Matin v University College London [2012] EWHC 2474 (Admin)

Case No CO/9344/2011[2012] EWHC 2474 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Sitting at Cardiff Crown CourtDate 05/09/2012
Before
MR JUSTICE WYN WILLIAMS
Between
FORHAD MATINClaimantUNIVERSITY COLLEGE LONDONDefendantABDUL MATINInterested Party
The Claimant appeared in person (assisted by a Litigation Friend) for in personSarah Hannett instructed by the Defendant’s Legal Services Department appeared for DefendantHearing Hearing date: 21 August 2012
Judgment

Undisputed facts

[1]Until 22 August 2011 the Claimant was enrolled on an MBBS (Undergraduate Medicine) degree course at the Defendant. The Claimant commenced his course of study in September 2010 and he passed the first year examinations which he sat in June 2011. The Claimant was due to commence his second year of study in September 2011.[2]On 17 August 2011 the Claimant sent an email to Dr Brenda Cross, the Sub-Dean and Faculty Tutor of the Faculty of Medical Sciences, which was in the following terms:- “May I inquire as to the process by which a medical student may withdraw themselves from the medical degree program (i.e. what form should be filled in, etc…).”[3]The same day Dr Cross replied:- “I am sorry to hear that you are considering withdrawing from the Medical Degree programme. It would be helpful to have a discussion (either by phone or in person) to understand your reasons, not to dissuade you but to provide appropriate advice. There is no specific form to be completed. Instead we would ask that you confirm in writing that you wish to withdraw. Withdrawals are irreversible so it is important that you make this decision only after careful consideration. If you are uncertain or need time to sort out any difficulties, it is often better to interrupt your studies for a year with the option of coming back. Are you considering an alternative degree programme and if so would it be for this year or next? As you are probably aware you will be required to pay higher tuition fees if you apply for 2012. You will also need to clarify the level of support you can expect to receive from the SLC.”[4]The next day (18 August) the Claimant emailed Dr Cross confirming that he was “formally withdrawing from UCL medical school.” Dr Cross replied:- “I am sorry you did not feel able to provide any further information about your reasons or future intentions, but note your intention to formally withdraw from the MBBS programme at UCL. The information will be forwarded to UCL Registry….” Approximately 3 minutes later Dr Cross sent this exchange of emails to Carol Ferguson (copied to various other people) and asked Ms Ferguson to inform “the relevant people in UCL Registry” of the Claimant’s withdrawal from the course.[5]On 19 August the Claimant emailed Dr Cross to indicate that he was willing to discuss the reasons for withdrawing from the course. Dr Cross replied suggesting that a meeting should take place either on 23 or 24 August.[6]August 19 2011 was a Friday. Over the weekend the Claimant had a change of heart. He emailed Dr Cross to tell her that he had changed his mind about withdrawing from the course and asked that she inform “Registry” that he did not intend to withdraw. Dr Cross replied:- “UCL Registry has already been informed of your intention to withdraw but I will see what I can do to reverse the instruction. I would still like to see you to understand your recent dilemma. Can you therefore please confirm whether you are able to make an appointment at 3.00pm on Tuesday?”[7]On 22 August the Claimant received notification from the Defendant that he had withdrawn from the course. The notification was computer generated. However, as arranged, a meeting took place between the Claimant and Dr Cross on 23 August. The Claimant was accompanied by his father to the Defendant's premises but the father was not present when Dr Cross and the Claimant spoke. The Defendant has disclosed notes which Dr Cross made setting out what was discussed at the meeting. At this stage it is sufficient to record that the Claimant does not accept the accuracy of certain aspects of the notes made by Dr Cross. What he does accept, however, is that he told Dr Cross that he wished to withdraw from his course and that she gave him until 9.00am 25 August to consider his position further. Dr Cross’ notes end as follows:- “Have given him until 9.00am Thursday (25 August) to change his mind or advise of interest in transferring. If I do not hear (from him) I am to assume withdrawal is his final choice.”[8]On 26 August 2011 (probably) the Claimant sent an email to Dr Cross “to reconfirm” his decision to withdraw from UCL. He asked her to email him when he had been “formally withdrawn”.[9]On that same day, Friday 26 August, 2011 Dr Cross sent a lengthy email to the Claimant. Given its terms, the probability is that this email was sent to the Claimant after Dr Cross had received the email which confirmed the Claimant’s decision to withdraw from his course. Dr Cross’s email was as follows:- “Thank you for coming to see me on Tuesday 23 August when we discussed at length the possible reasons for your withdrawal from the MBBS programme. We also discussed various alternative options including transfer to an alternative programme at UCL. As possible ill-health was one of the reasons suggested for your withdrawal, an interruption of study would have been an option to give you further time to reflect and seek medical advice. I am aware that you have discussed this with your PDS tutor who is similarly concerned that you may be making a decision at an inappropriate time. Health was not the only reason for possible withdrawal. Concerns related to your possible Fitness to Practice in light of statements made on your UCAS application and at interview were the initial reasons given for your decision. For a combination of reasons then you thought that you were unsuited to a career in medicine. You denied that financial issues played a part in your decision. At our meeting you were advised that your record at UCL had already been closed following your original request to be withdrawn despite your subsequent email retracting that decision. Should you have confirmed this week that you wished to continue with your studies at UCL either on the MBBS or an alternative programme, or if you had decided to interrupt your studies for a year it would have been possible to reopen your record. I note now your final decision that you wish to withdraw formally from UCL. Your record will therefore remain closed. Should you subsequently wish to study again at UCL you will need to reapply through UCAS. An academic reference would no doubt be required from the Medical School in any future application for university study either at UCL or elsewhere. Please let the Medical School know in due course if a reference is required.”[10]There was no immediate response to that email. In particular there was no immediate complaint from the Claimant that the email was not an accurate summary of what had transpired at the meeting on 23 August.[11]Unbeknown to Dr Cross and contrary to what she had written in her email of 17 August the Defendant had issued a document about the process to be followed in the event that a student wished to withdraw from participation in a course on a permanent basis. At Trial Bundle Tab 3/27 there is a document which has been downloaded from the Defendant's website. The document contains the following information:- “WITHDRAWAL OF STUDY Withdrawal of Study is for students who intend to leave UCL permanently prior to completing their final examinations. Once you have withdrawn from a programme you cannot return to the programme at a later date without reapplying to the Admissions Office. The effective date of withdrawal will affect the amount of student tuition fee liability, as well as eligibility for bursaries, student loans and other benefits.” The document continues:- “Undergraduate and Graduate Taught Students i) The ‘Notification of Withdrawal’ Form will require approval from the Department and Faculty. The Faculty must forward the form to the Student Records office within one month of the effective date of withdrawal. If received later, the effective withdrawal date will be the date of receipt, not the date on the form.” The words “Download an application form” then appear.

