Written evidence submitted by the Independent
Adjudicator for Higher Education in England and Wales (OIA)
As Independent Adjudicator and Chief Executive of
the OIA, I welcome this opportunity to submit evidence to the
House of Commons Business Innovation and Skills Select Committee's
Inquiry into the Future of Higher Education.
OIA MANDATES AND
ACCOUNTABILITIES
1. The mandates of the OIA derive from legislation,
Judicial Review, and the OIA Scheme Rules. A copy of the Rules
is attached at Annex A. The OIA Scheme was designated under the
Higher Education Act 2004 which established an independent Scheme
to adjudicate on student complaints against universities in England
and Wales without charge to complainants. The OIA, which had run
a voluntary Scheme from March 2004, began operating under statute
in January 2005.
2. Qualifying Institutions under the Act include
all HEIs in England and Wales, and each is required to join the
OIA Scheme. (Scotland and Northern Ireland both have their own
separate arrangements). Qualifying complaints include "an
act or omission" by an HEI, brought by a student or former
student, once internal procedures have been exhausted. Complaints
must not relate to "matters of academic judgment", although
the Courts have drawn a tight boundary around what constitutes
an academic judgment. Admissions issues and employment-related
issues are also outside the remit. The tests of the merits of
a complaint are whether the HEI has abided by its own procedures
and/or acted reasonably "in all the circumstances."
Governing Bodies of Universities have a statutory obligation to
comply with the Scheme Rules.
3. The Scheme is funded by annual member subscriptions
based on the number of enrolled students they have.
4. The OIA has the duties of Designated Operator
under the 2004 Act to publish the Scheme and supply relevant information
to the appropriate UK and Welsh Assembly Government Ministers.
It has also recently become a Registered Charity, under the supervision
of the Charities Commission.
5. The OIA is a not-for-profit, company limited
by guarantee, governed by its Memorandum and Articles of Association
as amended. This means that the OIA is neither part of a Ministry,
nor has access to state funding.
6. The Rules of the Scheme make clear that the
Independent Adjudicator (who is appointed by and responsible to
the Board) acts independently of the Board, HEIs and complainants
in determining complaints. The Board, which has oversight of the
performance and effectiveness of the Independent Adjudicator and
the Scheme, has a specific responsibility under the Rules to preserve
the independence of the Independent Adjudicator.
7. The Board has a majority of independent members
(including the Chair) who are appointed under Nolan Rules of fair
and open competition. A minority of members are Nominated Directors,
nominated by sector stakeholders including the Association of
Heads of University Administration, the Committee of University
Chairs, GuildHE, Higher Education Wales, the National Union of
Students and Universities UK. Nominated Directors are also (formally)
members of the Company.
8. The decisions of the Independent Adjudicator
are subject to Judicial Review following the landmark Siborurema
case[40]
heard in the Court of Appeal in December 2007. In the first five
years of operating the Scheme the OIA has had 22 student challenges
to its Formal Decisions under Judicial Review. None of these challenges
has been successful, but in the process the OIA has received repeated
endorsement for its approach to case handling.
OPERATIONS
9. The OIA operates from headquarters in Reading.
There are 31.6 FTE (full time equivalent) members of staff 24
(75 %) of whom handle complaints. The Chief Executive and Independent
Adjudicator is appointed under Nolan Rules of fair and open competition
and is supported by a small Senior Management Team, including
two Deputy Adjudicators and a Chief Operating Officer.
10. Since 2005, the OIA has reviewed and closed
more than 5,000 student complaints. Last year (2010) just over
a quarter of all complaints were found Justified or Partly Justified.
11. Although the Scheme has no regulatory powers
over universities, under the Scheme Rules, a failure to comply
with a Formal Decision or Recommendation of the OIA can lead to
the publication of the non-compliance in the OIA Annual Report.
This is an important incentive to universities and historically
universities have had an excellent record of complying with OIA
Formal Decisions and Recommendations. (A case of non-compliance
will be published in my 2010 Annual Report).
12. Paradoxically, notwithstanding this good
record, student complainants are sceptical about whether or not
Universities really do comply with OIA Decisions, and this subjective
view erodes the confidence of some complainants in the independence
of the Scheme. [41]
I am clear that this is an issue which will be successfully addressed
by the forthcoming change in Rules about publication of summaries
of OIA Formal Decisions (see below, paragraph 30).
