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

Factual and Procedural Background

This petition for judicial review concerns the Petitioner challenging decisions by the Respondent, the Scottish Public Services Ombudsman ("SPSO"), who refused to investigate the Petitioner’s complaint about the University’s handling of her academic appeal and related matters. The Petitioner was a law student enrolled in a common law LLB course at the University of Glasgow, a course distinct from the Scots law LLB. After receiving a 2:1 degree classification on 14 June 2022, the Petitioner sought advice about appealing this classification but graduated on 24 June 2022 without realizing the impact this might have on her appeal rights. The University declined to entertain her appeal post-graduation, and her formal complaint to the University was rejected at stage 2 on 23 November 2022.

The Petitioner requested the SPSO to investigate the University’s handling of her complaint on 12 December 2022. The SPSO decided not to investigate further, providing reasons in a letter dated 27 June 2023. The Petitioner sought an internal review, but on 8 December 2023, the SPSO confirmed its decision. Permission to bring this petition was granted by the Inner House of the Court of Session following a successful appeal against an initial refusal, along with an extension of time. The court considered three grounds of challenge advanced by the Petitioner.

Legal Issues Presented

1. Whether the SPSO acted irrationally in declining to investigate further the University’s refusal to allow the Petitioner to appeal her degree classification.
2. Whether the SPSO committed a jurisdictional error by misunderstanding the nature of the Petitioner’s complaint concerning alleged differential treatment between common law and Scots law LLB students, and improperly declining to investigate aspects of systemic discrimination.
3. Whether the SPSO erred in law and fact by refusing to investigate further the Petitioner’s complaint regarding the University’s failure to provide reasonable adjustments related to her mental health issues.

Arguments of the Parties

Petitioner's Arguments

• The SPSO failed to properly consider the University’s graduation team’s email and the exception in the University’s regulations allowing appeals after graduation in exceptional circumstances, rendering the decision irrational.
• The SPSO did not apply the doctrine of legitimate expectation, which the Petitioner contended entitled her to bring an academic appeal based on the University’s advice.
• The SPSO misunderstood the true nature of her complaint about systemic discrimination between common law and Scots law LLB students, wrongly excluding matters within its jurisdiction and failing to consider special circumstances to extend time limits.
• The SPSO’s refusal to investigate the failure to provide reasonable adjustments and signposting to Disability Services was an error of fact and irrational, given her mental health disclosures and the duty to make anticipatory and personal reasonable adjustments.

Respondent's Arguments

• The SPSO correctly concluded it could only provide feedback regarding the misleading email and that no legitimate expectation arose to hear the appeal post-graduation.
• The SPSO appropriately distinguished between matters of academic judgement, which it cannot investigate, and administrative matters within its remit, and reasonably found no special circumstances to extend time limits for complaints such as those relating to the European Human Rights Project.
• The SPSO’s decision was reasonable and factually supported, including the availability of information on the University’s webpages and policies regarding the Good Cause policy and Disability Services.
• The SPSO’s role is not to adjudicate on discrimination claims or breaches of the Equality Act 2010 but to assess whether the University’s response was reasonable and procedurally fair.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Padfield and Others v Minister of Agriculture, Fisheries and Food and Others [1968] AC 997	Statutory discretion must be exercised to promote the policy and objects of the empowering Act.	Used to interpret the SPSO’s discretion under the 2002 Act to investigate complaints, emphasizing public law controls on legality, rationality, and procedural fairness.
Ali Fayed v Advocate General for Scotland 2003 SLT 747	Legitimate expectation cannot arise from ultra vires acts.	Considered and rejected by the court as the University’s regulation allowed post-graduation appeals in exceptional circumstances, so the ultra vires argument was not accepted.
R (Bibi) v Newham London Borough Council [2002] 1 WLR 237	Clear and unambiguous representations can found legitimate expectations.	Distinguished from the case at hand; the University’s email did not amount to a clear and unambiguous promise of an appeal.
R (Kelly) v Financial Ombudsman Service Ltd [2017] EWHC 3581 (Admin)	Misunderstanding the true nature of a complaint can amount to jurisdictional error.	Applied to determine whether the SPSO misunderstood the Petitioner’s complaint about discrimination, leading to a jurisdictional error.
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345	Material error of law going to the root of a decision invalidates that decision.	Used to assess whether the SPSO’s error in jurisdiction was material and fundamental.
Anyanwu v South Bank Student Union [2001] 1 WLR 638	Consideration of "high public interest" in discrimination claims and procedural fairness.	Referenced regarding the SPSO’s failure to consider special circumstances to extend the time bar in a discrimination context.
O'Neill v Scottish Ministers 2022 SC 125	Continuing nature of a complaint may be relevant in extending time limits.	Applied to argue that the SPSO should have considered the ongoing pattern of discrimination in relation to time bar extension.
R (Maxwell) v Office of Independent Adjudicator for Higher Education [2011] EWCA Civ 1236	Limits on investigatory powers and judicialisation of administrative functions.	Used to clarify the SPSO’s role in reviewing complaints about reasonable adjustments and discrimination without adjudicating on substantive discrimination claims.
University of Bristol v Dr Robert Abrahart [2024] EWHC 299 (KB)	Duty to make anticipatory and personal reasonable adjustments under the Equality Act 2010.	Referenced to assess the legal standard for reasonable adjustments in the university context and the SPSO’s role in reviewing such complaints.

