Burger v Office of the Independent Adjudicator for Higher Education  EWHC 172 (Admin); (2013) PLLR 035
Education - Local remedies - Assessment Criteria
The Independent Adjudicator for Higher Education had wrongly found that assessment criteria did not have to be published. Nonetheless, as the Claimant had not exhausted his local remedies, were the decision quashed, the same decision would likely have been made again.
6 February 2013
(1) The Claimant had been a student of the London School of Economics and Political Science (‘LSE'). He started the MRes/PhD Economics programme in September 2007. The degree was awarded to students who passed the three core courses and a field course and research paper. Students were only permitted to re-sit each of these elements once.
(2) The Claimant failed two core modular examinations in June 2008. Upon resitting these examinations, he failed one of them again, meaning he could not complete the MRes and progress to register for the PhD.
(3) The Claimant made a complaint to the Independent Adjudicator for Higher Education (‘OIA'), but this was rejected in May 2011. The Claimant had not complained to LSE about the failure to publish examination assessment criteria. The marking scheme had been published.
(4) The Claimant brought this claim for judicial review based upon two grounds:
(a) In stating ‘I do not consider that paragraph 6.1 of the Instructions for Examiners for Taught Programmes 2008/2009 goes so far as to dictate that the assessment criteria or marking schemes to be disclosed to students in advance of examination', did the Deputy Adjudicator making the challenged decision make an error?
(b) Was LSE in breach of their own instructions and rules by not publishing their assessment criteria in advance of the Claimant taking the relevant examination?
(5) HELD: The Court was satisfied that paragraph 6.1(b) of the Instructions for Examiners for Taught Programmes 2008/2009 did require assessment criteria to be published. The Deputy Adjudicator had thus erred in holding that this criteria should not be published to students. Nonetheless, the Court also recognised that marking schemes could not be published to students before an exam.
(6) The Court considered, however, that the complaint as to non-publishing of assessment criteria had not been raised with LSE and, as such, the Deputy Adjudicator would likely have concluded that the Claimant had not exhausted his remedies with LSE.
(7) The Court held that the error of the OIA was not a material error. The Court was sure that if the Deputy Adjudicator's decision were quashed and remitted, it would undoubtedly be dismissed again.
(8) The Claimant's application was therefore dismissed.
 - Not exhaust remedies.
 - Not material error.
 - Conclusion.
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