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Jean-Yves Gilg

Editor, Solicitors Journal

Update | Education: complaining against higher education bodies

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Update | Education: complaining against higher education bodies

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Salima Mawji assesses 'the effectiveness of the 'new complaint procedure against higher education bodies and the role of the independent adjudicator

The Office of the Independent Adjudicator for Higher Education (OIA) was established under the Higher Education Act 2004. Up until that point, students had the option to pursue matters to the University Visitor, if the University had one, or to the Administrative Court by bringing an application for ?judicial review.

Now, if a student is faced with an internal procedure at a university '“ whether it is academic misconduct, academic failure, discipline etc, the student must pursue all internal appeals upto and including the last appeal. At the end of the last internal appeal, alongside any decision letter, the university must issue a Completion of Procedures Letter which triggers the student's right to complain to the OIA. The student then has three months within which to launch a complaint to the OIA.

The OIA can refuse to hear a complaint if the matter has already been challenged in the courts, and the litigation proceedings are live '“ this can be litigation for breach of contract, negligence, discrimination, or indeed judicial review.
Since the OIA considers student complaints, the Administrative Court is very reluctant to hear judicial review applications, often refusing remedy to students on the basis that the OIA is a suitable alternative remedy. There have been some interesting cases in the High Court, challenging the decisions of the OIA. To date, only one has succeeded '“ Cardao-Pito v OIA [2012] EWHC 203 (Admin), a case brought by a student against the London Business School. The High Court was particularly critical of the OIA and stated that the OIA had failed to deal with the issue in hand; and failed to provide proper reasons for its decision. The court quashed the decision of the OIA and remitted the matter back to the OIA for a fresh decision to be made. In light of the success of this case, practitioners may now be well advised to consider issuing judicial review proceedings in the High Court against the decision of the university and staying those proceedings pending the outcome of the complaint to the OIA.

Complexity and delay

The OIA are particularly good in dealing with certain types of cases but other types can prove too complex for sensible decisions to be made. One of the biggest gripes that clients experience is delay.

The OIA has stated that it deals with complaints within six months but in practice cases can take 12 and sometimes as long as 18 months after the complaint has been submitted.

Further, cases that would attract damages in the courts, are attracting sums as little as £500 to £750 despite cases demonstrating some very significant and key breaches by the defendant university. The acknowledgement by the OIA that damages should be awarded is often helpful in pursuing matters further to the courts. The situation is, however, far from ideal.

The OIA will often write into its decision the fact that if the student accepts the sums awarded from the university, this will be in full and final settlement of the stated claims in the complaint. This prevents students from pursuing matters to the courts, particularly if the payment of damages is inherently interlinked with any other remedy that the OIA might be suggesting.

So, for example, the OIA may remit a matter back to an internal appeal at the university and award damages '“ both remedies being in full and final settlement. It is not then, possible, for the student to request the appeal hearing at the university, and reserve his or her rights to pursue the matter to the courts for damages, should the student wish to do so. It is unpalatable for a PhD student, for example, who has been struggling on a PhD for seven or eight years, to then fail the PhD, appeal internally at the university, complain to the OIA, win the complaint, have that complaint remitted back to the university for another hearing, and be awarded £500 for the delay. By the time the OIA makes a decision, this could be some two years from the event.

In the Cardao-Pito case, the OIA originally awarded the claimant £400 in compensation. This was increased to £6,500 but only after the claimant began proceedings against the OIA. Like many students in the claimant's position, he was not seeking damages as the primary objective. He simply wanted redress to the injustices he felt he had suffered at the hands of his Higher Education provider.

That being said, there is one aspect that the OIA does not appear to have regard to when determining damages and that is the very real damage caused to students as a result of the failures of the university. Awarding damages that are more than a few hundred pounds will put universities on notice that if they don't apply their procedures properly, and efficiently, they will need to make good the damage that is being caused to the student.

Time and time again, as a practitioner, I come across the same delays in the appeal processes, the same failures in applying procedures, as those already criticised by the OIA in another student's complaint to them. If damages were painful to the university concerned, there would be every motivation by the university to implement its procedures in a fair manner

The other aspect that is particularly frustrating to the student, is where a successful outcome at the OIA means that the matter is remitted back to the university for reconsideration. On reconsidering the matter, the university makes the same decision again and issues a new Completion of Procedures Letter. This leaves the student with the unfortunate outcome of another complaint to the OIA. This procedure then becomes circular.

Circular procedure

In light of the High Court's reluctance to intervene in decisions of universities unless the OIA has considered the matter, it is perhaps appropriate for the OIA to consider remedies that would make a substantial difference to the student's current circumstances. In a recent case brought to the OIA, the OIA accepted readily that the university had completely failed to take into account the student's mitigating circumstances when making its decision about the student's progress on the course.

The OIA remitted the matter back to the board of examiners of the relevant course to remake their decision while considering the mitigating circumstances of the student.

The board considered the student circumstances and remade the decision '“ ?in identical terms. The only aspect it amended in its decision was to expressly stipulate that the mitigating circumstances were considered. It then went on to issue ?a new Completion of Procedures Letter.
The student is now faced with at least another six months' delay (and no doubt longer) before he has a further outcome from the OIA.

From a practitioner's perspective, it is open to the OIA to make decisions that fit the circumstances of the case. In a case like this one, it would be appropriate for the OIA to make some comment on whether it would consider the mitigating circumstances, for example, to be of such ?a nature as to go some way to explaining the failure of the student.

If that is the case, this could be ?stipulated in the decision, thereby placing further and additional pressure on the university to make the right decision for the student. This would not prevent the university from rejecting the mitigating circumstances, but would force it to consider very carefully the impact of the mitigating circumstances in light of the OIA's findings on such circumstances.

One further frustration for students is where the OIA has made a decision, the student accepts that decision, the university agrees to implement it, and the university then fails to comply with the deadlines set down by the OIA. For example, a matter that might be remitted back to an internal appeal by the OIA, may take the university a further three to six months to organise. Once heard, a decision could take a further month or so to be reached. This leaves the student in an untenable position.

By the time the OIA has made its decision, the student will often have been out of his or her course for at least a year. It then takes a further few months for the matter to be finally determined so by the time the student returns to the course (if successful) he or she may have been out ?for two and sometimes three years.

Efficient enforcement

In the meritocratic society we live in where education is more and more important, the absence from education can have a significant impact on the student's future. With the regulated professions, such as nursing, midwifery, law, medicine, veterinary nursing '“ to name a few '“ there are time limits stipulated by the regulatory body, within which these courses must be completed. I have come across cases where, by the time the university has made a decision following a successful outcome at the OIA, the decision may be favourable to the student but the student is unable to continue with the course without having to enter a different forum of argument in justifying to the regulatory body the extension of time needed.

Sadly, universities are slow to offer ?their assistance in these sorts of cases ?which then leaves the student completely without remedy.

The OIA has made some very interesting decisions over the years, but the time has come for it to show its muscle. The system is not working as smoothly as one would wish, and with education being the primary objective for so many millions of people in the world today, as a body overseeing decisions by education bodies, the OIA can certainly take a harder line and impose a harsher punishment to ensure matters are dealt with efficiently and to the student's advantage should he or she be successful.

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