The document continues:-

[12]A specimen Notification of Withdrawal form is at Trial Bundle Tab 3/29. It begins with the following statements:- “Please read the guidance notes before completing this form. This form must be sent to the Student Records office within one month of the effective date of withdrawal. If received later, the effective withdrawal date will be the date of receipt, not the date on the form.” The form then contains space for all relevant details of the student to be completed and the date of effective withdrawal and the reason for withdrawal specified. So far as the reason for withdrawal is concerned the form contains 10 boxes against which there are brief explanations as to why a student has withdrawn. The person completing the form is invited to tick the relevant box or boxes. If the boxes do not match the reason for withdrawal, the reason can be provided separately. The form then contains space for an appropriate person to signify departmental and faculty approval and provide his or her details. There is no requirement on the face of the form that it be signed by the student intending to withdraw from a course.[13]As I have said, Dr. Cross was unaware of the existence of this form. As at early September 2011 the Claimant was also unaware of it. It is common ground that a notification of withdrawal form was never completed in respect of the Claimant.[14]On 8 September 2011 a telephone conversation took place between the Claimant’s father and Dr Caroline Aspinwall. The Claimant’s father had wanted to speak to Dr Cross but she was unavailable. Dr Aspinwall made notes of the telephone conversation which have been disclosed to the Claimant. The accuracy of the notes is questioned in a witness statement made by the Claimant’s father on October 11 2011.[15]On 11 September 2011 the Claimant emailed Dr Cross to inform her that his withdrawal from his course was a mistake and that he would like to resume his studies. On 12 September 2011 the Claimant sent a long letter to Dr Cross. It is necessary to set out its terms in full:- “Re: Reinstatement of Forhad Matin on MBBS programme I am writing to rescind my withdrawal from the MBBS programme at UCL medical school. I really do wish to pursue my course and not lose my place as I have worked extremely hard in order to study medicine as well as throughout this past year on my degree. During the meeting, I felt pigeonholed and did not feel able to express myself as I should have. I made a huge mistake to go along with my withdrawal when I in fact attended the meeting to confirm with you that I wished to stay on. I am still quite confounded as to how this happened or even how it got so far. I do not feel that you understood me very well in the meeting, which is quite apparent from your email to me after the meeting, as you were not able to succinctly state what my reasons for leaving were, or pin down exactly what made me want to leave, just a whole bunch of random stuff. I am very sorry if I confused the situation, as you were clearly not aware of the full circumstances and I will inform you of them now. I asked to withdraw due to the fact I felt I was causing my family an enormous amount of stress financially. There have been difficulties with this and I did make you aware of this previously when I wrote to you on 13/10/2010 to apply for further funding. At the time, I really thought that studying for the next 5 years and not earning money would destroy my family and I thought that by leaving university, I could help earn money and then go back to studying in the future after earning enough for us to live n. I clearly had not thought this through properly and made the mistake of asking to withdraw when that was the last thing I wanted. I did not understand the withdrawal process and went to my tutor Dr Brett for help, he advised me not to withdraw and that it would not be in my best interests. Thus, to convince him, I made up some excuses for withdrawing, although he clearly did not buy them as he asked me again not to withdraw. I felt strained by the whole thing and could not see a way out. I was totally focused on studying and at the same time trying to deal with the financial problems my family was going through. I really thought that withdrawing was the only way to help alleviate my family from difficulty. I realised quite quickly that this was not what I wanted and talked to my family about this. They assured me that finishing my studies would be better than leaving to earn. I understand now that I should not have gone along with the withdrawal. I have spoken to my family and GP about this in depth and all suggest that leaving would be of no benefit and I asked them for their help in regaining my place back at medical school. I really did not intend to withdraw as in informed you by email on 20/08/2011 before the meeting took place, as this was definitely not what I wanted. I do wish to complete my studies as I planned right from the start, I do not want to leave a course that I am thriving on and relish. I have enjoyed my time at UCL, immensely; it is the university that I have always wished to study at after visiting the university numerous times during my school years. I was lucky enough to be selected to attend extra classes at UCL taught by UCL professors and was in awe of the place right from the beginning. I always felt at home at UCL, and experienced the medical school from a young age. I was selected for the Dick Whittington Summer School when I was 16 and this cemented my wish to study medicine at UCL due to the wonderful people I met on placement there. I also undertook placement with a consultant at Royal Free and this further reinforced that studying medicine at UCL was the right choice for me. Please give me a chance to finish my medical studies as I know this is an incredible opportunity to make a substantial difference to my life as well as for my family. I am completely committed to a career in medicine as a doctor and will do my utmost to make this happen.” The letter was copied to various other members of the Faculty. There were a number of enclosures with the letter. One of the enclosures was a letter from the Claimant's GP, Dr Telesilla Wardle, dated 12 September 2011. That letter provided personal information about the Claimant’s childhood. It also explained Dr Wardle’s view that the Claimant had made a rash mistake in withdrawing from the course. The letter ended with the following plea:- “I would like to ask you as Faculty Tutor if under exceptional circumstances you could possibly help to reverse decision from UCL for him to discontinue his studies be reversed and for Forhad to be allowed to continue with his medical studies. I am aware that such withdrawals are irreversible and that Forhad could have interrupted his studies for a year with the option of coming back. Nevertheless, I feel that his decision was a rash one and that he merits another chance to continue with what is a promising and brilliant medical future.”