Court's Reasoning and Analysis

The court examined the SPSO’s decisions in light of the statutory framework under the Scottish Public Services Ombudsman Act 2002, focusing on the scope and limits of the SPSO’s investigatory powers. The court identified three main grounds of challenge.

On the first ground, the court found that the SPSO acted irrationally by failing to take into account material considerations regarding the University’s appeal regulations, particularly the exception allowing post-graduation appeals in exceptional circumstances. The University’s refusal to hear the appeal selectively quoted its regulation and did not provide the Petitioner with an opportunity to present evidence relevant to the exception. The SPSO also failed to consider procedural issues such as the 20-day period for lodging a full appeal and did not properly assess whether the misleading advice from the graduation team was inconsistent with the University’s procedures. However, the court rejected the Petitioner’s argument based on legitimate expectation, finding no clear and unambiguous representation in the University’s email.

On the second ground, the court held that the SPSO committed a jurisdictional error by misunderstanding the true nature of the Petitioner’s complaint concerning systemic discrimination between common law and Scots law LLB students. The SPSO incorrectly categorized certain complaints as matters of academic judgement, which are excluded from its remit, when they in fact raised issues of maladministration and discriminatory administrative practices. The SPSO also failed adequately to consider the possibility of extending the time limit for complaints, neglecting the continuing nature of the alleged discrimination and its public interest. This mischaracterization led to an unlawful refusal to investigate parts of the complaint.

On the third ground, the court found that the SPSO’s decision not to investigate further the complaint regarding reasonable adjustments and signposting to Disability Services was lawful, rational, and procedurally fair. The SPSO reasonably concluded that the University’s response, including the availability of information on webpages and the Good Cause policy, was adequate. The SPSO’s role is limited to reviewing the reasonableness of the University’s response rather than adjudicating on discrimination claims, and the decision fell within the range of reasonable outcomes.

Accordingly, the court granted relief on the first two grounds, finding the SPSO’s decisions unlawful and irrational in those respects, but dismissed the third ground.

Holding and Implications

The court’s final decision is to REDUCE the SPSO’s decisions dated 27 June 2023 and 8 December 2023 insofar as they relate to the refusal to investigate further the University’s refusal to hear the academic appeal and the failure to investigate alleged systemic discrimination between common law and Scots law LLB students.

The SPSO is directed to reconsider its investigatory decisions, addressing the errors identified by the court, including properly considering the University’s procedures on appeals, the exception for post-graduation appeals, the true nature of the discrimination complaint, and the possibility of extending time limits.

No order is made on other remedies sought by the Petitioner. The issue of expenses is reserved for future resolution if parties cannot agree.

The decision does not determine the substantive merits of the University’s academic decisions or discrimination allegations; it concerns only the SPSO’s investigatory powers and procedural fairness. No new legal precedent beyond the application of established principles to the facts of this case is established.