Universities don’t fear the OIA. It would better if they did

Beefing up the independent adjudicator’s role would benefit the sector and students alike, says Matthew Wyard

July 28, 2016
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Given all the talk about student consumers and the coming transformation of the Higher Education Funding Council for England into the Office for Students, it seems odd that there are no plans to beef up the Office of the Independent Adjudicator.

Times Higher Education recently reported that the number of complaints to the OIA fell to its lowest level since 2011, largely due to greater efforts by education providers to resolve complaints internally (“Universities told to pay record compensation to students”, News, 9 June). That is good news. But the fact remains that the number of complaints has risen every year except two since England and Wales’ independent complaints review body was established in 2005.

Part of the problem is that, currently, the OIA is not feared by universities, particularly in relation to the remedies it imposes. In 2015, the total compensation it awarded to students – £485,000 – was greater than ever before, and the OIA’s annual report lists several significant awards, including one of £40,000 and another of £25,000. In total, 20 complainants in all received more than £5,000. But that means that the other 210 received an average of less than £1,500. With a 2010 estimate by the National Union of Students putting average annual student expenditure at more than £22,000, such small sums cannot begin to compensate someone who has been, for instance, forced to repeat a year.

Since universities are well aware of the tentativeness of the OIA’s remedies, an adverse finding represents nothing more to them than an annoying waste of their administrative time. If the OIA made all of its justified complaints public or, as its rules permit, required appropriate financial remedies that genuinely reflect the losses suffered (going well beyond discretionary awards for “inconvenience and distress”), it would pose a genuine threat to universities and their reputations. Consequently, universities would be more proactive in resolving complaints before they are submitted to it.

Universities’ reluctance to resolve complaints is further compounded by their apparent belief that accepting liability for a mistake in any way will result in the student then utilising that acceptance to sue them in the courts, leading to reputational damage. As a result, internal complaints are fiercely defended and students are often blamed for their problems without any proper investigation of the underlying issues; this continues at the OIA stage of proceedings.

The paranoia about reputational damage is such that when a university is sued, cases rarely get past mediation without the student being offered a financial settlement that far outweighs what they would be likely to be awarded by a court, on condition of their signing a confidentiality agreement.

Yet, in my experience, the reality is that students don’t want to drag their universities’ reputations through the mud; they just want their degrees. If universities bore this in mind when adjudicating internal complaints, they would be more open to accepting criticism and finding in students’ favour. This would lead to better investigations and fewer complaints being submitted to the OIA.

There is also a distinct lack of understanding within universities about the fact that their relationship with their students is governed by contract, and that this contract imposes obligations on them to comply with their own policies and procedures. When they fail to do so, they are open to challenge for procedural irregularity: a ground that often finds favour with the OIA. These policies and procedures are put in place to ensure that the relationship between a university and its students is understood, and to provide protection for both parties. Greater awareness of them would surely result in a better educational experience.

Complaints will never be eliminated entirely, of course. It is inevitable that in a mass, marketised higher education system, some students will feel short-changed. But until universities accept – or are required to accept – the wisdom of approaching complaints in a more conscientious and realistic way, annual decreases in the OIA’s workload are likely to remain few and far between.

Matthew Wyard is a lawyer working in the specialist education department of Sinclairslaw.

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