R vs. Nottingham Uni. e.p. K 1997 (original) (raw)

Queen's Bench Division
Court of Appeal

R vs. University of Nottingham ex parte K

[1998] ELR 184

HEARING DATES 5 March & 28 July 1997

Judicial review - University visitor - Exclusive jurisdiction - K failed teaching practice element of post-graduate certificate of education - Sought leave to bring judicial review - Whether visitor had exclusive jurisdiction over matter - Whether application brought promptly

HEADNOTE

K was a student on the post-graduate certificate in education (PGCE) course in the 1994/95 academic year at Nottingham University. Her course included a teaching practice element at four schools. However, on 5 July 1995 the university examination board concluded that K had failed in her teaching practice element. K appealed. On 12 January 1996 the university appeal committee rejected her appeal. It accepted that two of K's complaints had some foundation, namely that the examiners had failed to discuss sufficiently with the placement school her performance in teaching practice, and thus had failed to take some relevant considerations into account. However, it stated that it believed that the examiners would have reached the same decision had the procedural irregularities not occurred. The committee offered K the opportunity of a repeat teaching practice and assessment. Between 15 January and 31 May 1996 there was correspondence about the matter between the university and K's solicitors. In August 1996 K applied for leave to challenge the decision of the university of 12 January 1996. The university argued that: (i) it was not a matter for judicial review but was an internal matter within the jurisdiction of the university visitor; and (ii) that the application was neither prompt nor within 3 months. K argued that: (i) the Education (Teachers) Regulations 1993 provided a statutory underpinning to her case by giving the Secretary of State the power to withdraw accreditation from the university; (ii) that as an examination board must pay regard to the representations from the school, when there was a breakdown in relations between the university and the school the only remedy was judicial review. The involvement of a third party took the matter outside of the exclusive jurisdiction of the visitor; (iii) many bodies did not have visitors and visitors were an anachronism; and (iv) there was a good reason for K's delay in bringing the application, namely that she was trying to persuade the university authorities about the matter and that she was in a difficult position.

Held

Queen's Bench Division - refusing leave to appeal -

(1) The fact that the Secretary of State accredited the university pursuant to regulations and recognised as a teacher persons who had successfully completed the PGCE was not sufficient to take away the exclusive jurisdiction of the visitor.

(2) The fact that there was a partnership with a school in the training of students or in their assessment was not sufficient to prevent the exclusivity of the visitor's jurisdiction.

(3) The decision on 12 January 1996 was perfectly clear. The application had not been made promptly and was outside the 3-month time-limit.

On a renewed application for appeal by the applicant to the Court of Appeal - dismissing the application -

(1) Neither the regulations on accreditation, the supporting ministerial circular, nor the preparation of a working document in accordance with government guidance were sufficient to remove the exclusive jurisdiction of the university visitor, subject to the ultimate supervision of the courts.

(2) The sharing of responsibilities for the teacher-training part of the course did not remove from the university the final responsibility of the university's examiners. Whether the final assessment of the university's board of examiners stood was a matter for the exclusive jurisdiction of the university visitor. There was no basis for the view that the visitatorial jurisdiction in such matters had been eroded. There was no arguable basis, certainly in the circumstances of this case, for the assumption by the courts of an overlapping review before the visitor had exercised his jurisdiction.

(3) While K may have harboured hopes that she could persuade the university to fund the continuance of her course at another institution, and indeed that another institution would accept her and accept the qualification that she would take with her from Nottingham, that could in no way justify the delay that occurred in seeking to challenge the decision of January 1996. The application, more than double the outside period for such an application, was far too late and there was no satisfactory reason shown for the failure to make it promptly and within the time.

Per Simon Brown LJ: all aspects of K's complaint made it par excellence a complaint which could and should properly be heard by the university's visitor. The assessment of a student's competence and the decision whether or not to award a particular academic qualification was pre-eminently a question to be decided within the regime established within the university's own rules and regulations. One might have been prepared to exercise discretion to overcome K's difficulty resulting from her delay. There was no discretion to override the visitor's exclusive jurisdiction in cases of this kind.