[16]Dr Cross replied to the Claimant by email on 14 September 2011. The substance of her reply was contained within the following 2 paragraphs:- “I have little further to add to the message sent to you on 26 August. As far as I am concerned the matter is now closed. In my opinion it is too late to reopen your record. You were given ample opportunity to reach a final decision, which you re-confirmed to me (as a wish to withdraw) by email on 26 August, knowing the consequences.” Dr Cross went on to inform the Claimant that should he wish to pursue the matter he would need to invoke the Defendant’s Student Grievance Procedure (hereinafter referred to as the “Grievance Procedure”).[17]On 17 September 2011 the Claimant lodged a grievance under the Grievance Procedure. He did so by completing a standard form. In that section of the form in which he was asked to summarise the grounds of his complaint he wrote:- “My withdrawal from the MBBS programme was wrong, invalid and ineffective because the process was procedurally flawed and unreasonable. I would like to be reinstated on my medical course and I have submitted relevant supporting documents including a letter from my GP which was not considered by Dr Cross.” In a separate section of the form the Claimant set out an accurate chronology of events between 17 and 26 August though in much shorter form than that which is set out above.[18]On 21 September 2011 the Claimant wrote to Professor Jane Dacre, the Vice Dean and Director of the Medical School. He asked that pending the resolution of his grievance he should be given permission to attend classes from 26 September 2011. The letter concluded with the threat of these proceedings.[19]So far as I am aware there was no reply to that letter. However, on 27 September 2011 Mr. David Ashton, Director of Student Services, wrote to the Claimant about the grievance procedure which he had initiated. The substance of the letter was as follows:- “A Chair of the Grievance Panel has been appointed and has considered the case you submitted, along with myself, acting as the representative appointed by the Director of Registry and Academic Services (who now fulfils the Academic Registrar role). It has been decided to seek further information from your medical school in order to determine whether there is a case to answer or not. The case is being sent to the department today. The Medical School has 21 days to reply to the request for information. Once this information has been received, we will reconsider the case, together with your original submission. I therefore hope to be in touch with you soon after that time to update you on progress.”[20]On 28 September 2011 an interview between the Claimant and a Dr Raven was due to take place. However, the interview did not happen since the Claimant wished to be accompanied by his father and sister whereas Dr Raven insisted that the Claimant be interviewed alone. The next day, 29 September 2011, these proceedings were commenced.[21]Meanwhile Dr Cross had been sent the Claimant's grievance application form. She was asked to respond, formally, to the Claimant's grievance and she did so in a lengthy letter dated 5 October 2011. The letter was consistent with Dr Cross’ notes of the meeting of 23 August and her email to the Claimant of 26 August but it contained much greater detail. Purely coincidentally, the next day, 6 October 2011, the Claimant wrote to Mr Ashton. In relation to the Grievance Procedure the Claimant wrote:- “Please could you confirm the name of the appointed Chair of the Grievance Procedure and whether his/her interest is conflicted? Also, please could you disclose to me copies of the Medical School’s response to the Grievance Procedure, i.e. all information and documentation, which will be submitted by the Medical School since you stated, “the Medical School has 21 days to reply to the request for information”. It is important as the disclosures will enable me to reply to the Medical School’s submissions.”[22]The Defendant filed its Acknowledgement of Service in these proceedings on 10 October 2011. The Acknowledgement of Service was accompanied by summary grounds for resisting the claim. The primary point taken was that judicial review was premature given that the Claimant had invoked the Grievance Procedure. The Acknowledgement of Service was also accompanied by a number of documents which included Dr Cross’s notes of the meeting of 23 August 2011. The Defendant did not disclose Dr Cross’s letter of 5 October 2011 although in the context of the judicial review that may not have been strictly necessary at that stage.[23]On 20 October 2011 Mr Ian Dove QC sitting as a Deputy Judge of the High Court refused permission to apply for judicial review. He did so, essentially, because the grievance raised by the Claimant remained undetermined.[24]By letter dated 25 October 2011 (hereinafter referred to as “the decision letter”) Mr. Ashton wrote to the Claimant to inform him that his grievance was not to be pursued i.e. that “there was no case to answer”. Having first summarised the nature of the Claimant’s grievance, Mr Ashton went on to inform the Claimant of the decision and the reasons for it. The reasoning underpinning the decision was encapsulated in the following paragraph from the letter:
“UCL considers that you made an informed decision to withdraw from the programme and you were provided with sufficient opportunity to consider your options. Based on the letter from your GP dated 12 September 2011, there appeared to be no health difficulties that might affect your judgment.”
The letter went on to inform the Claimant that he had the right to ask the Office of the Independent Adjudicator for Higher Education (OIA) to review the grievance if he felt dissatisfied with the decision. I will return to this letter later in this judgment.[25]On the same date i.e. 25 October 2011 the Claimant renewed his application for permission to apply for judicial review. In the normal course of events that renewed application would have come on for hearing within about 8 weeks of the decision of Mr Ian Dove QC. However, the Claimant also decided to involve OIA. Thereafter and consequently the parties agreed that these proceedings should be stayed pending the outcome of a complaint to OIA.

