Redefining Ombudsman Jurisdiction over Academic Discrimination Complaints

Introduction

The judgment, AB against the Scottish Public Services Ombudsman (Court of Session) [2025] CSIH 8, delivered on 11 March 2025 by the Scottish Court of Session, marks a significant development in the oversight of complaints in the higher education context. The case involves AB, a former law student of the University of Glasgow, who challenged both the university’s decision to deny her an appeal for her degree classification and the subsequent decision by the Scottish Public Services Ombudsman (SPSO) not to investigate her complaints.

The petitioner, having raised grievances on the grounds of alleged discrimination between common law and Scots Law students, as well as failing to provide adequate reasonable adjustments for her mental health issues, contended that the university’s decision and the SPSO’s treatment of her complaints were flawed. AB argued that the characterisation of her complaints by the Ombudsman — which dismissed issues of discrimination as matters solely of academic judgment, time-bar considerations, and isolated academic appeal promises — did not accurately reflect the substance of her claims.

Central to the case are questions regarding (i) whether the SPSO mischaracterised complaints that were essentially about alleged discrimination, (ii) whether there was an error in not investigating the potential breach of statutory duties under the Equality Act 2010, and (iii) whether the promised academic appeal created a legitimate expectation that should have been protected. These issues not only challenge the boundaries of academic judgment but also test the scope of the SPSO’s investigatory powers.

Summary of the Judgment

The Court of Session granted permission for the petitioner’s reclaiming motion, thereby allowing the judicial review to proceed. In its reasoning, the court highlighted several key points:

The court accepted that the initial decision by the Lord Ordinary, which had not granted permission for the petition, had overlooked the material mischaracterisation of parts of the petitioner’s complaint. Specifically, her assertions concerning discrimination against common law students were not adequately addressed because they had been erroneously treated as mere academic judgments.
It was determined that the alleged discrimination issues raised—particularly regarding the European Human Rights Project and the courses in Commercial Law and Advanced Property and Trusts—could indeed be investigated by the Ombudsman. The court underscored that if a complaint frames an issue of discrimination, it escapes the limitations normally imposed on matters of academic judgment.
On the matter of the 12-month time-bar, the court held that evidence of alleged discrimination might constitute a ‘special circumstance’. This could justify an allowance for a late complaint, thereby challenging the respondent’s rigid application of the time limit.
The court was less persuaded on the grounds relating to the failure to investigate issues of medical support and reasonable adjustments as well as the alleged failure concerning an academic appeal. However, in the context of the overall complaint, the petitioner’s interconnected grievances provided sufficient substance to meet the threshold for judicial review.

In conclusion, the court remitted the case back, granting an extension to allow the petition to proceed and effectively opening the door for further judicial scrutiny of the Ombudsman’s decisions.

Analysis

Precedents Cited

The judgment drew upon several seminal cases and statutory principles:

Argyll and Bute Council v Scottish Public Services Ombudsman [2008] SC 155: This case was referenced to illustrate the boundaries within which the Ombudsman operates, particularly concerning the investigation of complaints that might involve exercising academic judgment. It supported the view that not every grievance against a university’s academic decisions is amenable to investigation by the Ombudsman.
Anyanwu v South Bank Student Union [2001] 1 WLR 638: This case was drawn upon when discussing whether grievances related to academic practices were automatically exempt from review by an external investigative body. Its principles were invoked to argue that allegations of discrimination should not necessarily be subsumed under academic judgment.
University of Bristol v Abrahart [2024] EWHC 299 (KB): This more recent decision provided insights into the proactive duties of an educational institution under the Equality Act 2010. Its application in the present judgment underscores the expectation that universities must make reasonable adjustments and actively identify the needs of disabled students.
R (Bibi) v Newham London Borough Council (No 1) [2002] 1 WLR 237: Cited in relation to the principle of legitimate expectation, this case clarifies that a promise or representation by an authority must be upheld if it induces a reliance that causes a detriment. The petitioner’s claim regarding the academic appeal was examined under this lens, although the court found the reliance arguably insufficient.

