Blake Lapthorn's Professional Regulatory team held a seminar on student complaints and disciplinary issues with Baroness Ruth Deech on Thursday 20 May 2010.

1. INDEPENDENT ADJUDICATION
OF STUDENT COMPLAINTS
An Update
Ruth Deech
May 2010
1

2. 2

3. Establishment of the OIA
• Framework set out in Higher Education Act
2004
• Designated operator of the student complaints
scheme
• All universities in England and Wales covered
by Scheme Rules from 1 January 2005 and
must have compatible procedures in place
3

4. How is the OIA constituted?
• Independent body
• 35 full and part time staff, 144 universities covered
• Higher education sector represented by 6 nominated
Directors: one from each of UUK, Guild HE, CUC, AHUA,
HEW and NUS
• Plus 8 independent Directors
• The Independent Adjudicator Robert Behrens
4

5. Overall Aims
• Simple speedy procedures
• Resolve on campus if at all possible
• Consider a “campus ombudsman”
• Apply the principles of natural justice in
hearings
• Tell students about procedures and the
OIA
• Monitor, review and report
5

6. What does it do?
• OIA reviews complaints to see whether they are “justified”:
– Did university/college properly apply regulations
and follow procedures?
– Was university’s decision reasonable in all the
circumstances?
• OIA also makes good practice recommendations
6

7. Procedures
• Realistic time limits with cut off times but
some flexibility
• Inform students (also changes) through
handbook, website, union
• Point to OIA and give prompt COP letter
• Realistic remedies (change to course,
apology, compensation, fresh re-take,
rehearing), placing student in the position
they should have been in
7

8. Dealing with complaints
8

9. Bringing a complaint to the OIA
• Students must first exhaust University’s internal
complaints procedures
• University must issue a Completion of Procedures (COP)
Letter
• Students have 3 months to come to the OIA from the date
of the COP letter
9

10. What OIA will look at
• Complaints about acts or omissions of
university/college
e.g.
– Welfare issues
– Contractual issues
– Breach of HEI procedures
– Discrimination
– Poor practice
– Disciplinary matters
10

11. What OIA won’t look at
• Academic judgment: a matter where only the
opinion of an academic expert will suffice, eg
degree class, assessment, fitness to practise
• Admissions
• Matters before the courts
• Employment cases
• No case to answer
11

12. Who can apply?
• Registered students or former registered students of a
university
• Includes students at FE institutions offering courses
leading to an award from a university
12

13. Types of Recommendation
Refer back to university for review
• Apologise
• Better considered in another forum
• University to pay compensation
• University to take some action
• University to change its internal
procedures
13

14. After OIA Review
• University is expected to comply, and all
decisions accepted so far
• Non-compliance will be reported to the
Board/publicised in the Annual Report
• Non-binding on students unless offer
accepted
14

15. Resolve on campus
• Problems are allowed to escalate
• Campus ombudsman; one stop confidential
shop, informal, access to hierarchy – US,
Australia
• May be first or last stop
• Informal, mediating, good to talk
• Help overseas students “save face”
• Independence important
• Not suitable for all situations
• Same job, different title – Dean, Proctor?
15

16. Some Statistics 2008
• Helpdesk dealt with over 900 enquiries
• 900 applications form received
• 734 applications were eligible
• Closed 630 cases, averaging 20 weeks from acceptance
• Almost half were fast tracked
16

17. Applications received 2006-8
• 2006 – 586
• 2007 – 734
• 2008 - 900
17

18. Subject Matter of Complaints
• Academic Appeal/Exam Results/Degree
– 65%
• Contract (service issues) – 15%
• Discrimination & Human Rights – 6%
• Disciplinary Matters – 6%
• Welfare & Accommodation – 2%
• Other – 4%
• Financial – 2%
18

19. Complaints by course type
• Business administration 148
• Subjects allied to medicine (nursing) 116
• Law 115
• Social studies 72
• Arts and Design 55
• Education 44
• Medicine/Dentistry 42
• Engineering 31
• Computer science 29
• Biological sciences 27
• Architecture 21
• ….
• Agriculture 4
19

20. Who are the complainants?
• 439 females, 461 males
• Undergrad 529, doctoral 69, other grad
286
• Under 25 – 302, 25-39 – 336, 40+ 228
• Home 601, EU 72, nonEU 201
• British 578, Indian 31, Chinese 25,
Pakistani 21, Greek 17, Nigerian 16, Irish
14, US 13, Mauritian 10, Italian 9
20

21. Outcomes 2008
630 complaints closed
• 41 Justified
• 103 Partly Justified
• 450 Complaints Not Justified
• 23 Settled
• 13 Withdrawn
• £93K+ Total Compensation awarded in 2008
21

22. Postgraduate Research
Recommendations
• Compensation for poor supervision / delayed progress
• New viva required for student who was able to demonstrate possibility of bias
• Opportunity to re-submit as first submission when there was poor procedure around a
viva
• Compensation for delay and lack of information about grounds for termination
• Fresh appeal when examiners not suitably qualified under regulations
• Referral back to university when external examiner expressed concern about quality of
supervision
22