The Involvement of OIA and its significance

[26]On 14 November 2011 the Claimant completed a complaint form to OIA. By this date the Defendant had disclosed to him the letter written by Dr Cross dated 5 October 2011. In the complaint form the Claimant was asked to explain why he was not satisfied with the decision of the Defendant. He wrote:- “The decision of the Grievance Procedure is unfair, unreasonable and unlawful. In spite of my repeated requests to the Medical School, they have failed to serve me copies of the comments and documents submitted before the Chair of the Grievance Procedure on 06.10.2011. Such that it prevented and deprived my right to defend myself against defamatory remarks made by Dr Cross in an unsigned 4 page statement made on 05.10.2011 in order to justify her malicious decision and wrongful withdrawal process. Please see my letter to David Ashton (Director of Student Services) dated 06.10.2011 at S1 page 30, but he has yet to reply or even acknowledge my letter. It is worthwhile to note, the Grievance Procedure’s decision was made on 25.10.2011 and I only found out about the existence of the 4 page unsigned statement by Dr Cross to the UCL Grievance Procedure after a letter by Mr Simon Griffiths, dated 28.10.2011. It is clear from Dr Cross’s statement that she has an ulterior motive; the remarks she made about me are extremely defamatory, totally untrue and serious damaging to my future career as a doctor. Furthermore, as the Medical School's documents have yet to be disclosed to me and it is highly questionable why these are being kept concealed from me by the Chair of the Grievance Procedure, which clearly prejudiced the Chair’s decision. I still do not know the name of the Chair of the Grievance Procedure, in order to avoid litigation and having to make a complaint to the OIA, on 31.102011. I asked the Medical School to rectify their mistake, see S3 pages 11 and 20-22. I have not received a reply or even an acknowledgment.”[27]In the months that ensued there was detailed correspondence between the Claimant and OIA and also between the Defendant and OIA. At one stage it appeared at least possible that the decision maker at OIA regarded it as unfair to the Claimant that a notice of withdrawal form had never been completed. (see the email of 21 March 2012 from Mr McHale to the Defendant – Trial Bundle Tab 4/31).[28]However, on 29 May 2012 OIA issued its final decision upon the Claimant's complaint. It concluded that his complaint was not justified. It provided detailed reasons for reaching that conclusion. In relation to the failure to complete a notice of withdrawal form OIA wrote:- “16. From the form and guidance notes, I observe the following: i) That it was the responsibility of the student to complete the form. ii) That the form in use at the time of Mr Matin’s withdrawal did not require his signature. iii) The 30 day period during which the form had to be submitted to the Records Office is not, as Mr Matin suggested, some form of cooling off period. The purpose of the deadline is to fix the date for withdrawal so that tuition fees and so on can be calculated. This would prevent a withdrawal of being backdated to avoid a fees deadline. I note here that it will generally be in a student’s interest to set a withdrawal date as early as possible so that tuition fees liabilities do not arise.17. Mr Matin did not complete a withdrawal notification form and was not asked to do so. The university stated that the sub-dean was not aware of the Withdrawal Notification form but that the actions carried out by the School/Faculty when processing Mr Matin’s withdrawal request were at least an equivalent to and probably a more robust procedure than that stipulated in the Withdrawal Notification form. The university says that all the information required was provided by Mr Matin during his meeting on 23 August 2011. It confirmed that Faculty and Departmental approval was provided by way of emails from the sub-dean and school administrator respectively. Mr Matin was made aware of the consequences of withdrawal in the sub- dean’s email to him on 17 August 2011 and of the fact that this decision was irreversible. The sub-dean advised Mr Matin that if he was “uncertain” or needed “time to sort out any difficulties”, that it was open to him to consider interrupting his studies with option of returning after a year out.18. Mr Matin disputes the Sub-Dean’s note of the meeting on 23 August. However, I am satisfied that it provides an apparently contemporaneous (or near contemporaneous) note of the meeting. The level of detailing included on the form is notable. On balance, I do not find plausible Mr Matin’s suggestion that the note has been fabricated by the Sub-Dean. If the Sub- Dean had wished to go to such lengths, it would have been much easier to complete a withdrawal form in Mr Matin’s name.19. It is evident that during the meeting with the Sub- Dean, which took place after Student Records were informed of the withdrawal, Mr Matin was provided with an opportunity to discuss his concerns and present his reasons for withdrawal. It is also evident that alternatives to withdrawal were discussed during the meeting. Interruption to study was one such option that would have afforded Mr Matin additional time to reconsider his decision or seek further advice. It is evident that Mr Matin rejected this and the other alternative options and communicated this succinctly in his email to the sub-dean of 25 August 2011. There are no procedural requirements within the university’s regulations that require the provision of a defined period in which to make such decisions and it is notable that the sub-dean was under no obligation to provide the two days offered between 