STRATEGIC REVIEW
AND BENCHMARKING
13. In autumn 2008 the OIA launched the Pathway
consultation exercise, a wide-ranging strategic and consultative
review of mandates and operations based on both quantitative and
qualitative evidence. The culminating Pathway Report, published
in February 2010, showed there was widespread endorsement of the
OIA's mandate and approach to handling student complaints amongst
students unions, complainants and universities, but plenty of
opportunity for development. There was acknowledgement of the
OIA Scheme's independence and effectiveness and of the high quality
of its formal decisions.
14. Complainants were also asked about their
first impressions of the OIA. The most commonly held view was
that the OIA was seen as approachable (46%).[42]
15. The vast majority of complaints refer to
academic-related issues in which the student complains that in
reaching a decision about a degree the university has not abided
by its own regulations or has behaved unreasonably in (for example)
not taking into account legitimate mitigating circumstances or
imposing disproportionate sanctions for academic misconduct. Plagiarism
and the appropriate handling of it continues to be a sensitive
issue. Other areas of complaint include alleged failure of service
delivery (such as accommodation), fees-related issues and alleged
discrimination. See Table 1 below.
Table 1
THE ISSUES STUDENTS COMPLAIN ABOUT[43]
| Accommodation | 1%
|
| Professional recognition of course | 2%
|
| Plagiarism | 4% |
| Work placement | 5% |
| Fees | 5% |
| Fitness to practise | 5% |
| Disciplinary proceedings | 75
|
| Delay | 8% |
| An individual | 10% |
| Thesis or dissertation supervision | 12%
|
| Other | 12% |
| Unfair penalty imposed | 13%
|
| Disability | 14% |
| Course content or delivery | 16%
|
| Discrimination | 19% |
| Degree classification | 19% |
| Departmental conduct | 27% |
| Mitigating circumstances | 27%
|
| Marking (assignment/exam/thesis/dissertation)
| 34% |
| Unfair procedure | 46% |
16. The Pathway Report set out 28 Recommendations and 10 "Quick
Wins" for enhancing and developing the Scheme. The OIA Board
unanimously adopted the Report and its Recommendations and the
Implementation Strategy set out below was begun immediately.
Table 2
PATHWAY RECOMMENDATIONS IMPLEMENTATION
| Theme | Key Actions
| Implementation |
| Mandates and Clarity of Purpose | 1. Extend Scheme to Non-Qualifying Institutions
2. Consult on extending Scheme to FECs running Foundation Degrees
3. More effective dissemination of mandates and Rules
| Implemented
In progress
Implemented
|
| Independence | 4. New procedure for service complaints
5. Change of Qurom Rules
| Implemented
Implemented
|
| User Perspective, Access and Flexibility |
6. Additional Student Board member
7. Revision of Scheme Application Form, OIA literature, and Guidance on Completion of Procedures and Eligibility
8. Review of Disability Policy and Practice
| In progress
Implemented
Completed. To be implemented
|
| Proportionality, Efficient and Effective Approaches
| 9. Development of electronic transactions
10. Review of "first contact" engagement with complainants and use of Fast Track procedure
11. Review Funding model
| Implemented
Completed and implementing
In progress
|
| Transparency | 12. Consult further on how to publish Formal Decisions.
13. Publish core information about individual HEI record on complaints.
| Consultation completed
To be implemented
|
| Quality Outcomes | 14. Publish indicative guidance on Remedies
15. Review compliance arrangements
16. Develop written good practice guidance
| Completed & implementing
In progress
In progress
|
EMERGING ISSUES—SAFEGUARDING
THE STUDENT
EXPERIENCE
17. The OIA Scheme provides important safeguards to the student
experience at university, clearly not present under the old arrangements
in which university-appointed Visitors (or their nominees) handled
complaints. These safeguards, acknowledged by the Courts in a
number of Judicial Review challenges to OIA Formal Decisions,
include independence, impartiality, transparency, consistency
of approach across all HEIs and operational expertise capable
of handling significant annual increases in complaints received.
18. In addition the OIA has an important role in working with
universities and students unions to ensure there is effective
learning from complaints and appeals experience. The dissemination
of information about Formal Decisions, cases studies, workshops
and good practice guides is central to the development of good
practice and enhanced student experience.