Statutory provisions considered

Education (Teachers) Regulations 1993 (SI 1993/543), regs 1-3

Case referred to in judgment

Thomas v Bradford University [1987] AC 795, [1987] 2 WLR 677, [1987] 1 All ER 834, HL

COUNSEL

Usha Sood for the applicant in the High Court
The applicant appeared in person in the Court of Appeal.
Jane McNeill for the respondent

Queen's Bench Division 5 March 1997

PANEL: Popplewell J, Simon Brown, Henry and Auld LJJ

JUDGMENT BY POPPLEWELL J

This is an application for leave to challenge the decision of Nottingham University, on 12 January 1996, to uphold an exam board decision of 5 July 1995 that the applicant failed a teaching practice element of the PGCE course at Nottingham University, that is the post-graduate certificate in education.

The facts which are necessary to give sense to this decision can be very shortly stated. The applicant is a 43-year-old married woman with a master's degree in English Literature and a BA (Divinity) in London University and she enrolled on a one-year post-graduate certificate in education course at Nottingham University. The university have an arrangement with a number of schools to place, what I am going to call, students in the applicant's position to do some practical teaching. She wanted to go to a school called Retford School but there was not a partnership arrangement. She was placed in Mansfield, that gave rise to some difficulties and subsequently she was accepted at a school called Aldercar School.

The assessment of a student in the applicant's position is done between the school and the course tutors and the arrangement between them is set out in a document called 'Roles and Responsibilities' that the:

'Partner schools are responsible for providing the specific context in which students are supported in practising and developing professional skills and qualities. They will have a leading responsibility [among other things] for ... assessing student competences in subject application and classroom skills.'

It is the applicant's criticism of what happened that the school were in her favour but that the board were not. It is not necessary, for the purpose of this judgment, to set out the problems which she had in the school, nor the assessments of the various people. What happened was that in July 1995 the board came to the conclusion that the applicant had failed in her teaching practice element. That is severely criticised by the applicant for various reasons into which it is not necessary to go. She then had an appeal and that was heard on 12 January 1996. There are complaints about the way that was conducted and its conclusion.

The two points that have been raised on this application for leave do not go to the merits of the applicant's claim against the university but are first, the submission by the university that this is not a matter for judicial review but it is part of the visitatorial function to determine the applicant's position, and secondly, that given that this decision was on 12 January 1996, and there was no application for judicial review until August 1996, the application was neither prompt nor within 3 months.

It is clear from the leading authority of Thomas v Bradford University [1987] AC 795 that the internal matters of a university are reserved to a visitor. It is, however, the applicant's contention that there is a statutory underpinning in this case in that the applicant's position is governed by the Education (Teachers) Regulations 1993 that, although there is no appeal to the Secretary of State from any decision of the university, the Secretary of State has power to withdraw accreditation to the university and thereby prevent the university from awarding PGCEs.

Secondly, it is said that the exam board must pay regard to the representations from the school, even though there may not be actually a representative on the board. That being so, this is a case involving a third party, namely the school. Where there is a breakdown in relations between the university and the school the only remedy is to go by way of judicial review and that involvement of a third party takes it out of the exclusive jurisdiction of the visitors. Finally, this: there are a great many bodies which do not have visitors, that visitors are an anachronism, and that there has been a whittling away of the power of visitors. It is not for me to say whether visitors are a good thing or a bad thing or whether the courts should have more control over visitors. However, in my judgment there is nothing in this case to suggest that the exclusive jurisdiction of the visitors has in any way been eroded by any of the facts. The fact that the Secretary of State accredits the university pursuant to the regulations is, in my judgment, not sufficient to take away the exclusive right of the visitor.