23 August and 25 August 2011. I am critical of the Medical School for not requiring Mr Matin to complete the form, and for not apparently being aware of the need to do so, and for not arranging the form to be approved by the Faculty and the Department. However I am satisfied that the actions of the School/Faculty met or exceeded the requirements as set out in the form and that the information required was obtained from Mr Matin at the time when the Records Office had indicated that it was still possible to reverse the withdrawal process. I am also satisfied that the university gave Mr Matin appropriate opportunities to discuss his concerns and to change his mind. I am not persuaded therefore that he was disadvantaged by the fact that the form itself was not completed.20. Mr Matin argues that the absence of the form renders the process invalid and that it is the form itself which the Faculty is required to approve, not the process of withdrawal. I am not persuaded by that argument. Although the Guidance notes do refer to the Department and Faculty approving the form, it is presumably the intention of the form to prevent students trying to withdraw without discussing their intentions at Faculty level, and to fix the date of withdrawal for tuition purposes.”[29]OIA dealt much more briefly with the Grievance Procedure itself. It said simply that it was satisfied that “… the university’s final decision, not to pursue Mr Matin’s representation, was a decision available to the university under its procedures and was reasonable in the circumstances.”[30]Ms Hannett, on behalf of the Defendant, strenuously submits that no aspect of the Defendant's conduct towards the Claimant can be categorised as illegal or unfair. However, she also submits that any illegality or unfairness in its conduct towards the Claimant was, inevitably, cured by the decision of OIA. She submits that this claim should be dismissed since all the complaints made by the Claimant have been investigated by OIA and found to be unjustified. The decision of OIA has never been challenged by way of judicial review and it should stand.[31]The Claimant and his litigation friend do not accept that the position is so clear cut. A decision by OIA in circumstances such as these is not binding upon the Defendant. Further it is submitted that the jurisdiction of this court has not been displaced by the decision of OIA and it would be wholly wrong if this court were to conclude that the Defendant’s actions had been illegal or unfair yet also conclude that the subsequent non-binding decision of OIA cured that illegality or unfairness.[32]On the basis of the arguments put before me I do not consider that the decision of OIA, albeit unchallenged by way of judicial review, has the effect for which Ms Hannett contends. In R (Maxwell) v Office of the Independent Adjudicator [2011] EWCA Civ 1236 the Court of Appeal considered its earlier decision in R (Sibororurema) v Office of the Independent Adjudicator [2007] EWCA Civ 1365 and distilled the following principles which are to be found in the judgment of Mummery LJ at paragraph 23:- “(1) The OIA is amenable to judicial review for the correction of legal errors in its decision-making process. (2) That process involves conducting, in accordance with a broad discretion, a fair and impartial review of a student’s unresolved complaint about the acts or omissions of an HEI and to do so on the basis of the materials before it, also drawing on its own experience of higher education, all with a view to making recommendations. (3) The function of the OIA is a public one of reviewing a “qualifying complaint” made against an HEI and of determining “the extent to which it was justified”. (4) For that purpose the OIA considers whether the relevant Regulations have been properly applied by the HEI in question, whether it has followed its procedures and whether its decision was reasonable in all the circumstances. (5) It is not the function of OIA to determine the legal rights and obligations of the parties involved, or to conduct a full investigation into the underlying facts. These are matters for judicial processes in the ordinary courts and tribunals. Access to their jurisdiction is not affected by the operations of the OIA. (6) The review by the OIA does not have to follow any particular approach or to be in any particular form. The OIA has a broad discretion to be flexible in how it reviews the complaint and in deciding on the form, nature and extent of its investigation in the particular case. (7) The courts will be slow to interfere with review decisions and recommendations of the OIA when they are adequately reasoned. They are not required to be elaborately reasoned, the intention being that its operation should be more informal, more expeditious and less costly than legal proceedings in ordinary courts and tribunals.”[33]In my judgment the principle set out in sub-paragraph (5) above, in particular, militates against the suggestion that an unchallenged decision of OIA inevitably cures any illegality or unfairness in the decisions made by the institution whose actions it is investigating.[34]That said, the principle set out at (7) is of some relevance in this case. Although the decision of OIA is not under challenge directly it has adjudicated upon many, if not all of the complaints which the Claimant makes in these proceedings. I accept that I should take account of the decision of OIA and in particular that part of the decision which considers whether the Claimant was treated fairly. I should be slow to reach any conclusions which undermine the decision of OIA. To repeat, however, I do not regard the decision of OIA as binding upon me or necessarily determinative of this claim