23. Taught Master’s courses
outcomes
• Compensation awarded as University failed to
identify & assist a student after he advised the
University of his medical condition.
• Compensation as the University failed to enrol
student correctly causing him great confusion
and a period of disadvantage.
• £3500 to student whose thesis referred; student
had no annual review, no record of supervision,
no induction, supervision inadequate
23

24. Taught Master’s courses
More outcomes
• 75% of fees refunded, plus 50% of loan to be paid and compensation for
inconvenience suffered when a course finished 6 months later with 95% of the
promised tuition not provided.
• Compensation awarded as part of a refund of fees and for loss &
inconvenience for numerous problems encountered on a course.
• Matter referred back to the Board of Examiners for reconsideration after the
University lost the student’s examination script and she had to rewrite. The
Board of Examiners was not aware of this.
24

25. The Law
25

26. Attitude of Courts
• Courts (and OIA) resist claims based on
academic judgment
• Courts express enthusiasm for ADR and
decisions by expert bodies
• Need to familiarise themselves with OIA
• Injunctions and judicial review against the
university to enforce obligations
26

27. Legal issues
• Natural justice principles:
• “Bias”, hear both sides, reasons, notice of
charge
• Availability of legal aid to students to
challenge OIA and universities
• Disclosure of documentation under FOI
• Range of sanctions
27

28. Judicial Review of the OIA
• Siborurema case Court of Appeal 2007
• The OIA’s decisions may be judicially
reviewable
• The court would interfere only on the
narrowest of grounds
• OIA review approach confirmed by the
court
• Appeal on substance dismissed
28

29. Arratoon Case
• [2008] EWHC 3125
• A failed his teaching placement 3 times,
complained about institutional racism, breach of
tutors’ duty of care and poor academic judgment
• Complaint to OIA turned on whether university
had completed internal appeal; A was awarded
£75 for lack of clarity and legitimate expectation
of 22 days’ duration
• JR failed. Court followed Siborurema,
emphasised discretion and expertise of OIA, no
interference unless OIA perverse or irrational
29

30. Budd case [2010] EWHC 1056
• Student challenged mark, thought there must be
error or wrong script; sought JR:
• Alleged OIA should have seen script, held full
merits review, granted oral hearing (Art 6
ECHR), challenged its independence
• Court refused JR, no right to oral hearing,
discretion of OIA not fettered, OIA independent
of parties and pressure; can decide how far to
investigate, no right to see script, exempt under
DPA
30

31. More litigious
• 2 recent High Court cases criticised
students for going to court rather than OIA
• But more students are complaining to the
OIA and going to court as well
• Courses more expensive, students older
and from overseas, more at stake
• Universities have not caught up with
procedural fairness
31

32. Learning from complaints
• Monitor – track complaints including time
and equal opportunities information
• Review and evaluate – effectiveness, staff
training and guidance, priorities and timing
• Report to governing body
• Seek feedback from students
• Publish information about complaints
32

33. Fitness to practise
• Medicine • Veterinary
• Nursing • Social care
• Dental surgery • Sports studies
• Psychology • Teaching
• Physiotherapy • Community justice
• Counselling • Clinical criminology
33

34. Student teacher lacked self
control
• Student teacher on placement was frequently abusive to
teachers in front of children
• An FTP panel was set up - included school representatives
and a student union representative
• Panel heard evidence & found that student had poor self
control and was unable to accept constructive criticism
• Concluded that he was unable to meet GTC standards and
recommended withdrawal from course
• Student complained about unfair treatment
• OIA did not interfere, because a matter of academic
judgement
34

35. The Pathway Project
• In 2009 the OIA consulted 140
universities, students’ unions, students
and interested individuals. Report
published Feb 2010.
• Past complainants (240) were surveyed.
• They thought universities took too long to
settle complaints and procedures difficult,
disappointed by result
• Did not think university would obey OIA
35

36. Recommendations for the future
• Might extend to private degree awarding bodies
• Forms and COP letters should be clearer
• Annual returns from universities about number
of complaints
• Maybe complainant should meet adjudicator
• More use of fast track procedure
• Build up electronic bank of all university
regulations
• More regional seminars
• Produce good practice guides
36

37. Teaching and learning
37

38. Future Issues
• Are we looking after and preparing
overseas students?
• Language difficulties and cultural
expectations
• Dyslexia notification and adjustments
• Fitness to practise and professional
placements
• Too legalistic – judicial review and lawyers
38

39. Student Legal Issues
• Bursaries – reliance on the promise,
continuation, set off against debt/rent
• Bursary regulations, including complaints
• Provision of and standard of
accommodation, eviction law
• Health and safety – field trips, food, labs
• References; must provide fair and
accurate one, for many years
39