Schedule 3 to those regulations provides under reg 1 and under reg 2(1)(a) that the Secretary of State will recognise that the person shall be a qualified teacher if the Secretary of State is satisfied that he or she is a person who has successfully completed the course at an institution or university in England which is for the post-graduate certificate in education. That of itself is not sufficient to prevent the exclusive jurisdiction of the visitor, nor is the fact that there is a partnership with the school in the training of the students or in their assessment. The fact that relations may have broken down because the school is supportive of this applicant, is, in my submission, not sufficient to prevent the exclusivity of the visitors.

Accordingly, in my judgment there is no answer to the submission of the respondents that I have no power to deal with this and for that reason I shall not grant leave.

There is in addition an equally difficult hurdle in relation to the time. The decision which is challenged is a decision of 12 January 1996, namely that the applicant had failed the teaching practice element. One effect of that is that she is not able to pursue her course but that is the effect and not the decision. What happened was that on 15 January 1996 the university wrote to the applicant as follows:

'With regard to the eight specific allegations of procedural irregularities which you made, the Committee agreed that there was some foundation to points vi and vii. The Committee agreed that there had been a procedural irregularity in relation to the need to discuss fully the outcome of your assessment with the placement school ... However, the Committee believed that the examiners would have reached the same fail decision had such procedural irregularity not occurred, and therefore did not set aside the original fail recommendation.

The Committee agreed that the case for denying you the normal resit opportunity had not been adequately made, and therefore agreed that you should be offered the opportunity of a repeat Teaching Practice and reassessment.

The Faculty of Education will contact you in due course with regard to the arrangements for your reassessment opportunity.'

The decision was clear: 'You have failed, you can resit and resit arrangements will be discussed with you'.

On 22 January 1996 there was another letter from the university to the applicant saying:

'I am writing further to Dr Johnson's letter ... which confirmed the decision of the Board of Examiners that you had failed the Practical Teaching component of the course, but that you should be afforded the opportunity of a repeat Teaching Practice and reassessment.

As soon as you write to me saying that you wish to repeat your Teaching Practice and be reassessed, we will put the necessary arrangements in place.'

On 3 May 1996 solicitors then acting for the applicant wrote saying they had been consulted by the applicant and, setting out their case on the facts, said:

'... we hereby give you notice that unless we hear from you within seven days of the date of this letter that the University is willing to reconsider the recording of the fail decision with an entirely differently constituted examination board, we shall, without further notice to you issue proceedings for leave to apply for Judicial Review ...'

They were then, as a matter of fact, already out of time and they then set out the reason for it. On 13 May 1996 the university write back and say they are not going to reconsider and there was some further correspondence in the course of which it appears that the university suggested that she might like to consider going to Sheffield to resit. The final letter that has any relevance in the matter is on 31 May 1996 as follows:

'In the light of the statement ... that "Our client has no intention of doing a resit at Nottingham". I conclude that our offer to her of a resit opportunity, under our regulations, even under the arrangements proposed in my last letter, is rejected. I shall report this to the Undergraduate Studies Committee, and I shall be writing to Mrs K informing her that we have therefore no option but to terminate her course formally.'

The letter about Sheffield University is on 24 June 1996 and on 17 June 1996 the university wrote to the solicitors:

'I have I hope indicated to you in previous correspondence that Mrs [K's] status must sooner or later be clarified, and that in the light of your previous letter in which you state that she will not undertake a resit under the auspices of this University, we must therefore take steps to record that she is no longer a registered student of this University.'

It is submitted, on her behalf, that there was a good reason for the delay in that she was trying to persuade the authorities about the matter and that she was in a difficult position. However, it is perfectly clear that the decision of January 1996 that she failed meant if she did not resit, that the course would have to be terminated. The termination of the course is not, in my judgment, relevant at all. The time that has to be considered is January 1996 when the board decided that she had failed her teaching practice. No steps were taken for months.

In my judgment the application is therefore not merely not made promptly but is outside the 3-month limit and for that reason also if I were to give leave this application would be doomed. Accordingly, I shall not give leave.

Court of Appeal 28 July 1997

JUDGMENT BY AULD LJ

Mrs K renews an application for leave to challenge by way ofjudicial review a decision of the University of Nottingham that she has failed part of a one-year post-graduate teacher training course. The course, which she began in September 1994, would have resulted, if all had gone well for her, in the award of the post-graduate certificate of education in the summer of 1995.

