Not all equality claims are equal: Weaknesses in the Office of the Independent Adjudicator's (OIA) approach to Equality Act 2010 claims
27 January 2016
by Christopher McFarland
In 2005, The Office of the Independent Adjudicator (OIA) was appointed to operate the Students Complaints Scheme established by the Higher Education Act 2004. Its aim was to provide University students with a means to resolve University complaints informally and without the cost of litigation. OIA solicitors , Sinclairslaw have been involved in scores of these cases of the many years it has operated in the Higher Education Law field. The OIA are not themselves solicitors, thus its decisions will not be treated as court judgments , but it is supposed to provide a cost effective opportunity for a student to launch an appeal.
However, the OIA’s wide discretion in the manner it investigates and decides cases, as well as its approach to Equality Act claims following the decision of the Court of Appeal in Maxwell1has significantly affected the OIA’s effectiveness in dealing with cases of discrimination particularly where a student has suffered from a disability. Combined with its increased workload and the subsequent delay in resolving cases, students should now carefully consider whether they should bring such claims to the OIA instead of the Court.
Having begun as a voluntary system in March 2004, the OIA was appointed to operate the newly devised student complaints scheme under the Higher Education Act 2004 by the Secretary of State for Education and Skills and the Welsh Ministers on the 1st December 2004.
The student complaints scheme set out in the Higher Education Act was designed to replace the previous visitor system whose jurisdiction to investigate complaints against academic institutions had been confirmed by the House of Lords as far back as the 17th century.1 It was considered that the visitor system was no longer fit for purpose in the modern era and accordingly a newer system was created by Parliament to provide an independent student complaints scheme which could decide a whole range of student complaints. As described by the OIA in its first Annual Report in 2004: "While well-tried and acceptable in itself, the Visitors jurisdiction was coming to be regarded as deficient in applying modern standards of openness and human rights to the resolution of complaints."
The OIA’s approach to discrimination claims
Despite its aim to resolve claims in accordance with human rights in 2004, the OIA has displayed great reluctance to decide discrimination cases which have been brought before, despite this being a form of prohibited conduct under Article 14 of the Human Rights Act 1998.1
On its website, the OIA has continued to assert that: "In considering issues related to discrimination the OIA does not act as a court. It does not investigate or make legal findings in the same manner as a court. However, it is appropriate for the OIA to refer to the law and guidance on discrimination to form an opinion as to good practice and to decide whether the provider has acted fairly. So, for example, we might look at whether a provider has given adequate consideration to whether its procedures are placing a disabled student at a substantial disadvantage and, if it has not, we might recommend that it does so. However, we would not make a finding that the provider had discriminated against the student."
Experience informs us that this policy adopted by the OIA may not be implemented in practice, in the Maxwell case itself, the OIA failed to make any finding as to whether the acts of the University amounted to discrimination and accordingly whether the student should be entitled to restitution accordingly. In his famous judgment, Mummery LJ, in dismissing the Claimant’s case that the OIA’s failure to make a finding on the discrimination point was unlawful, stated: "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."
Since this judgment, the OIA have adopted a policy that it will not comment on whether a University’s actions are contrary to the Equality Act 2010 although it may, on occasion, order a University to reconsider a case again in light of a student’s disability even if the evidence of this arose after the University had completed its internal procedures. 3 For disabled students, whose disability may be at the heart of their claim, this policy has affected the usefulness of the OIA to will leave many of those students to turn to the courts for help, something which the student complaints scheme was designed to avoid.
This position of avoidance seems contrary to the intention of Parliament when creating the student complaints scheme under the Higher Education Act 2004. At s.17 (1) of the Act, Parliament specifically stated that in claims of defamation "any proceedings relating to the review under the scheme of a qualifying complaint are to be treated as if they were proceedings before a court." Considering that defamation claims are also likely to involve making decisions on contested questions of fact and law, in the same manner as discrimination claims as set out by Mummery LJ in Maxwell, it is difficult to reconcile how the OIA’s review process should be treated "as if they were proceedings before a court" by statute in relation to one civil claim whilst expressly being prohibited as being treated as such in another. It is also difficult to envisage how the OIA could decide whether an act, which a student claims was discriminatory, was reasonable without passing comment, even implicitly, on whether or not it was discriminatory.
s.19 of the 2004 Act specifies that the time limits applicable to bring discrimination claims to the Court under various Acts (now all incorporated within the Equality Act 2010) should be extended by ‘two months’ where the complaint was first brought to the Student Complaints Scheme. This extension has now been increased to 3 months (a total of 9 months from the date of the discriminatory act1) by s.118 (3) of the Equality Act 2010. Accordingly, it would seem contrary to the intention of Parliament in both the 2004 and 2010 Acts that the Student Complaints Scheme operated by the OIA should not decide discrimination cases, as this extension will be of little use if discrimination cases cannot or will not be decided by the OIA. This situation puts a significant burden on students as they will be faced with the significant financial burden of bringing in addition to the shorter 6 months deadline for issuing the complaint.
