FAQ - higher education law

There is no clear definition of a case (“ärende”) in the legislation. However, it is still important to understand roughly what is meant by a case in administrative law, since many rules in the Administrative Procedure Act apply only when we are actually handling a case.

Basically, a case is a defined matter that a public authority – in our situation, the university – must investigate and make a decision on.

A decision is a statement intended to have a certain effect for the person to whom the decision is directed. It is the purpose and the content that determine whether something is a decision, not the appearance of the document.

What does not constitute a case is usually referred to as factual activity or factual conduct. This type of work does not lead to a decision. A common example at the university is:
•    Teaching = factual conduct
•    Examination = handling of a case

A case begins when an application, request, or similar matter is submitted to the university, or when we ourselves decide to take up an issue. Regardless of how it begins, the authority must make some form of assessment of the matter that has been raised. This assessment normally ends with a decision intended to have real consequences for someone.

If, on the other hand, there is no obligation to make a decision, then the activity is considered factual conduct – meaning it is not case handling.

Providing advice or information as part of the authority’s duty to provide service under the Administrative Procedure Act is not considered a decision in the administrative-law sense. This applies even if the recipient is influenced by what we say. The difference from a decision is primarily that the information we provide through factual conduct is merely a notice – something the recipient does not have to follow.
 

A case can be initiated either by the university as a public authority starting/initiating the case or by an outsider (student or other) submitting a report or application of some kind. It is not normally required that the report or application is signed by the sender. We are therefore not to have a general signature requirement. If we deem it necessary in a particular case, we can require the sender to confirm the document in some way. This could be done in various ways, such as by making contact via telephone or email or asking the sender for a signature. 

As a public authority, we are responsible for ensuring that a case is investigated adequately. We will ask questions of parties where clarification is necessary. If we receive information by means other than a document, we are obliged to document it as soon as possible (by making an official note), if the information may be of significance to a decision on the matter. The documentation must include information about when it was created and by whom. We are to ensure that all material that is relevant to a decision in the case is made available to the party and that they are given the opportunity to comment on it before the decision is made. This applies before all decisions in a case, i.e. not only the final decision, but also decisions during the process, such as the decision to appoint an external expert in a case. Certain exemptions to the requirement on communicating materials with the party apply, including where such communication would clearly be unnecessary. We do not need to communicate material in cases about admission to, or grading within, the course or programme. 

Decisions can be taken by a single official, collectively agreed by several individuals, or automatically.

Each written decision must be accompanied by a document stating the date of the decision, the content of the decision, who made the decision, who the rapporteur was and who participated in the final processing without taking part in the decision itself.  
 

In certain circumstances it is possible to change a decision that is incorrect.

Before a decision has been communicated, it can be changed without the need for any particular conditions to be met.

After notification/issuance however, e.g. after a grading decision has been registered in Ladok or communicated via Canvas or by other means, changes may only be made under certain circumstances.

In some cases, a decision that has been taken can be changed, and in other cases, a decision that has gone wrong must be changed.  

If a communicated decision includes an obvious error and the error is due to a spelling mistake, error in arithmetic or similar, the decision can be corrected both in favour of and against the person affected by the decision. The error being obvious essentially means that anyone looking at the documents in the case would be able to see that it is incorrect.

If a decision is incorrect because new circumstances have come to light or for some other reason, the decision may be amended. However, decisions that are inherently favourable to the individual may only be changed to the individual's detriment if the decision contains a revocation clause, if compelling security reasons require the decision to be changed immediately, or if the individual has provided incorrect or misleading information that has caused the decision to be wrong. A decision which is manifestly wrong in any material respect because of the emergence of new circumstances or for some other reason and the decision can quickly and simply be amended without any prejudice to any party must be amended.

Bear in mind that the student or other party must have the opportunity to make a statement before a decision on rectification or amendment.

The general rule is that a decision on amendment is made by the decision-maker who made the original decision. 

If someone asserts that a member of Lund University staff has given oral notice of something, the default position is that the person must somehow be able to show that what they claim to have been said was actually said. In general, oral decisions from the University are binding, but it can be difficult to show that a decision actually exists and what the content of the decision is. 

When dealing with cases at the University, employees must fulfil the requirements of the Swedish Instrument of Government on objectivity and impartiality. For this reason, the rules on conflict of interest in the Administrative Procedure Act state that anyone who takes part in the handling of a case on behalf of a public authority in a way that may affect the decision is disqualified under certain conditions. Circumstances that may constitute a conflict of interest include, for example, a member of staff or someone close to them being party to the case or can otherwise be expected to be affected by the decision to a not insignificant extent, or if there is any other special circumstance that means their impartiality in the case could be called into question.
If, however, it is clear that the issue of impartiality is not relevant, the public authority is to disregard conflict of interest. 