The failure to complete the notification of withdrawal form

[35]The Claimant alleges that the failure to compete a notification of withdrawal form renders his withdrawal from the course a nullity. In effect, submits the Claimant, he has never withdrawn from the medical course upon which he embarked in 2010.[36]These submissions are founded upon the terms of the document which the Defendant published on its website – see paragraph 12 above. The Claimant submits that the phraseology in that document appearing under the heading “Undergraduate and Graduate Taught Students” to the effect that the notification form “will require approval from the department and faculty” demonstrates that the completion of the form is a prerequisite to withdrawal.[37]The Defendant has served no evidence in these proceedings. The probable explanation for that is discussed below. However, during the course of the investigation undertaken by OIA the Defendant was asked to give an explanation as to why no form was completed. In an email dated 13 March 2012 Mr Ashton wrote:- “The Withdrawal Form has been in place for some time but Dr Cross was not aware of it. It was introduced to facilitate the recording of withdrawal. Withdrawal from Medicine is relatively rare and has serious implications. It has therefore always been considered good practise for the Faculty Tutor to discuss the underlying reasons for wishing to withdraw and to counsel the student about the implications and give advice on alternative options. It was for this reason that Dr Cross was persistent in seeking a meeting with Mr Matin. The information required for the form was obtained at the meeting and his subsequent email confirmation is the equivalent of a signature. Student Records accept notification of withdrawal from undergraduate students in whatever written form a Faculty provides it. Staff there need to ensure that confirmation is from the relevant Faculty authority. In this case, Carole Ferguson (the appropriate Medical School administrator) acted in that capacity on behalf of Brenda Cross. In addition, Dr Cross’s email correspondence to Helen Notter in Student Records and Carole Ferguson on 26 August serves as confirmation that his withdrawal was sanctioned. Some Faculties use the form but retain it and notify Student Records by email, and in some circumstances they won't use it at all. That is especially true at the time of progression of the summer, when Faculties enter information directly into the Student Records system so records may be updated en masse before enrolment opens for the next academic year, then confirm further updates by email. Mr Matin’s withdrawal in August took place at the time the records were being updated for the start of the 2011 academic year in this way…..”[38]I am not persuaded that the completion of the form was a prerequisite to a lawful withdrawal. I accept the submission made by Ms Hannett that the notification of withdrawal form is simply one way in which the decision to approve a withdrawal can be evidenced properly.[39]Ultimately, a decision about whether to withdraw is a decision which is made by the student himself. It is difficult to imagine circumstances in which the Defendant could justifiably refuse to accept a withdrawal in the face of an unequivocal decision on the part of a student that he wished to withdraw. If that is right it is also difficult to see any justification for the conclusion that the failure to follow a procedure for withdrawal nullifies an unequivocal decision to withdraw. There can be no doubt that the Claimant’s decision to withdraw, communicated on 23 August 2011 and repeated on 26 August, was unequivocal. I simply do not accept that the failure to complete the notification of withdrawal form nullifies the withdrawal.[40]In order to answer these questions it is necessary to scrutinise the conduct and decisions made by Dr Cross in August and September 2011. I do not consider that the Claimant was treated unfairly. The relevant sequence of events is not in dispute. On 17 August 2011 the Claimant sought information about the procedure for withdrawal. Dr Cross responded by informing him that he would need to confirm withdrawal in writing. She also advised him, however, that he should make a decision to withdraw only after careful consideration since withdrawals were “irreversible”. She suggested a discussion so that she could understand the Claimant's reasons for withdrawal and she raised the possibility with him that interruption of his studies or a change to an alternative degree programme were options which he should consider. The next day the Claimant notified Dr Cross in writing that he was “formally withdrawing from UCL Medical School”.[41]It is true that Dr Cross set in motion, immediately, the steps necessary to notify the relevant administrative personnel of the Claimant's withdrawal. As is clear from what occurred subsequently, however, the Claimant would not have been held to the decision to withdraw which he communicated on 18 August 2011.[42]On 19 August the Claimant indicated his willingness to meet Dr Cross. He then emailed her to say that he had changed his mind about withdrawal. Her response, in effect, was to inform the Claimant that she would take steps to give effect to the Claimant's change of heart but, not surprisingly, encouraged the Claimant to meet with her.[43]It seems clear that Dr Cross expected that the Claimant would meet her on 23 August 2011, explain why he had vacillated about whether to withdraw from the course but then confirm his decision to continue with his studies.[44]In fact it is common ground that at the meeting between Dr Cross and the Claimant on 23 August the Claimant notified her that he wished to withdraw from the course. That is clear from the first paragraph of the letter dated 12 September 2011 which the Claimant wrote to Dr Cross (see paragraph 16 above).[45]I appreciate, of course, that the Claimant disputes the accuracy of Dr Cross’s notes as they relate to parts of the conversation which took place on 23 August. In particular he disputes that he gave the reasons for withdrawal attributed to him. He says that he explained his withdrawal simply on the grounds of financial difficulty.[46]I cannot be sure, of course, about what transpired at the meeting. However, it does seem to me that it is much more likely than not that Dr Cross's notes and her email of 26 August 2011 substantially reflect what the Claimant said. It is very difficult to accept that Dr Cross deliberately misrepresented what the Claimant was saying. There is no evidential foundation to support such a conclusion. It is also very difficult to accept that Dr Cross could have been substantially mistaken about what was being said.[47]The Claimant does not dispute that during the course of the meeting Dr Cross suggested alternatives to withdrawal. Further, he does not dispute that she gave him a further period of time i.e. until 9am 25 August 2012 in which to reach a final decision about withdrawal. On 26 August the Claimant confirmed his withdrawal. He did not communicate further with Dr Cross until 11 September.[48]OIA considered that this sequence of events demonstrated that the Claimant had not been treated unfairly by Dr Cross in her dealings with him between 17 August and 26 August 2011. I agree. In my judgment Dr Cross showed proper flexibility in relation to the Claimant's vacillation between 18 August and 23 August. However, on 23 August the Claimant confirmed his wish to withdraw from his course in a face-to-face meeting and on 26 August he confirmed that decision, unequivocally, in writing. It was not unfair of Dr Cross to accept what the Claimant wanted to do at that stage.[49]I should also say that I do not consider that the Claimant was the victim of procedural unfairness on the ground that Dr Cross would not speak to him in the presence of his father. There is no suggestion that cogent reasons were provided to Dr Cross as to why the Claimant’s father should accompany him during the discussion which she then unjustifiably ignored.[50]I am firmly of the view, too, that there was nothing unreasonable or irrational about Dr Cross's decision to accept the Claimant's withdrawal and that she did not fail to take account of relevant factors. I accept, without repeating, the points made on these issues in Counsel’s skeleton argument.