The course included periods of practical teaching experience in schools with which the University had made arrangements for the purpose. They have been called 'partnership schools'. The school or schools with which a student teacher undertook teaching practice contributed to the university's assessment of his or her performance in determining success or failure in the course. Inevitably, the schools' chief contribution concerned the student's performance in the classroom during the periods of teaching practice. The university has a full and detailed document called 'A Partnership', describing the course, its objects and its system in great detail. The members of the partnership, so described, are the university, the schools with which it has arrangements for placements for teaching practice and the student teachers themselves. The document provides in a section headed 'Roles and Responsibilities', the content and organisation of the course. As to assessment of the student's performance, it provides in para 19 that:

'Partner Schools are responsible for providing the specific context in which students are supported in practising and developing professional skills and qualities.'

It continues:

'They will have a leading responsibility for:

There is then a note to that paragraph which reads:

'The word "leading" is not meant to imply total responsibility. School of Education method tutors will also be involved in the training aspects listed. The input of both will be important, and will vary during the course.'

In the preceding paragraph, para 18, there is a reference to the involvement of the schools in ensuring that student competencies are assessed and in the awarding of the qualifications to successful students as part of that partnership.

During the academic year the applicant undertook teaching practice at three schools. The first appears to have gone reasonably well, but she experienced difficulties in the second and, to a lesser extent, in the third. She made a number of complaints about one of the schools, mainly of racism and discriminatory behaviour, and about the university and other staff involved in her training, mainly that they gave her inadequate support.

The university examination board determined in July 1995 that she had failed the teaching practice element of the course and thus had not qualified for the certificate of education.

At the applicant's request the university agreed to extend or defer the completion of her course into the autumn of 1995 to enable her to undertake a further period of teaching practice at a fourth school. So far as the applicant and the school are concerned, that period of practice seems to have been satisfactory, but the university, through her tutors and others who observed and otherwise appraised her performance, took a different view. In November 1995 the university informed her that she had failed and that the Board of the Faculty of Education had recommended that her course be terminated. It added that that recommendation would be automatically confirmed unless she requested a hearing by a body called the Board of Undergraduate Studies.

The applicant sought a hearing, making eight specific complaints about the university's treatment of her. These included allegations of improper conduct by her tutor and an external examiner and of failure by the examiners to consider all relevant matters and to consult fully with the placement school when making their assessment.

On 12 January 1996 the university's Undergraduate's Studies Committee, chaired by Professor D. J. Birch of the Law School, conducted an oral inquiry into the applicant's complaints. I should note the limited powers of that body. It could not substitute a pass for a fail decision, save in limited circumstances, but it could determine whether or not to confirm the decision to terminate the course and, in the latter event, whether the student should be allowed to resit some or all of the course constituents.

The committee concluded that two of the applicant's complaints had some foundation, namely that the examiners had failed to discuss sufficiently with the placement school her performance in teaching practice, and thus had failed to take some relevant considerations into account in reaching their decision. However, the committee expressed a belief that the examiners would still have failed the applicant if they had followed the procedures properly in those respects. Nevertheless, it considered that her course should not be automatically terminated, as had been indicated by the university, and that she should be offered the opportunity of a further period of teaching practice and assessment.

By letter of 15 January 1996, 3 days later, the university communicated that decision to the applicant, stating that it would contact her in due course to make arrangements. It appears that there was some discussion between Professor Birch and the applicant after the committee had sat, in which, according to the applicant, Professor Birch had suggested that more than just two of her criticisms had been regarded as having some foundation and that the university might consider the funding of a 'resit' by the applicant of her course at some other university. However, the decision communicated to the applicant in the letter of 15 January 1996 was simply that she should be allowed to 'resit' her course at the university.