This position is exacerbated by practical considerations, as it is now unlikely that a complaint to the OIA, appealing the University decision, will be decided before the 9 months’ time limit expires. In its 2014 Annual Report, the OIA states that it has taken on average 207 days to decide a complaint2 a period of more than 6 months and 3 weeks. Given that the OIA will usually only consider a complaint after all of the University’s internal complaints procedures have been exhausted3 and these internal procedures are likely to take several months or longer to complete, it would seem that even the most prompt of applications to the OIA are unlikely to result in a decision being made within the extended time limit to apply to the courts. This could therefore lead to a situation where a student, complaining of discrimination and having made an application the OIA with a view to saving unnecessary costs (something which is encouraged by the overriding objective of the Civil Procedure Rules) is left without a declaration by the OIA as to whether the University have in fact discriminated against them and are out of time to bring such proceedings to the Courts.
In these circumstances, it is unlikely that a student will benefit from bringing Equality Act claims to the OIA and accordingly should proceed to bring this action to Court at the earliest opportunity, possibly even forgoing the internal complaints procedures themselves. Given the increases in Court fees and the reduction in the availability of Legal Aid in the preceding years, it may be that only those few students with the financial means to bring such claims will have access to a true determination of their rights. Those students without the means to bring Court proceedings and who feel that their rights have been breached may now be prevented from receiving a declaration that the University has breached the Equality Act.
Since the Children and Families Act 2014 came in to force in England, the SEND Tribunal are regularly hearing cases and making decisions in relation to students up to 25 years of age. Although Education Health Care Plans (EHCPs) do not apply to University’s, the SEND Tribunal could be used as a means to bridge the gap between the OIA’s informal decision making process, which has demonstrated a reluctance to decided discrimination cases, and the costly and complex process of bringing a claim to the Court.
The SEND Tribunal is generally free to users and is a less formalised process than a Court which encourages self-representation. As costs will not usually follow the event, this also greatly reduces the financial pressures which come from bringing the action to Court. The Tribunal also has a greater degree of specialism than a Court and panels will usually comprise of one or two specialist education ‘wing members’ (usually teachers) in addition to a legally qualified judge. This means that it is better placed to understand the nature of the student’s disability, the effect this would have on their education and the reasonable adjustments which the University should have implemented.
Given the difficulty the OIA has had in deciding discrimination cases, this option may very well benefit students in providing with a means of access to a less costly, less formal and more specialised decision maker to decide such cases. Although it would require a statutory amendment to the remit of the Tribunal itself, this could resolve an increasingly difficult and concerning element of higher education law, where students without the means to bring a Court claim may be left without a remedy where they have not received appropriate support for the disability at University.
The current OIA system of handling disability discrimination claims is not fit for purpose; it cannot determine questions of fact and refuses to declare whether a University has breached its Equality Act 2010 duties.
If the OIA’s function is to truly assist Universities in improving their practices, then the threat of a declaration that it has discriminated against a student must surely carry greater weight than whether the act in question was unreasonable and lead to faster, more effective reform. In its current form the OIA lacks a true threat in this area and one must consider, given that number of complaints has risen significantly over the first 10 years of the OIA’s existence, rising from 542 in 2005 to 2,040 in 2014, whether the OIA and its sanctions are a true deterrent to poor University practice. The persistent rise in tuition fees has brought with it an increased demand from students that the University be more accountable for their decisions, which may have a significant financial impact on their students and it is in the interests of both parties that the student complaints scheme is sufficiently specialist and robust to resolve all student complaints.
Extending the remit of the SEND Tribunal to include discrimination cases relating to university students will allow student’s access to a more specialist decision maker with the power to decide questions of fact, without the costs and formality which apply to court cases. Moreover such a move should be welcomed by the OIA itself as this will allow it to relieve its burdensome caseload of cases which the scheme itself feels ill-equipped to decide. A more robust decision making system under the SEND Tribunal would clearly benefit students and university’s alike as it will provided more consistent, better quality decisions than currently offered by the OIA system. However, in a climate where the Government is consistently seeking to save costs and funding for the justice system, it is unlikely that the political will will exist to extend their powers accordingly.
Until a longer term solution can be found, students would be wise to consider pursuing discrimination claims through the Court at the earliest opportunity as the OIA procedure bears a significant risk that the discrimination claim may not be decided and the student may thereafter be out of time for bringing such a claim to the Court, leaving them without an appropriate remedy.
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