The Claimant's attempt to rescind his withdrawal

[51]In his letter of 12 September 2011 the Claimant attempted to “rescind” his withdrawal from the course. The response from Dr Cross was as set out in paragraph 17 above. Whether or not Dr Cross was correct to write that it was too late for her to do anything to assist the Claimant was not investigated, in any detail, before me. That matters not, however, since it is common ground that the Claimant's attempt to rescind his withdrawal was properly a subject for consideration in the grievance procedure which the Claimant invoked immediately following Dr Cross’ email of 14 September 2011.[52]During the course of oral submissions which the Claimant made he stressed that it was the decisions made by Dr Cross that he wished to challenge. He gave me the clear impression that he was not as concerned to challenge the decision made in the grievance procedure. To be fair to him, however, it is necessary to consider what occurred in the grievance procedure with some care.[53]The Grievance Procedure is contained within a document published by the Defendant. It runs to 52 paragraphs. Paragraphs 10 to 18 are what can loosely be described as procedural rules. The following rules are important in the context of this case:- “12. The academic registrar will acknowledge in writing receipt of the UCL Grievance Application Form and determine, in the first instance and in conjunction with a Chair of the Grievance Panel (normally either the Dean of Students (Academic) or Head of the Graduate School – paragraphs 21 and 22 refer), whether a prima facie case has been established for proceeding with the representation. 13. The student will be notified in writing by the Academic Registrar of the decision to proceed/not to proceed with the representation. If it is decided not to proceed with the representation, the Academic Registrar shall inform the student of the decision, giving reasons, as soon as practicable.15. The Academic Registrar will notify the member(s) of staff concerned (i.e. the respondent(s)) and the relevant Faculty representative and/or Head of Department and/or Chair of the Board of Examiners that a representation has been received. This notification will include a copy of the representation together with a copy of this procedure and an invitation to the respondent(s), in conjunction with other relevant parties/witnesses as the respondent(s) sees fit, to respond formally to the representations within twenty-one days of notification. No further written evidence will be accepted from any party unless specifically requested by the Chair of the Panel (paragraph 18.(b) below refers).16. On receipt of the response from the respondent(s), the Academic Registrar and Chair of the Panel will review their decision to proceed with the representation. If it is decided not to proceed with the representation, the Academic Registrar shall inform the student of the decision, giving reasons, as soon as practicable.” The reference to paragraph 18(b) in paragraph 15 is a reference to a provision which permits the Chair of the Panel to seek further clarification of evidence which has been submitted from “whomsoever …..appropriate.”[54]In the instant case a Chair of a Grievance Panel was appointed and he/she considered the Claimant's complaint together with Mr David Ashton who was acting under the aegis of the Academic Registrar. They determined to seek further information from staff in order to determine whether there was a case to answer (see email quoted at paragraph 19 above).[55]As I have said Dr Cross wrote a lengthy letter dated 5 October 2011 in response to the Claimant's complaint. On 6 October the Claimant sought disclosure of any response which was provided to his complaint so that he could reply to that response (see paragraph 21 above). So far as I am aware the Claimant received no reply to that request.[56]Under paragraph 15 of the Grievance Procedure, as set out above, there was no obligation upon the Defendant to disclose Dr Cross' response prior to making a decision about whether there was a case to answer. There can be no suggestion, in this case, that there was a failure to comply with the procedural provisions set out in the Grievance Procedure.[57]The fact that the Defendant complied with the provisions of its Grievance Procedure does not, necessarily mean that the Defendant acted fairly towards the Claimant. Ms Hannett accepted as much during the course of oral submissions. What fairness requires in any given case is usually answered by the application of the principles set out in the speech of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531. The relevant extracts from Lord Mustill’s speech are:- “What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that(1) where an Act of Parliament infers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.(2) the standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to a decision of a particular type.(3) the principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependant on the context of the decision, and this is to be taken into account in all its aspects.(4) an essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.(5) fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.(6) since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”[58]In his Grievance Procedure application form the Claimant relied, essentially, upon two strands in support of his contention that he should be permitted to continue his medical studies. First he relied upon the sequence of events between 17 August 2011 and 26 August 2011 and suggested that this sequence demonstrated that he had been treated unfairly and unreasonably. Second, he relied upon his letter of 12 September 2011 with the supporting documentation, particularly the letter from his GP.[59]The decision that the Defendant had no case to answer was communicated in letter of 25 October 2011 (see paragraph 24 above). The decision letter explained the reasoning process which had led to the decision that there was no case to answer. As I have said, the reasoning process was encapsulated in a short paragraph which I repeat for ease of reference:- “UCL considers that you made an informed decision to withdraw from the programme and you were provided with sufficient opportunity to consider your options. Based on the letter from your GP dated 12 September 2011 there appeared to be no difficulties that might affect your judgment.”[60]There is nothing in the decision letter which suggests that any reliance was placed upon those parts of Dr Cross's letter of 5 October 2011 which were, at least potentially, contentious. In particular there is no reference within the decision letter to the reasons which the Claimant had allegedly given to Dr Cross as to his reasons for withdrawal. It seems to me to be clear that the decision communicated in the letter of 25 October 2011 was based solely upon facts which were undisputed and a consideration of the Claimant's letter of 12 September 2011 together with the documents sent with that letter.[61]Set against the procedural rules by which the Grievance Procedure was to operate and in the particular circumstances of this case I do not consider that the Claimant was the victim of procedural unfairness on account of the fact that Dr Cross's letter of 5 October 2011 was not disclosed to him. It was not necessary that he have the opportunity to refute what it alleged because the decision makers did not rely upon anything within it which was potentially contentious.[62]I have also scrutinised the decision letter to see whether it should be categorised as unreasonable or irrational. In my judgment there is no basis to conclude that it was either. The conclusion reached by Mr Ashton and the Chair of the Grievance Panel was one which was clearly open to them on the basis of the information provided to them.[63]Finally, I record my view that the Claimant did not suffer unfairness because Dr Raven refused to conduct an interview with him in the presence of his father and sister (see paragraph above 20). There is nothing within the procedural rules governing the Grievance Procedure which suggests that the Claimant had any right to be interviewed at that stage of the procedure. No doubt if the grievance had gone forward to some kind of hearing the Defendant would have permitted the Claimant to be represented by a person of his choice.

