent way discretion could be applied by the case-handler. Similarly if the university lie in their response and get caught, nothing will be made of that. However, if your friend lies then all sorts of negative inferences will be drawn from it.
With the procedures which have been breached, that alone is not sufficient. The OIA will not necessarily agree that if the procedures were followed that the decision would have been any different. In that case they will just suggest to the university that they ensure their procedures are followed in future, but in your friends case no harm was done and so the complaint is unjustified.
The OIA will send the university’s response to your friend, and she will have a chance to comment on it. You need to make sure those comments take into account the OIA’s bias and leave them no way to get the university off the hook. One crucial thing is that you will need to demonstrate the decision would have been different if the procedures were followed, or else demonstrate that the decision was plainly unfair and unreasonable in all the circumstances. When doing this, you can’t rely on things which come under the definition of academic judgement. So even if you got awarded 3% in an exam and it was clearly nonsense, the OIA won’t interfere with that because it is an academic judgement (i.e. something which can only be decided by a qualified academic). In the unlikely event of having your complaint upheld by the OIA, the best outcome is to get the university to retake the decision, or let you retake an exam or whatever the case may be. The amount of compensation they award is usually insultingly low thanks again to the case-handler’s discretion.
That is why your friend needs to read up on the OIA, and try to come up with a strategy to get around it.
Reply 57
7
k15h91, your friend doesn't have hardly any hope at all unless s/he has an exceptionally brilliant case put together. I am in discussion with a number of highly intelligent people who have been through the OIA system, only to learn to their detriment that the OIA is corrupt and don't even read the evidence that is placed before them. Add 01 to my name, and meet me on Twitter for a better way to deal with it!
Reply 58
Original post
by deechThe OIA are not really proceedings, so your friend should not expect the university to feel under any pressure or be threatened at all by the process. It is simply an informal review of the complaint she made to the university, to see whether it was handled in a fair and reasonable way.
There are no precedents which the OIA have to abide by. They have their own set of rules and guidance documents, which is all they will follow. Those rules also leave plenty up to the discretion of the individual case-handler, so each case can be dealt with in a completely different way to any previous similar cases, and that is perfectly fine. Unfortunately that means the case-handler will invariably choose to handle the case in a way which is of most benefit to the university.
If your friend has time, she should read the OIA rules and guidance leaflets carefully, then also read the judicial review court judgements against the OIA which are on their website.
There is nothing she can do about the deadline being missed. If I’m not mistaken, the only guidance on that is that the deadlines are important to prevent unreasonable delays to the student. Unless they miss it by months, then it’s unlikely to be seen as unreasonable. On the other hand, your friend should make sure not miss her own deadlines by a single day, just in case the case-handler can use his or her discretion to consider that an unreasonable delay. The logic could be that the university are busy dealing with lots of complaints, so a few days or week delay is not unreasonable. However, a student is not as busy and therefore it is not reasonable for them to miss a deadline at all. Trust me, that is a realistic example of the inconsistent way discretion could be applied by the case-handler. Similarly if the university lie in their response and get caught, nothing will be made of that. However, if your friend lies then all sorts of negative inferences will be drawn from it.
With the procedures which have been breached, that alone is not sufficient. The OIA will not necessarily agree that if the procedures were followed that the decision would have been any different. In that case they will just suggest to the university that they ensure their procedures are followed in future, but in your friends case no harm was done and so the complaint is unjustified.
The OIA will send the university’s response to your friend, and she will have a chance to comment on it. You need to make sure those comments take into account the OIA’s bias and leave them no way to get the university off the hook. One crucial thing is that you will need to demonstrate the decision would have been different if the procedures were followed, or else demonstrate that the decision was plainly unfair and unreasonable in all the circumstances. When doing this, you can’t rely on things which come under the definition of academic judgement. So even if you got awarded 3% in an exam and it was clearly nonsense, the OIA won’t interfere with that because it is an academic judgement (i.e. something which can only be decided by a qualified academic). In the unlikely event of having your complaint upheld by the OIA, the best outcome is to get the university to retake the decision, or let you retake an exam or whatever the case may be. The amount of compensation they award is usually insultingly low thanks again to the case-handler’s discretion.
That is why your friend needs to read up on the OIA, and try to come up with a strategy to get around it.
There are no precedents which the OIA have to abide by. They have their own set of rules and guidance documents, which is all they will follow. Those rules also leave plenty up to the discretion of the individual case-handler, so each case can be dealt with in a completely different way to any previous similar cases, and that is perfectly fine. Unfortunately that means the case-handler will invariably choose to handle the case in a way which is of most benefit to the university.
If your friend has time, she should read the OIA rules and guidance leaflets carefully, then also read the judicial review court judgements against the OIA which are on their website.