RISING NUMBERS
OF COMPLAINTS:
THE CONTEXT
19. As documented by the annual National Student Surveys,
the vast majority of students have a highly satisfactory experience
of university and the number who end up bringing a complaint to
the OIA represent a very small proportion of the overall number
of students (0.05% of students enrolled in higher education in
England and Wales in 2009[44]).
Further, and importantly, in successive years, more than two-thirds
of eligible complaints to the OIA are found to be Not Justified.
However as Figure 1 (below) shows the number of students who complain
is increasing year on year. My 2010 Annual Report will show that
this trend continued in 2010. There are a number of reasons for
this:
— A developing
awareness of the OIA Scheme amongst students and Student Unions
as the OIA becomes a more established feature of the higher education
landscape;
— A general
appreciation that in increasingly competitive job markets, higher
education qualifications have an impact on chosen career paths;
and
- The growing importance of Fitness-to-Practise
issues in universities. Here students studying, for example, medicine,
nursing and law must satisfactorily pass placements as part of
their course in addition to academic hurdles. Failure to do so
jeopardizes directly the possibility of professional practice
in the future, and therefore increases the likelihood of complaints
and appeals where placements are failed.
-
20. A breakdown of complaints received by the
OIA shows that post-graduate students, students over the age of
25, and international students from outside the European Union,
are disproportionately represented in the number of complaints
brought to the OIA. The OIA has not only seen a steadily increasing
volume of complaints but also an increase in the complexity of
the cases it handles as universities become better experienced
at resolving "simple" cases.
A RISE IN
TUITION FEES,
GREATER USE
AND CAPACITY
21. It seems reasonable to plan on the basis
that a significant rise in tuition fees will lead to a significant
rise in the number of student complaints, on top of the increases
experienced so far. There are several reasons for this including:
— Prompted
by the analysis of Lord Browne and others, there is already an
increasing appreciation by students that they have the status
of active, participating "consumers" in higher education
with the right to complain. This appreciation is likely to grow
with the doubling and trebling of tuition fees from 2012; and
— The
increasing emphasis put on the service entitlements associated
with the excellent Student Charter Group initiative[45]
to develop a template for Student Charters in every university
will (rightly) make more explicit where service provision falls
short of what has been promised by a university.
22. The OIA Scheme operates without cost to students
(a core principle set out in the 2004 legislation) and is funded
by universities who pay an annual subscription based on the number
of enrolled students they have. There are 143 HEI members and
the average subscription for 2011 is £16,400. This works
out at an average cost to each HEI of around £1.06 per student
per year. The unit cost for handling a student complaint (together
with any associated Judicial Review of a Formal OIA Decision)
is less than £3,000. This is broadly equivalent to the unit
costs of other Ombudsman-type schemes.[46]
It constitutes excellent value when compared to the costs for
a university in defending a case in a court of law. The Law Commission
has recently indicated that the average cost of a day in the High
Court supported by junior counsel is £16,242 (at 2009-10
prices).[47]
23. Judges have also acknowledged that the OIA
resolves disputes more quickly than through the Courts,[48]
but given that the number of complaints received has doubled in
the last five years, there are real pressures on OIA case-handlers
and average handling times have extended (in 2009 it took, on
average, 159 days to issue a Formal Decision). In the context
of the increases to come, action under the Pathway initiative
has been taken to pilot more streamlined approaches to decision-making,
but ones which do not impair the Office's outstanding record in
withstanding legal challenges to its decisions.
24. As set out in Table 2 above, and after careful
consultation in the Pathway process, we are also reviewing our
funding model and exploring the utility of introducing case fees
which may be a more equitable basis for allocating the costs of
continually rising volumes.
DEVELOPING A
MORE TRANSPARENT
AND JOINED-UP
REGULATORY FRAMEWORK
25. Quantitative and qualitative evidence gathered
throughout the Pathway consultation process (2008-11) shows there
is widespread support for, and confidence in, the OIA as an impartial,
independent, and consistent complaints adjudicator, across the
higher education sector. The National Union of Students and Universities
UK both share the view that the OIA Scheme is an important guarantor
of the student experience.
