R (on the application of Alexander) v Office of the Independent Adjudicator for Higher Education
Mr Alexander sought permission to appeal against an order refusing him permission to apply for judicial review of a decision of the OIA.
Mr Mark Alexander sought permission to appeal against an order from the Administrative Court (dated of 11 June 2014) refusing him permission to apply for judicial review of a decision of the Office of the Independent Adjudicator for Higher Education (OIA).
Mr Alexander was studying law at King's College London (KCL) and was due to sit his final exams in May 2010. In February 2010, he was arrested in relation to his father's death and was subsequently convicted of murder and sentenced to life imprisonment in September 2010. While on bail, KCL asked Mr Alexander whether he wished to sit his planned final exams in 2010. Mr Alexander replied that he wished to defer his final exam until the following year. Some eight months later in October 2010, KCL replied by informing the applicant that it had terminated his registration in accordance with its regulations on the basis that KCL was not able to provide distance learning and his place was not sustainable due to his detention. After making representations, Mr Alexander was informed by KCL that the latter stood by its decision. KCL explained that he was ineligible to continue his studies and, he not having been provided with appropriate teaching support, it was KCL's academic judgment that he would be put at substantial disadvantage relative to other students and it would not be fair to him.
Subsequently, Mr Alexander complained to the OIA. In August 2012, the OIA stated that it did not hold the complaint justified as it found that KCL had acted fairly and reasonably. On 5 March 2013, Mr Alexander applied for judicial review of the decision of the OIA which was refused on the papers. He then renewed his application at an oral hearing but it was held that he had not established arguable grounds for judicial review of the OIA's decision.
The issue before Lord Justice Kitchin was whether or not Mr Alexander has a proper basis for complaining about the decision of the OIA.
First, regarding Mr Alexander's registration termination by KCL, the judge did not find arguable grounds for judicial review as Mr Alexander had failed to persuade the court that OIA had fallen into error in determining that KCL had acted reasonably and in accordance with its own regulations.
Second, in relation to a breach of Article 2 of the Convention, the judge stated that there is no arguable breach as Article 2 does not confer an unfettered and unlimited right to higher education.
Lastly, Mr Alexander submitted that the OIA could not deal properly with his complaint due to deficiencies in the statutory scheme. The judge held that this point was unlikely to be successful in judicial review as it is not possible for the court to go behind the provisions of the statutory scheme in force at the time.
As a result Lord Justice Kitchin was satisfied that Mr Alexander did not show arguable grounds for judicial review of the decision of the OIA and accordingly Mr Alexander's application was refused.