A person who has a conflict of interest may not take part in the processing of the matter and may not be present when the matter is determined either. A person who is aware of a circumstance that can be assumed to disqualify them must immediately notify the University of this. If the question of conflict of interest has been levelled against someone and it has not been possible to replace that person, the University is to make a formal decision on the issue of conflict of interest. 

Being a supervisor or decision-maker in a case concerning required reading as an author of potential course literature may constitute a conflict of interest

A conflict of interest may arise when an employee at the University has written a textbook within a certain subject, and the person is then involved in decision-making on study resources for a specific course and the employee’s book is one of the study resources that could be potentially included as required reading. If the book is included as required reading it may entail a private financial gain for the employee. In such a case, the employee must not participate in processing or decision-making.

Several circumstances in combination may constitute a conflict of interest

It is a good idea to keep in mind that a conflict of interest may arise due to several circumstances that in combination may lead to a person being considered to have a conflict of interest, even though separately these might not constitute a conflict of interest. In an employment case, (Reg. no 21-353-08), the Higher Education Appeals Board stated that the chair of an academic appointments board had a conflict of interest because they had been an assistant supervisor for one of the applicants during the applicant’s third-cycle studies, had co-published work several years ago with the applicant, which the applicant also referred to in their application, had been listed under “Acknowledgements” in the applicant’s doctoral thesis, was a colleague of the applicant at the same faculty and they were both members of faculty boards and management groups together. These circumstances in combination undermined trust in the chair and the person was therefore considered to have a conflict of interest.

Co-publication may constitute a conflict of interest

Regarding co-authorship, in terms of established practice a close, long-term and until recently ongoing scientific collaboration constitutes a conflict of interest in relation to employment cases according to the Administrative Procedure Act. Exactly where the time limit lies for when a conflict of interest arises regarding co-publication is not entirely clear. HR has collected many of the Higher Education Appeals Board’s precedents relating to conflict of interest in employment cases, including cases concerning co-publication. Read more here Rules for conflict of interest in recruitment | HR Pages  (in Swedish).
 

The only assessment you are to make is to determine whether or not the appeal has been submitted in time. Read more about how appeals are processed in the Guidelines for appeals at Lund University (in Swedish). 
 

If an individual has special reasons for delaying the start of their studies, as a general rule the University will approve deferment. Special reasons might be illness, taking care of children or other special circumstances. (The study start can be deferred a maximum of 18 months unless there are special reasons for a longer period.) In principle, we can only deny a request for deferment on special grounds if the programme is to be cancelled and there would therefore be no opportunity to start at a later date. If we deny a request for deferment, we are to inform the individual concerned that the decision can be appealed (to the Higher Education Appeals Board) and how to do so. 

If an individual has special reasons for a leave of absence from their studies, as a general rule the University will approve the leave from studies. Special reasons might be illness, taking care of children or other special circumstances. A decision on approved leave from studies means the student is guaranteed a place to continue their studies at a particular given date. If the request is not approved, the student may of course take leave from studies anyway, but they do not then have the right to a guaranteed place on the course or programme at a given date, but whenever space is available. 

No, there is no such limit.

The content of the syllabus is binding, both for students and for the University. This means that the University cannot make exceptions to the syllabus. In order to make exceptions to what is stated in the syllabus, the syllabus itself must first be amended by a decision-maker authorised to do so. 

There is no unqualified right for students to be allowed to sit an exam at another location. However, in light of the rule on authorities' service obligations in the Administrative Procedure Act, there may be reasons for the University to offer such an opportunity in some circumstances. Note that the University may not apply any charges if the student is permitted to sit exams away from the normal location. 

Yes, under certain circumstances. A student who has taken two examinations in a course or a part of a course without obtaining a grade of Pass is entitled to have another examiner appointed unless there are special reasons to the contrary. Special reasons might for example be that there is no other member of teaching staff who is appointed as examiner in the subject in question at the University. 

The number of opportunities a student has to sit an exam or complete a work placement is unlimited, as a general rule. The University can, however, decide on a limit if the University deems that an unlimited number of opportunities will lead to an unreasonable waste of the University’s resources. There must, in other words, be genuine reasons relating to resources if the number of opportunities is to be limited. In such cases, the number decided must be at least five if the restriction applies to the number of examination opportunities, and at least two if it applies to work placement opportunities. Such a restriction must be stated in the syllabus.  

Grading decisions cannot be appealed, but it is possible to request a reassessment of the decision. It is the examiner who decides about the reassessment. 

There are no rules in the higher education regulations concerning the language in which a course or programme is to be delivered. Most courses are delivered in Swedish, but it is also commonplace for courses to be given in English or other languages. If a course is given in a language other than Swedish, this must be stated in the syllabus and students are to be informed in good time before the course starts that the course will be given in another language. If the objectives of the course require students, for example, to achieve a certain level of proficiency in English or to demonstrate the ability to communicate in this language within the course, students must also respond in English in the assessment. Otherwise, they risk receiving a grade of Fail.