“Beyond Academic Judgment” – Court of Session Clarifies the SPSO’s Duty to Investigate University Maladministration and Systemic Discrimination

1. Introduction

AB v The Scottish Public Services Ombudsman ([2025] CSOH 48) represents the first detailed judicial examination of the Scottish Public Services Ombudsman’s (“SPSO”) duty to investigate complaints arising from higher-education settings where academic judgement, administrative process, time-bar and alleged discrimination intersect.

The petitioner (“AB”), a Common Law LLB graduate of the University of Glasgow, challenged two SPSO decisions which refused any further investigation of her multifaceted complaint against the University. The complaint concerned:

Refusal of an academic appeal against her degree classification;
Alleged systemic discrimination between Common Law LLB and Scots Law LLB students; and
Failure to provide reasonable adjustments linked to mental-health difficulties.

Lady Poole held that the SPSO’s decisions were unlawful on two grounds—irrationality and jurisdictional error—requiring their reduction. The ruling supplies authoritative guidance on:

The boundary between academic judgment (outside SPSO remit) and maladministration (within remit);
How the SPSO must characterise and dissect complex, potentially systemic discrimination complaints; and
The approach to the 12-month statutory time-bar where the complaint alleges a continuing discriminatory pattern.

2. Summary of the Judgment

After surveying the Scottish Public Services Ombudsman Act 2002 (“the 2002 Act”), Lady Poole concluded:

Ground 1 – Irrationality:
The SPSO’s refusal to investigate the University’s rejection of AB’s academic appeal overlooked three material considerations: (i) misapplication of Regulation 26.3.7’s “exceptional circumstances” clause, (ii) interplay with the University’s 20-day appeal timetable, and (iii) the contradictory advice given by the Graduation Team. Consequently, the decision was irrational.
Ground 2 – Jurisdictional Error:
By treating large parts of AB’s discrimination complaint as “academic judgment” or time-barred, the SPSO misconstrued its jurisdiction and failed to address alleged maladministration inherent in selection procedures, course delivery and information provision. This was a material error of law.
Ground 3 – Reasonable Adjustments:
The challenge failed; the SPSO’s view that the University’s disability-support response was reasonable lay within its discretionary range.

Accordingly, the Court reduced the SPSO’s decisions of 27 June 2023 and 9 December 2023, directing the Ombudsman to reconsider AB’s complaint lawfully.

3. Analysis

3.1 Precedents Cited and Their Influence

Padfield v Minister of Agriculture [1968] AC 997 – provides the orthodox principle that statutory discretion must promote the legislative purpose. Lady Poole invoked Padfield when concluding that the SPSO’s discretion under s.2 must be exercised so that public-funded bodies remain accountable for maladministration.
Wordie Property Co Ltd v Secretary of State for Scotland (1984) SLT 345 – authority for quashing decisions tainted by material error of law; applied to the Ombudsman’s misclassification of the complaint.
R (Kelly) v Financial Ombudsman Service [2017] EWHC 3581 – emphasises that an ombudsman must accurately identify the real complaint before deciding jurisdiction; directly analogous.
R (Maxwell) v OIA [2011] EWCA Civ 1236 – cited to affirm that the SPSO is not a substitute tribunal to decide Equality Act claims but must still check for maladministration.
Anyanwu v South Bank Student Union [2001] 1 WLR 638 – referenced regarding the “high public interest” in discrimination allegations; supported a possible extension of time-bar.
Additional cases: Ali Fayed (legitimate expectation and ultra vires), Bibi (clear representation requirement) and University of Bristol v Abrahart (scope of anticipatory reasonable-adjustment duty) shaped the court’s treatment of Grounds 1 and 3.

3.2 Legal Reasoning

Lady Poole’s reasoning unfolds in three linked stages:

Statutory Interpretation: The 2002 Act deliberately lists universities as bodies subject to Ombudsman oversight except for “academic judgment”. Parliament’s intention would be frustrated if the SPSO refused to engage with administrative discrimination merely because academic issues lurk in the background.
Issue Characterisation: Breaking AB’s narrative into discrete “issues” obscured the overarching theme of systemic discrimination. The Ombudsman must identify the “true nature” of a complaint (Kelly) before applying exclusions.
Material Considerations and Rationality: Failure to examine the Regulation 26.3.7 exception, the University’s conflicting advice, and continuing-act implications rendered the SPSO’s decisions unreasonable in the Wednesbury sense.

3.3 Likely Impact

On the SPSO: The ruling tightens procedural expectations. Investigators must (i) distinguish clearly between academic and administrative elements, (ii) address systemic discrimination allegations head-on, and (iii) record how time-bar discretion is exercised.
On Higher-Education Institutions: Universities should expect greater ombudsman scrutiny of selection processes, course management and complaint handling—particularly where novel programmes create disparate experiences.
On Complainants: Students alleging maladministration now have persuasive authority that “mixed” complaints (academic + administrative) fall, at least partly, within SPSO jurisdiction. Tactical use of the Ombudsman route may precede or substitute litigation.
On Scottish Administrative Law: The judgment clarifies the “academic judgment” carve-out—aligning Scotland with English Court of Appeal thinking in Maxwell, while adding a distinct focus on systemic discrimination and continuing-act time-bar.

4. Complex Concepts Simplified

Maladministration – mishandling of administrative processes (e.g., ignoring rules, delay, bias) by public bodies.
Academic Judgment – expert academic decisions (e.g., marking, curriculum content) shielded from Ombudsman review.
Irrationality (Wednesbury) – a decision so unreasonable that no reasonable authority could have made it.
Jurisdictional Error – when a body misunderstands or exceeds its legal powers; here, misidentifying a discrimination claim as outside remit.
Legitimate Expectation – a promise or consistent practice giving an individual a procedural/substantive entitlement, enforceable if clear, unambiguous, and within the decision-maker’s powers.
Reduction – Scottish remedy equivalent to quashing; the impugned decision is set aside.
Time-bar & “Special Circumstances” – SPSO complaints normally must be lodged within 12 months; continuing wrongs or issues of public interest may justify an extension.

5. Conclusion

AB v SPSO is more than a win for one graduate; it is a blueprint for future Ombudsman-university engagements. The Court of Session has:

Reaffirmed that not every university decision is “academic judgment”; administrative discrimination and procedural fairness sit firmly within SPSO oversight.
Confirmed that the Ombudsman must grapple with systemic or continuing-act allegations when applying time-bar.
Clarified investigative standards: material considerations must be addressed; reasons must be intelligible; and the overarching legislative purpose—public accountability—cannot be side-stepped.

Going forward, the SPSO must recalibrate its methodologies, universities should audit their course-management practices for latent inequities, and students possess a clearer roadmap for seeking redress. “Beyond Academic Judgment” is likely to be cited whenever the Ombudsman (or analogous bodies) face the temptation to erect jurisdictional defences against complaints that blend scholarly discretion with administrative fairness.