AB against the Scottish Public Services Ombudsman (Court of Session)

Factual and Procedural Background

The Plaintiff was a law student at The University on a common law degree programme. After graduating, the Plaintiff sought to appeal her degree classification. The University advised the Plaintiff to return her degree parchment to enable an appeal and that she could re-enrol to graduate after the appeal. The Plaintiff returned the parchment and lodged an appeal. However, shortly thereafter, the University informed the Plaintiff that under University Regulation 26.3.7 she could not appeal because she had already graduated, and returned her parchment.

The Plaintiff complained to the University about the denial of an appeal, asserting that she should be afforded one. The appeal concerned grades in two subjects and alleged failure by the University to provide information or make reasonable adjustments for a disability related to mental health issues. The Plaintiff also alleged discrimination against students on the common law programme compared to those on the Scots Law programme in relation to course operation, selection for a project, and grading and staff interaction.

The University maintained that the regulations were clear and that the Plaintiff no longer had a right to appeal after graduation. It also denied discrimination and contended that reasonable adjustments had been made, including extensions for coursework.

The Plaintiff then complained to the Defendant, the Scottish Public Services Ombudsman, alleging maladministration by the University. The Defendant initially decided not to investigate further, finding the University's actions reasonable and some complaints time-barred. The Plaintiff requested a review, but the Defendant upheld the original decision.

The Plaintiff brought a petition for judicial review challenging the Defendant's decisions of 27 June 2023 and 8 December 2023.

Legal Issues Presented

1. Whether the Defendant erred in law by mischaracterising the Plaintiff's complaints about alleged discrimination and thereby failing to investigate matters that were not excluded as academic judgement.
2. Whether the Defendant erred in law by failing to investigate alleged breaches of statutory duties under the Equality Act 2010 concerning reasonable adjustments for disability.
3. Whether the Defendant erred in law in deciding not to investigate the complaint about non-provision of an academic appeal, particularly in relation to the Plaintiff's alleged legitimate expectation and new information about reasonable adjustments.

Arguments of the Parties

Appellant's Arguments

• The Defendant mischaracterised complaints relating to discrimination as mere academic judgement, which led to an improper refusal to investigate.
• The alleged discrimination constituted a special circumstance that should have allowed a late complaint to be accepted and investigated.
• The Defendant failed to properly investigate the University's statutory duty under the Equality Act 2010 to proactively identify the Plaintiff's needs and make reasonable adjustments.
• The Plaintiff had a legitimate expectation of an academic appeal, and the Defendant erred in law by not recognising this and the significance of new information about reasonable adjustments.

Respondent's Arguments

• The Defendant’s decision not to investigate was a lawful exercise of discretion, supported by the University regulations and the nature of the complaints.
• The Defendant is not a court of law and the Plaintiff has other remedies, including judicial review of the University’s refusal to grant an appeal and litigation concerning Equality Act breaches.
• The time-bar decision was correct; no special circumstances justified a late complaint, and the complaints about selection and grading involved academic judgement.
• The Defendant reasonably treated the complaints as falling within the scope of academic judgement, and the discrimination complaint had expanded beyond the original scope.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Argyll and Bute Council v Scottish Public Services Ombudsman 2008 SC 155	Clarification of the scope of the Ombudsman's jurisdiction and the nature of complaints that may be investigated.	Referenced to support the argument that discrimination complaints are not excluded as academic judgement and fall within the Defendant's investigatory powers.
Anyanwu v South Bank Student Union [2001] 1 WLR 638	Consideration of discrimination and procedural fairness in complaints handling.	Used to support the contention that discrimination allegations should be properly investigated by the Defendant.
University of Bristol v Abrahart [2024] EWHC 299 (KB)	Establishing the proactive duties of educational institutions under the Equality Act 2010.	Relied upon to argue that the University had statutory duties to identify disability needs and make reasonable adjustments.
R (Bibi) v Newham London Borough Council (No 1) [2002] 1 WLR 237	Principles of legitimate expectation and detrimental reliance in administrative law.	Invoked to argue that the Plaintiff had a legitimate expectation of an appeal and that the Defendant erred in not recognising this.
PA v Secretary of State for the Home Department 2020 SC 515	Standard for granting permission to proceed with judicial review (real prospect of success).	Guided the court's de novo review of whether permission should be granted to the Plaintiff.
Wightman v Advocate General for Scotland 2018 SC 388	Clarification of the threshold for permission to proceed in judicial review cases.	Applied to assess whether the Plaintiff's grounds had a point of substance to be argued.
Kelly v Financial Ombudsman Service Ltd [2017] EWHC 3581 (Admin), [2018] CTLC 107	Requirement to fairly characterise complaints and consider their substance.	Supported the conclusion that the Defendant mischaracterised the Plaintiff's complaint by failing to consider the discrimination aspect properly.
R (Maxwell) v Office of the Independent Adjudicator [2011] EWCA Civ 1236; [2012] PTSR 884	Distinction between matters suitable for investigation and those better left to courts.	Referenced to explain that the Defendant did not simply decline investigation because courts were better placed, but mischaracterised the complaint.

Court's Reasoning and Analysis

The court reviewed the decision of the lower court and the Defendant's refusal to investigate the Plaintiff's complaints further. It applied the legal standard for permission to proceed with judicial review, which requires a real prospect of success or a point of substance to be argued.

The court acknowledged that the Plaintiff was a party litigant and allowed some latitude in interpreting her pleadings. It found that the Defendant had mischaracterised significant parts of the Plaintiff's complaint by treating allegations of discrimination as matters of academic judgement, which are excluded from the Defendant's jurisdiction. The court held that discrimination allegations fall within the Defendant's investigatory powers and are not excluded.

Regarding the time-bar issue, the court found that the alleged discrimination could constitute a special circumstance justifying acceptance of a late complaint. The Defendant had failed to provide satisfactory reasoning for dismissing this point and incorrectly asserted lack of jurisdiction based on academic judgement when discriminatory selection was alleged.

The court expressed skepticism about the prospects of success on grounds relating to the medical and reasonable adjustment complaints and the academic appeal issue, noting difficulties such as lack of detrimental reliance. However, these matters were not determinative given the strength of other grounds.

On balance, the court concluded that the Plaintiff met the threshold for permission to proceed, given the real prospect of establishing that the Defendant erred in law by mischaracterising the complaint and improperly refusing investigation.

Holding and Implications

The court allowed the reclaiming motion, recalled the interlocutor refusing permission, and granted permission for the petition to proceed.

The court also granted an extension of the time limit for bringing the petition, as was not disputed by the parties. The direct effect is that the Plaintiff may proceed with judicial review of the Defendant's decisions. No new precedent was established beyond the application of existing legal principles to the facts of this case.