The university wrote again a week later, on 22 January 1996, to the applicant, inviting her to indicate whether she wished to undertake further teaching practice and reassessment and offering to arrange it. The applicant did not reply to that letter. It does appear, however, from what she has told us this morning that there was some other correspondence passing between her and the university over the next few months in which she pressed the university to change its mind and find that she had passed, or, alternatively, to fund a resit of the teaching practice part of the course at another university.

The next indication of the applicant's intention in relation to the university's offer that she could resit the teaching practice part of its course came in the form of a solicitor's letter over 3 months later, of 3 May 1996. It notified the university of her intention to seek judicial review of the decision of 12 January 1996 upholding the decision of the examiners that she had failed the course.

There was, it seems, further correspondence in which the university expressed its continuing willingness to allow the applicant to retake the teaching practice part of the course and in which the applicant's solicitors indicated her unwillingness to do so. As a result, the university, by a letter of 17 June 1996, informed the applicant's solicitors that it had recorded that she had failed her course and had not accepted its offer to permit her to repeat the practical teaching part of it. It should be noted that it did not terminate her course or her entitlement to redo the teaching part of it.

The applicant has not sought to invoke the visitatorial jurisdiction provided by the university. She has made no approach to the visitor to challenge the treatment of her complaints by the committee in January 1996. This application for leave to move for judicial review, which is in respect of the decision of 12 January 1996, was not made until August 1996, that is to say over 6 months after the event.

The applicant has appeared in person this morning to support her application, and we have also had the benefit of a full written application for leave in amended form and a skeleton argument provided by her former counsel.

The first matter, putting aside the merits with which the applicant has to deal, is whether this court has jurisdiction to deal with her complaint or whether it is properly a matter for the exclusive jurisdiction, in the first instance, of the university visitor. The well-established rule is that the domestic affairs of a university, including the decisions of its examiners, are matters for resolution by the university, subject to review, in the first instance, by its visitor, and not for this court.

The leading authority for that well-established principle, which appears in a number of others, is Thomas v Bradford University [1987] 1 AC 795. It is for the visitor to determine complaints of this sort where the dispute relates to the correct interpretation and fair administration of the domestic law of a university through its statutes and ordinances and other instruments by which it guides its conduct.

The applicant maintains that in the circumstances of this case the visitor does not have that jurisdiction. She submits that the court should accept jurisdiction for three main reasons. The first is that there is, she maintains, a statutory intrusion into the university's role in the provision of teacher training and certification of teachers by virtue of the provisions of the Education Teachers Regulations 1993 and a supporting ministerial circular enabling the minister to withdraw accreditation of an institution for such training and certification if the institution does not abide by the procedures indicated by the minister as being appropriate for it.

Secondly, the applicant maintains that the statutory scheme as interpreted by the university in the partnership document, to which I have referred, envisages an involvement of others (the placement schools) in the organisation of courses and in the assessment of student performance. Indeed, she maintains, as the document itself indicates, there are three parties involved - the university, the schools and the student teacher herself - in the assessment process. Accordingly, she maintains that the decision is not solely that of the university and review of it is not a matter for its exclusive visitatorial jurisdiction.

Thirdly, the applicant maintains, through the arguments submitted by her former counsel in the written skeleton argument, that recent authorities indicate that the courts may intervene where there has been unfairness by a university in allowing non-academic considerations to intrude on an academic evaluation or where the decision-making is procedurally improper.

As to the first of those contentions, that of statutory intrusion or underpinning, I agree with Popplewell J that the accreditation of the university for the conduct of such a course pursuant to the 1993 regulations and its preparation of a working document in accordance with government guidance are not sufficient to remove the exclusive jurisdiction of the university visitor, subject, of course, to the ultimate supervision of this court. It is not sufficient to enable this court to intrude in the university's decision-making process in connection with its own affairs, in particular its assessment of its students. Neither the regulations nor the ministerial circular, to which I have referred, arguably qualifies the university's exclusive role through its visitor in that respect.