Human Rights

[64]The Claimant contends that the Defendant's decisions have interfered with his rights under Article 2 of the First Protocol to the European Convention. I accept Ms Hannett’s submission that the decision of the House of Lords in A v Head Teacher & Governors of Lord Grey School [2006] 2 AC 363 is fatal to this argument. The Claimant has not been excluded from the entirety of the United Kingdom’s tertiary education sector as a result of the Defendant's decisions (as would be required for him to make good his claim that a breach of his rights had occurred).[65]I accept too that there was no breach of the Claimant's rights under Article 6(1) of the European Convention since none of the Defendant's decisions amounted to a determination of the Claimant's civil rights and obligations. In my judgment the analysis of this issue contained within Ms Hannett’s skeleton argument at paragraphs 89 to 92 is correct.[66]The Claimant's contention that the Defendant discriminated against him on the grounds of race contrary to Article 14 of the European Convention is misguided and answered in paragraphs 95 to 99 of Ms Hannett’s skeleton argument.[67]I have dealt with the human rights issues shortly. No useful purpose would be served by a prolonged exposition. The primary case for the Claimant is and always has been that he was the victim of illegality and procedural unfairness judged against well-known domestic law principles.

Procedural issues in these proceedings

[68]This case has an unusual history. As I have said proceedings were issued on 29 September 2011, an Acknowledgement of Service was filed on 10 October 2011 and permission was refused on 20 October 2011. A notice of renewal of the application for permission was served and filed on 25 October 2011. On 20 December 2011 the claim was stayed so as to enable the Claimant to pursue his complaint to OIA. Following the decision of OIA the stay was discharged and the Claimant's renewed application for permission came before Nicola Davies J on 9 August 2012. The Learned Judge granted permission and directed that the claim should be heard on 21 August 2012.[69]Ordinarily, upon the grant of permission, directions would be given in relation to the filing of evidence and detailed grounds of opposition. Given the fact that the hearing was scheduled so quickly after the permission hearing, however, no such directions were made. That is hardly surprising. The result, however, is that the Defendant has filed no witness statements in these proceedings. It has, however, so it is said by counsel, disclosed all the relevant documents generated in its dispute with the Claimant.[70]Shortly before the hearing before me the Claimant made an application for permission to cross-examine a number of named witnesses who are employees of the Defendant. Kenneth Parker J refused the application but made it clear in his order that his decision might be reviewed by me, as the trial judge. At the commencement of the hearing I asked the Claimant and his litigation friend whether the Claimant intended to pursue an application to cross-examine witnesses. I was informed that he did not wish to pursue the application primarily because he wished the hearing to take place on 21 August and he realised that a successful application to cross-examine witnesses would, inevitably, mean an adjournment.[71]During the course of submissions by the litigation friend the suggestion was made that I should exclude from consideration the documents which the Defendant had disclosed since none of the documents had been authenticated. In particular, the point was made that Dr Cross had not made a witness statement with a statement of truth confirming the accuracy of her notes in relation to the meeting of 23 August 2011. Further, the copy of the letter of 5 October 2011 which appeared in the bundle was not signed by her and had not been authenticated and exhibited to a witness statement.[72]No doubt had these proceedings taken their normal course a witness statement would have been forthcoming from Dr Cross and copies of the various documents made by her would have been exhibited to that statement. I accept that this process did not occur simply because the time between the permission hearing and the substantive hearing was so truncated. In reaching my conclusion in this case, therefore, I have taken account of the documents which have been disclosed by the Defendant. In my judgment, in the context of this case, it would be unjust to take any other course.[73]The Claimant contends that on 27 February 2012 Dr Cross wrote to him, in effect, acknowledging that the Claimant should be enrolled as a student and that his withdrawal from the course should be treated as an administrative error. In his order of 17 August 2012 (which dealt primarily with the issue of cross-examination of witnesses) Kenneth Parker J directed that the Defendant should produce the original of that letter at court for inspection.[74]More or less at the outset of submissions on behalf of the Claimant the Defendant was called upon to produce the original letter. Counsel for the Defendant, on instructions, informed me that the Defendant was not in possession of the original. She told me that when the Claimant had gone to the Defendant’s premises in late February 2012 to present the letter and to seek to enrol as a student an employee of the Defendant made a photocopy of the letter but returned the original to the Claimant. That account was fiercely disputed by the Claimant. He maintained that the original of the letter was handed over to the Defendant’s employee.[75]After discussing the issues surrounding this letter with the Claimant and Counsel for the Defendant both agreed that I should disregard the letter for the purposes of this case. They were content to proceed on the basis that it was not relevant to any decision taken by the Defendant in August, September or October 2011 and both submitted that I should ignore the existence of the letter in determining whether any relief should be afforded to the Claimant assuming that his claim was otherwise successful. Given my conclusion in this case, I say no more about the letter of 27 February 2012.

Conclusion

[76]I have reached the conclusion that this claim must fail and I propose to dismiss it. The issue of relief, therefore, does not arise. As I indicated to the parties at the end of the oral hearing had I been minded to find any of the Claimant’s allegations of illegality or procedural unfairness proved I would have convened a hearing to consider, specifically, what relief, if any, was appropriate.

Cited in 2 later judgments