There is nothing she can do about the deadline being missed. If I’m not mistaken, the only guidance on that is that the deadlines are important to prevent unreasonable delays to the student. Unless they miss it by months, then it’s unlikely to be seen as unreasonable. On the other hand, your friend should make sure not miss her own deadlines by a single day, just in case the case-handler can use his or her discretion to consider that an unreasonable delay. The logic could be that the university are busy dealing with lots of complaints, so a few days or week delay is not unreasonable. However, a student is not as busy and therefore it is not reasonable for them to miss a deadline at all. Trust me, that is a realistic example of the inconsistent way discretion could be applied by the case-handler. Similarly if the university lie in their response and get caught, nothing will be made of that. However, if your friend lies then all sorts of negative inferences will be drawn from it.
With the procedures which have been breached, that alone is not sufficient. The OIA will not necessarily agree that if the procedures were followed that the decision would have been any different. In that case they will just suggest to the university that they ensure their procedures are followed in future, but in your friends case no harm was done and so the complaint is unjustified.
The OIA will send the university’s response to your friend, and she will have a chance to comment on it. You need to make sure those comments take into account the OIA’s bias and leave them no way to get the university off the hook. One crucial thing is that you will need to demonstrate the decision would have been different if the procedures were followed, or else demonstrate that the decision was plainly unfair and unreasonable in all the circumstances. When doing this, you can’t rely on things which come under the definition of academic judgement. So even if you got awarded 3% in an exam and it was clearly nonsense, the OIA won’t interfere with that because it is an academic judgement (i.e. something which can only be decided by a qualified academic). In the unlikely event of having your complaint upheld by the OIA, the best outcome is to get the university to retake the decision, or let you retake an exam or whatever the case may be. The amount of compensation they award is usually insultingly low thanks again to the case-handler’s discretion.
That is why your friend needs to read up on the OIA, and try to come up with a strategy to get around it.
Thank you for your reply.
If the OIA say a complaint is eligible, can it still turn around and say its unjustified?
The current process seems to be a complete waste of taxpayers' money, if its simply serving to allow universities to get away with murder.
Reply 59
Original post
by k15h91Thank you for your reply.
If the OIA say a complaint is eligible, can it still turn around and say its unjustified?
The current process seems to be a complete waste of taxpayers' money, if its simply serving to allow universities to get away with murder.
If the OIA say a complaint is eligible, can it still turn around and say its unjustified?
The current process seems to be a complete waste of taxpayers' money, if its simply serving to allow universities to get away with murder.
You're welcome. When they say it is eligible that means that their rules will allow them to review it. It might not be eligible if for example it was not submitted within three-months, if you don't have a completion of procedures letter, if the complaint is about something that doesn't affect your studies or you as a student, if it is about an employment or university accommodation issue, if it is about a disagreement over your mark which is a matter of academic judgement, if you have already taken the university to court over it, and so forth. There's lots of reasons that can make your complaint ineligible under its rules.
They start by having an admin worker basically check out the basics once your complaint comes in. Once those are met they ask the university to send its response and any relevant evidence. Once they have everything the same admin worker will check again to make sure its all still eligible and ask for your comments (or in some rare cases, they might make a decision at this point based on the information and close the complaint - then you would have to appeal that decision if you disagreed).
What is more likely is that once they have your comments they will pass the case up to a legally trained reviewer (usually a solicitor) and that person will then do the hard work. This new case-handler will check again that it is eligible (in theory they could say no, the first admin staff was wrong and actually your complaint or certain aspects of it are ineligible - and you again have an option to appeal that if your want which will take up more time and invariably fail).
I think in most cases the most likely thing is that the complaint will be deemed eligible up to this point. So when the OIA write back to your friend they will probably confirm the eligibility and say the case-handler is now reviewing it. This will take a long looooooooong time.
If your friend is still alive and well, at this point the case-handler can turn around and say the complaint is unjustified and give you the draft decision with their reasons for that. Your friend has a chance to reply to that draft decision to correct any errors. The case-handler takes those into account, then issues a final decision (which will still be unjustified like the draft decision was no matter what comments your friend made).
That is the standard procedure. If your friend is looking for a solution like getting to retake an exam, or getting an appeal about her grade re-heard or something, the she needs to work very hard to force the OIA down a path which will uphold her complaint. She can do this by realising the OIA will not break their own rules, and figuring out a way to get her outcome through those rules.
On the other hand, if your friend wants financial compensation, it will be insultingly low even if the complaint is justified. There is nothing you can do about that, and she needs to take the university to court afterwards for more money. However, she should still try her hardest to win the OIA case even if the compensation is £150, because that will help to convince the court. If you lose at the OIA and then go to court, you can still win but it just makes it more of a challenge.
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