Legal Reasoning

The court’s decision revolved primarily around the characterization of the petitioner’s complaints. The pivotal reasoning was that:

The Ombudsman’s characterization of complaints regarding the European Human Rights Project and course grading as matters solely involving academic judgment was a misinterpretation, as these issues directly raised accusations of discrimination. The court observed that when a complaint fundamentally challenges alleged differential treatment (in this case, between common law and Scots Law students), it should be open for investigation rather than being dismissed under the guise of academic discretion.
On the subject of the time-bar, the court held that discrimination allegations could possibly justify exceptions to the 12-month limit. It was critiqued that the Ombudsman’s failure to take into account any ‘special circumstances’—particularly those bearing on the alleged discrimination—amounted to an oversight. This point is legally significant as it repositions how time constraints are applied when underlying issues of statutory equality and fairness are contended.
While the petitioner argued that there was a legitimate expectation of an academic appeal, the court pointed out that such an expectation must not only be clearly articulated but must also involve demonstrable detrimental reliance. The distinction between an implied promise and an actionable legitimate expectation remains a subtle yet crucial element in administrative law, as showcased here.
Importantly, the court made clear that the Ombudsman's jurisdiction is not unlimited. However, where a complaint touches upon the statutory duty of a university under the Equality Act 2010, or when discrimination is at issue, the respondent’s discretion to dismiss these grievances as matters of academic judgment is, at best, contestable.

Impact on Future Cases and Legal Practice

The implications of this judgment are wide-ranging:

Redefinition of Ombudsman Jurisdiction: The decision sets a precedent that when discrimination claims are part of a broader academic grievance, they must not be summarily dismissed as mere academic judgment. Future cases may increasingly challenge the boundaries of what constitutes an investigable complaint by entities like the SPSO.
Enhanced Scrutiny of University Practices: Universities may now need to be more proactive in demonstrating compliance with statutory duties, particularly regarding the provision of reasonable adjustments and ensuring non-discriminatory conduct in academic settings.
Legitimate Expectation and Administrative Promises: The court’s nuanced treatment of the legitimate expectation claim—despite ultimately not finding sufficient detrimental reliance—signals that clearer, more explicit representations by academic institutions may be required if they are to have binding legal consequences.
Procedural Flexibility in Time-Bars: The judgment suggests that rigid application of procedural deadlines, such as the 12-month time limit, might be re-evaluated in circumstances where underlying issues of discrimination arise. This could lead to more flexible approaches in handling late complaints.

Complex Legal Concepts Simplified

To ensure clarity, several complex legal concepts featured in the judgment are explained below:

Academic Judgment: Decisions related to course content, student evaluations, and academic policies often fall under an institution’s academic judgment. The court emphasized that while many academic decisions are beyond the scope of external review, allegations of discrimination must be examined on their own merits.
Legitimate Expectation: This principle entails that if an institution makes an explicit or implicit promise, an individual may reasonably rely on that promise to their detriment. However, such reliance must be clear, concrete, and demonstrably linked to a subsequent loss or harm.
Special Circumstances: Normally, a complaint must be lodged within a designated period (12 months, in this case). However, if there are ‘special circumstances’—for example, revelations of discrimination that were not immediately apparent—exceptional flexibility may be warranted.
Jurisdiction of the Ombudsman: The role of the Ombudsman typically excludes purely academic matters. Nonetheless, when discrimination or statutory duty issues are interwoven with academic decisions, the jurisdiction of the Ombudsman may extend to review such complaints.

Conclusion

In summary, the Court of Session’s decision in AB against the Scottish Public Services Ombudsman establishes a key precedent by delineating that not all grievances concerning university academic decision-making can be dismissed as matters of academic judgment, particularly when allegations of discrimination are present.

The ruling emphasizes the need for a careful, context-specific approach in investigating complaints that involve statutory duties, such as those under the Equality Act 2010, and challenges the strict application of procedural time-bars when special circumstances exist. By holding that the Ombudsman may have erred in mischaracterizing and thereby limiting the scope of the petitioner’s grievance, the judgment not only reinforces the rights of students in higher education but also signals broader implications for administrative oversight in academic settings.

The case will likely influence future litigation by encouraging more robust investigations into claims of academic discrimination, and universities may be prompted to review their communications and procedures to ensure that they meet both statutory requirements and the legitimate expectations of their students. This decision, therefore, represents an important evolution in the interplay between academic discretion and administrative accountability.

Key Takeaway: The judgment is a landmark in clarifying that when discrimination claims arise in the context of academic decisions, procedural limitations should be reconsidered, and such complaints must be given due investigative scrutiny under the ambit of administrative law.