26. The proposal in chapter six of the Browne
Report[49]
to amalgamate the regulation of higher education with the adjudication
of student complaints against universities in one (uncosted) super-quango
(the Higher Education Council) has attracted little or no support,
and is not supported by any evidence that such a move would be
productive. For example:
— No
consideration was given to how regulation and complaints are handled
in other sectors (or other countries). Evidence from the Financial
Services and Legal sector reforms illustrates the importance of
separating regulatory activity from complaints resolution so that
the independence and impartiality of complaints handling can contribute
to building the trust of complainants.
— Lord
Browne appears to make the false assumption that institutional
merger is the only way to join-up the regulatory and complaints
handling processes and ignores the potential of cross-sector Protocols
to ensure an integrated approach.
— There
would, in any event, be a significant risk of conflict of interest
in merging complaints handling with a Higher Education Council
dealing with investment to manage market failure in universities.
27. Removing the Office of the Independent Adjudicator
at the very moment when student complaints are likely to rise
steeply seems a move bordering on recklessness.
28. This is not an argument for the status
quo. The OIA will work constructively with Government, regulators
and sector bodies to ensure that in the new landscape there is
a joined-up approach, including the removal of any ambiguity about
roles and the important sharing of information about trends and
causes for concern in the sector.
29. One key element of this approach is the adoption
of proposals set out in the Pathway consultation exercise to give
greater transparency to the performance and record of named, individual
universities in handling complaints.
30. There is now extensive recognition in the
sector that practice on the publication of summaries of Formal
Decisions is out of line with good practice in Scotland and with
other sector schemes. Having consulted the sector twice on this
issue[50]
I can state that new, more transparent, arrangement for publication
of summaries of Formal Decisions will be operational from 1 January
2012.
OPENING THE
HIGHER EDUCATION
MARKET TO
PRIVATE SECTOR
AND FURTHER
EDUCATION PROVIDERS
31. Under the Higher Education Act 2004, privately
funded higher education providers are not classified as "Qualifying
Institutions" and are therefore not obliged to become members
of the OIA's Scheme. However, the OIA is able to extend the Scheme
it operates to "Non-Qualifying Institutions" (NQI's).
Following careful consultation with the higher education sector
in the Pathway exercise, the OIA established a protocol for the
admission of NQIs at the end of 2010. This sets out how NQIs may
apply for membership of the Scheme and the terms and conditions
applicable. So far, two private providers have applied for membership
of the Scheme and ifs School of Finance is
now a member. Other private providers are expected to become members
of the Scheme in due course.
32. Where the higher education "market"
is being further opened up to enable private providers and further
education providers to participate, students studying for degrees
at such institutions should enjoy the same safeguards enjoyed
by students in Qualifying Institutions. The principle of a level
playing field points to the need for all providers of higher education
to become members of the OIA Scheme.
20 April 2011
40 R(Siborurema) v OIA [2007] EWCA Civ 1365.Lord
Justice Moore-Bick noted that "It is for the OIA in each
case to decide the nature and extent of the investigation required
having regard to the nature of the particular complaint and on
any application for judicial review the court should recognise
the expertise of the OIA and is likely to be slow to accept that
its choice of procedure was improper. Similarly, I should not
expect the court to be easily persuaded that its decision and
any consequent recommendation was unsustainable in law." Back
41
The Pathway Report: Recommendations for the development of the
OIA Scheme, 2010, Chapter
5 Back
42
All respondents were asked about their first impressions of the
OIA. The results are shown in Figure 5 on page 44 of the Pathway
Report. The most commonly held view was that the OIA was seen
as approachable (46%). The Pathway Report p44 para 5.22 Back
43
Report of the OIA Student Survey 2009, Table 7 Back
44
OIA Annual Report 2009 p53 Back
45
Student Charter Group Final Report http://www.bis.gov.uk/assets/biscore/higher-education/docs/s/11-736-student-charter-group.pdf
Back
46
Public Services Ombudsmen: A Consultation Paper, The Law
Commission Consultation Paper No 196, September 2010, Appendix
A. paras A 11-20 Back
47
Ibid, paras A 21-25. Back
48
Mitting J, R(Peng Hu Shi v KCL (QBD) [2008] Back
49
Securing a Sustainable Future for Higher Education - an
independent review of higher education funding and student finance.
http://www.bis.gov.uk/assets/biscore/corporate/docs/s/10-1208-securing-sustainable-higher-education-browne-report.pdf
Back
50
The Pathway Consultation Second Round http://www.oiahe.org.uk/downloads/oia_pathway_consultation_2nd_round.pdf
Back
| 
