Background
At its first meeting on 14 July 2006 the Advisory Group (the Group) discussed the question of time limits for bringing any complaint. The note of the meeting states in paragraph 5:
'There was some discussion of the need to define a 'student' so as to ensure that the definition [encompassed] those studying via overseas collaborative provision and those who had recently completed their studies, recognising that sometimes there may be in interval before a recently completed student feels able to complain for fear of reprisal, but any such opportunity should be time-limited'.
There was a return to this question at the second meeting of the Group on 6 October 2006. David Cairns, the Convenor of the Group, invited the two solicitors in the Group, Gary Attle from Mills & Reeve, QAA's solicitor, and Jan Harris from Eversheds LLP, Group member, to prepare a briefing note on this issue that could form the basis for a discussion at the next Group meeting. This is our joint note.
Options for time limitation
1 There could be a specific time limit, such as 21 days, three months, six months etc from the date of the event complained of.
2 There could be a specific time limit as in point 1 above, but related to the result of the event complained about, eg if the event complained about was the conduct of an examination then time could run from the date of the result of the examination.
3 There could be a specific time limit related to some other point, eg some time limit from the date of the final award to the student.
4 Any of the above could be strict limits or they could be varied by the exercise of discretion in any individual case if the circumstances reflected that need.
5 There could be no limit at all to when a claim might be made.
Legal time limits
There are a number of legal time limits which it might be relevant to consider in relation to time limitation. However, these are only broad rules as the position can be more complex.
6 An application for Judicial Review must be filed promptly and in any event not later than three months after the grounds to make the claim first arose. The way in which the Civil Procedure Rules phrase this time period indicates that even where a claim is filed within the three-month period, if the Court considers that the application was not made promptly it will be out of time1.
7 The limit for issuing a claim in the County Court connected with discrimination on the basis of age2, sexual orientation3, religion or belief4, sex5, race6 or disability7 is six months from the date of the act complained of, however, the Court has the power to consider a claim where it is out of time if it considers it to be just and equitable to do so. Where a claim arrives at the County Court having been referred there by the Office of the Independent Adjudicator for Higher Education (OIA) and is connected with discrimination on the basis of sex8, race9 or disability10 the time limit is still six months from the date of the act complained of, however, the Court can extend this by three months.
8 The limit for issuing a personal injury claim is three years.11
9 The limit for issuing a claim for breach of contract is six years.12
10 The limit for issuing certain claims in tort, such as an action for damages for negligence, is six years.13 Alternatively, the limitation period may be three years from the claimant's date of knowledge of the required elements to bring a claim in negligence.14 An action for damages for negligence is subject to a long stop period of 15 years from the date of the negligence.15
11 The time limit for lodging a complaint with the OIA is three months from the date of the completion of procedures letter, but it should be noted that the OIA reserves the right to use discretion to extend that limit.
Practical considerations
12 The higher education institution (HEI) must act with fairness to the complainant, to other individual students, to the student body as a whole and also to any staff member complained about.
13 Extended timescales can/do mean that an appeal or complaint will be harder to deal with as memories fade; documents may become unavailable; staff leave.
14 Time limits set will impact on document retention policies.
15 A student may hesitate to make a complaint until after they have left the HEI.
16 It may take more time for students who have studied overseas or who have returned/gone overseas since their study period to meet tight timescales.
17 There might be compelling reasons for time limits, eg in academic appeals, an appeal would need to be lodged before any scheduled examination board meeting.
Summary
18 There are good reasons, in principle, for having time limits both for appeals and complaints.
19 There are a number of feasible options for time limits..
20 There is a considerable variation in legal time limits.
21 There are a number of matters to take into consideration when setting any time limits.
Recommendations
22 Since it is possible to set a time limit for any appeal or complaint we suggest that HEIs be encouraged to set reasonable but shortish time limits, but reserve the right to vary any limit in should individual circumstances suggest that this would be the right decision.
23 In that case we suggest that any time limitation for lodging an appeal is within a maximum of one month from the date of the decision to be appealed against, subject to the possibility of it needing to be a shorter period if pre-arranged meetings dictate that.
24 In respect of academic complaints we suggest a three-month time limit from the date of the event complained about.
25 In both cases we suggest that the HEI should reserve the right to extend the time period if consideration of the individual circumstances suggest that this would, overall, be a fair decision to make.
Gary Attle
Jan Harris
31 October 2006
1Civil Procedure Rule 54.5 (1) (back to text)
2Employment Equality (Age) Regulations 2006, regulation 42. (back to text)
3Employment Equality (Sexual orientation) Regulations 2003, regulation 34. (back to text)
4Employment Equality (Religion or Belief) Regulations 2003, regulation 34. (back to text)
5Sex Discrimination Act 1975, section 76. (back to text)
6Race Relations Act 1976, section 68. (back to text)
7Disability Discrimination Act 1995, Schedule3, Part 4, section 13. (back to text)
8Sex Discrimination Act 1975, section 76. (back to text)
9Race Relations Act 1976, section 68. (back to text)
10Disability Discrimination Act 1995, Schedule3, Part 4, section 13. (back to text)
11Section 10 Limitation Act 1980. The period runs from the date of the negligence which caused the injury or the date of knowledge (if later) of the person injured. The court has a discretion to disapply the limitation period under s33 Limitation Act 1980. (back to text)
12Section 5 Limitation Act 1980. The period runs from the date on which the cause of action accrued which is generally the date of the breach of contract. (back to text)
13Section 2 Limitation Act 1980. The period runs from the date when damage caused by the tort occurred. (back to text)
14Section 14A Limitation Act 1980. (back to text)
15Section 14B Limitation Act 1980. (back to text)
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