40. Contact
• By post:
– Fifth Floor,Thames
Tower, Station Road,
Reading RG1 1LX
• Tel: 0118 959 9813 (ask
for Helpdesk)
• Fax: 0118 955 9099
• Online: www.oiahe.org.uk
• Email:
enquiries@oiahe.org.uk
40

41. Student discipline
How to avoid the pitfalls by having
the right structures in place
Stephen Murfitt

42. Student discipline
Contract
Focus - A matter of process
Lack of High Court Precedents

43. Three considerations
Compliance with HEI own Rules
Rules of Natural Justice
Article 6 European Code of Human Rights

44. Rules of Natural Justice
Two basic Rules:
(i) No person is to be the Judge in his own cause
(ii) No person is to be condemned unheard
Therefore rules concerned with the manner in which the
decision is taken rather than with whether or not the decision is
correct
Test is procedural fairness or a general duty to act fairly
Applies to Committees of clubs, political parties, trade unions,
professional bodies and academic institutions exercising
functions of a disciplinary or similar nature
Glyn v Keele University 1971 2AER 89

45. Article 6 ECHR
In the determination of his civil rights and
obligations or of any criminal charge against
him, everyone is entitled to a fair and public
hearing within a reasonable time by an
independent and impartial tribunal established
by law…
R (on the application of G) v Governors of x
School (y City Council) 2009 L ER 799

46. Investigations
Separation between Investigation and
Decision body
Flanagan v University College Dublin 1988 IR
724
R (on the application of Carnell) v Regents
Park College and the Conference of Colleges
Appeal Tribunal (7 April 2008)
Suspension

47. Misconduct
How widely can you define misconduct?
Specific Misconduct: criminal convictions
Geography
Reputation?

48. Pre-hearing
Charge
Statements of fact
Documents
Refusal to engage
– Service requirements
R (on the application of Peng Hu Shi) v
Kings College London (9th April 2008)

49. Hearing
Adversarial or inquisitorial?
Representation: R v Governors of X School 2009 LGR 799
Procedure: R (Carnell) v Regents Park College and CCAT
(7 April 2008)
Standard of Proof
Burden of Proof
Evidence
– hearsay
– relevant

50. Hearing (II)
Private or public?
Delay
Absence of Student

51. Giving reasons
Nash v Chelsea College of Art and Design
2001 ALLER 133
Gupta v General Medical Council 2002 1
WLR1
Southall v General Medical Council 2010
ALLER
“Fairness requires reasons to be given”

52. Sanction
Proportionate
Punishment/Support

53. Appeal
Appeal Committee
Separation

54. Healthcare students
Higham v The University of Plymouth (18 July 2005)
Fitness to Practise and public safety considerations
Separate rules
Separate regime
Guidance: GMC; GDC and NMC

55. Conference of Colleges Appeal Tribunal
Composition: Three persons. President a Lawyer
Preliminary Relief: President
Preliminary Hearing Within 14 days of the application being
of Panel only: received.
Process: “The Chairman, the President and the Panel
shall have discretion as to appropriate
procedure. In all or any of their activities each
shall be guided by the principles of natural
justice” (June 2005)

56. Judicial Review
Refused when adequate alternative remedy exists
OIA adequate remedy?
R (on the application of Carnell) v Regents Park
College and the Conference of Colleges Appeal
Tribunal (7 April 2008)
OIA: Judicial Review
– R v (Siborurema) v OIA 2008 ELR 209
– R (Arratoon) v OIA 2009 ELR 186
– 15 JR Applications to the end of 2008

57. Conclusion
Comprehensive code or rules of discipline:
Set of tools for the administrator of the process
Assist the decision making body
Saves time money and resources
Protects the Appeal position

58. Student civil claims: how to
avoid them
Christopher Alder

59. Student civil claims
Civil action, such as:
– student contract – quality/nature of tuition
Clark v Uni Lincolnshire and Humberside [2000] 3 All ER 752
Buckingham v Rycotewood (unreported) 28 Feb 2003
Warwick Crown Court
– property/accommodation
– libel – plagiarism?
– negligence:
professional/academic negligence
– Phelps v Hillingdon LBC [2000] All ER (D) 1076
educational malpractice
personal injury
– Tuttle v Edinburgh [1984] SLT 172

60. “The empowered student consumer”
Increased number of civil actions
Cultural
– the age of consumerism
– service industry / value for money
Financial
– commitment
– parental
– insurance funding
Expectations
– motivation
– increasing overseas students
– student demographic

61. Reducing the risk of litigation
1. Preventative action
audit student contract
audit academic / non-academic complaint procedure
2. Robust and fair procedure
proportionate
accountable – justification of decision and be subject
to scrutiny
consistent
transparent
targeted
3. Engagement
4. Awareness consumer focus – cultural alignment

62. New ideas?
Transparency from the outset
– involve students in complaints process – greater
communication?
– seek feedback
Internal dispute resolution
– ADR
– mediation
– expert determination
– conciliation / facilitation
– Insurance?
External appeal