As to the sharing of responsibilities for the teacher-training part of the course (described in paras 18 and 19 of the partnership document), it does not, in my view, remove from the university the final responsibility of the university's examiners, as provided in para 53 of the document, which reads:

'The final decision on student assessment is made by the Board of Examiners, which will if necessary take into account the differences between schools in awarding a pass. Assessment is on a pass/fail basis only.'

Whether the final assessment in this case stands, as I have said, is a matter for the exclusive jurisdiction of the university visitor, to the extent that he can properly intervene.

As to the suggestion of recent erosion of the visitatorial jurisdiction in such matters, there is, as I read the authorities, no basis for it. The exclusive visitatorial jurisdiction, certainly over academic decisions and the proper application of university procedures in reaching them, is alive and well. In my view, there is no arguable basis, certainly in the circumstances of this case, for the assumption by the courts of an overlapping review before the visitor has exercised his jurisdiction.

On the ground of jurisdiction alone I would therefore refuse this application.

There is, in any event, the matter of the applicant's delay in seeking relief by way of judicial review. The decision under challenge is that of the University Committee of 12 January 1996 upholding the decision of the university's examiners that the applicant had failed her course. As I have said, a further 6 months went by before she made this application. She has sought to explain that delay by reference to her attempts after January 1996 to persuade the university to finance her completion of the teaching part of the course at another institution. However, as Popplewell J observed in refusing leave, a clear and firm decision was made and communicated to the applicant in January 1996 that she had failed but that she could retake the teaching practice part of her course at the university if she wished. She took well over 3 months before communicating, via her solicitor's letter of 3 May 1996, that it was a reversal of the decision of failure or nothing that she would accept, and then a further 3 months or so before she made this application.

Whilst it may be that the applicant harboured hopes that she could persuade the university to fund the continuance of her course at another institution, and indeed that another institution would accept her and accept the qualifications that she would take with her from Nottingham, that can in no way justify the delay that occurred here in seeking to challenge the decision of January 1996.

In my view, the application, more than double the outside period permitted for such an application, was far too late, and there is no satisfactory reason shown for the failure to make it promptly and within the time. For that reason also I would refuse this application.

JUDGMENT BY HENRY LJ

I agree.

JUDGMENT BY SIMON BROWN LJ

Nobody who has listened to the applicant plead her own cause before the court today could fail to be struck by the depth of the resentment she so evidently feels about the way the University of Nottingham has treated her in recent times. Clearly she should be able to have her grievance fully heard and, if it were to prove well-founded on the facts, to have it remedied. The sole question before us today, however, is by what body should it be heard, and, more particularly, is she entitled to have it adjudicated on within the scope of an application for judicial review?

I have to say that there seems to me no room whatever for doubt on this central and fundamental question. All aspects of the applicant's complaint here make it, in my judgment, par excellence a complaint which can, and therefore can only properly, be heard by the university's visitor. The assessment of a student's competence and the decision whether or not to award a particular academic qualification, here a post-graduate certificate in education, is pre-eminently a question to be decided within the regime established by the university's own rules and regulations. True, partner schools here were to have a leading responsibility for assessing the important practical aspect of the student's teaching skills. True too, the Department of Education is interested, no doubt vitally interested, in the proper administration of this aspect of educational training, but, as my Lord has explained and as the judge below held, these considerations do not begin to take this case out of the long-established principle that the visitor has not only jurisdiction, but indeed exclusive jurisdiction, in cases of this kind.

That view is sufficient to dispose of this application, and that indeed is the ground upon which I, for my part, would reject this application for leave. That is not, however, to say that I disagree with what my Lord has said also on the issue of delay; it is only that delay, as it seems to me, is here an altogether less clear, compelling and indeed decisive basis for refusing leave. One might have been prepared to exercise discretion to overcome the applicant's difficulty resulting from her delay. There is no discretion to override the visitor's exclusive jurisdiction in cases of this kind. The application must, accordingly, be dismissed.

DISPOSITION

Application dismissed.

SOLICITORS

French & Co for the applicant
Lawford & Co for the respondent

DOMINIC MCGOLDRICK BARRISTER

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