Handling complaints in the high fees age

As students grow keener to stand up for their rights over perceived wrongs, is the sector doing all it can to be consistent, fair and prompt when resolving disputes?

June 13, 2013

Source: Cameron Law

Are universities ready for the surge of complaints predicted to come their way once the new generation of £9,000 fee-paying students begin to flex their consumer-rights muscles?

With this year’s undergraduate intake encouraged to demand value for money for higher fees, it is a question that institutions, students’ unions and the sector’s complaints handlers have been thinking hard about.

Students aren’t making complaints for the money. It’s incredibly stressful for them, but they do it because they want a fair judgement

Complaints have been steadily rising for many years, with official objections lodged with the Office of the Independent Adjudicator – the service of last resort for students making complaints – up by a quarter in 2012, according to its annual report, published on 13 June.

The OIA received 2,012 complaints against higher education institutions last year – almost four times the number recorded just seven years ago. Of course, this represents only a fraction of the complaints made by students, who turn to the OIA only if they feel their grievances have not been fairly or adequately dealt with by their universities.

Of the cases closed by the OIA last year, the organisation judged only 4 per cent to be “justified” and 8 per cent to be “partly justified”, while another 6 per cent were settled, often by mediation. Almost 60 per cent were viewed as “not justified”. With fewer than 250 judgements against institutions educating more than 2 million students, some might view the sector as a shining light for other industries, full of happy customers. But the growing problem of student grievances must still be addressed by institutions, particularly as complaints are likely to increase further as the impact of higher fees is felt more keenly, says Rob Behrens, the independent adjudicator and the OIA’s chief executive since 2008.

This will be as much to do with the drive towards a “student-as-consumer” culture as with the financial reality of £9,000 fees, he suggests.

“Higher fees are already having an impact [on the volume of complaints] because they have been talked about so much,” says Behrens. “The culture has changed and people are more aware of what they are entitled to.”

The coalition’s funding reforms are not the only driver behind the rising tide of complaints: the financial climate is also having an impact. In a highly competitive jobs market and with many employers insisting that graduate recruits have at least 2:1s, degree classifications take on even greater significance, and this may lead to an increase in complaints involving academic status and grades. Although the OIA does not intervene in matters of academic judgement, it can investigate some aspects of complaints about examination boards, assessment and mitigating circumstances.

“If the job market is very tight – and particularly when people are seeking professional qualifications – students will want to get the very most out of their university experience,” Behrens notes.

Complaints involving allegations of plagiarism also continue to be an issue with the rise of both online essay mills and sophisticated cheating detection software.

Number of complaints received by the OIA per year

Meanwhile, internet searches have made it easier for disgruntled students to find out about their rights, making them more likely to complain (and further adding to the OIA’s workload). To cope with the rise in complaints, the number of case handlers at the body grew from 35 in 2011 to 43 in 2012, although the average cost of handling cases fell slightly from £1,663 per complaint closed in 2011 to £1,616 last year.

It is clear that social media outlets are also helping aggrieved students find their way to the organisation, and that some students are doing research on Twitter and Facebook about the university staff they are taking to task. For example, one complaints handler told this year’s European Network of Ombudsmen in Higher Education annual conference, held in Oxford in April, how a student had invoked an academic’s colourful Facebook postings in an effort to discredit their defence against a complaint.

Such stories underline how much the world has changed since the OIA was set up in 2004 in an effort to provide a fair complaints system that would help to avoid the costs of lengthy legal proceedings. Back then, many internet users relied on slow dial-up connections, Mark Zuckerberg was a Harvard University sophomore with a big idea and tuition fees in England were £1,150 a year.

With so many significant social and technological changes not to mention developments in higher education in the interim, some experts are asking whether the current regulatory system is robust enough to cope with a new generation of tech-savvy, legally aware student-consumers.

“Most students get only one shot at higher education, so the lack of consumer protection they receive is a scandal,” argues David Palfreyman, director of the Oxford Centre for Higher Education Policy Studies and co-author of The Law of Higher Education. He believes that the payments to students recommended by the OIA so far – which ranged from £150 to £15,000 in 2012 – have been “pretty puny” and provide neither a deterrent against future malpractice nor adequate compensation for students who have suffered mistreatment by their university.

In one recent example, £5,000 in compensation was awarded to a PhD student who reported a supervisor for alleged plagiarism and was “treated less favourably” as a result, culminating in the university imposing disciplinary charges against the student. In another, a master’s student won £3,500 for a lack of adequate supervision that led to the referral of her thesis. But such sums look paltry in light of what is at stake when domestic students rack up debts of £50,000 or more gaining a first degree, Palfreyman contends.

However, he praises a recent decision by the OIA to name universities involved in cases with a “wider public interest application” – a move opposed by institutions, which fear reputational damage.

“Naming and shaming institutions that fail to treat students fairly will have a far greater effect than any of the fines currently imposed,” Palfreyman argues. So far only one institution – London South Bank University – has been named as falling short of good practice in a case in which a student argued that extenuating circumstances had affected her degree classification.

This measure might also help to address a perception among some student complainants that the OIA is biased in favour of universities.

In a survey published in 2010, 60 per cent of complainants believed that their university was not properly held to account by the OIA, while almost half thought the ombudsman was “on the side” of the university. Complainants frequently held the misconception that universities failed to comply with the OIA’s recommendations (in fact, this has happened on only three occasions).

Cameron Law feature illustration (13 June 2013)

“I have absolute confidence in the independence of the OIA, but I can understand why this view exists,” says Rachel Wenstone, vice-president for higher education at the National Union of Students and a board member of the ombudsman.

“The OIA is not about ruling whether a complaint is right or wrong, but making a judgement on whether a university followed its own rules by asking how the decision was reached.”

The volume of complaints may be a less reliable indicator of universities’ performance than the proportion reaching the OIA found to be justified

She adds that eye-catching financial compensation packages for students whose complaints are upheld would do little to change university behaviour.

“Students aren’t making complaints for the money. It’s incredibly stressful for them, but they do it because they want a fair judgement. They would really prefer not to have to go through it at all,” Wenstone says.

The OIA is not always the last port of call for unhappy students, who may also be unsatisfied with its conclusions: since 2004, 40 such cases have reached judicial review, but so far only one has been upheld.

Whether or not all complainants are pleased with the OIA’s decisions, it is of increasing concern that not all students have equal access to such a body in the first place. Student leaders believe that legislation is needed to compel all UK higher education institutions to subscribe to an independent ombudsman – not just public universities in England, Wales and Scotland. (The OIA covers the first two while Scotland has the Scottish Public Services Ombudsman.)

All students attending further education,sixth-form colleges and private providers in mainland Britain plus higher education institutions in Northern Ireland need access to an impartial adjudicator of complaints, too, argues Wenstone.

“It is not acceptable that it is possible…for some [students] to be entitled to independent recourse for complaints and appeals, while others are massively vulnerable to exploitation by unscrupulous or unheeding institutions,” she says.

An independent ombudsman means far more than having somewhere to pass disappointed students on to in the hope they will not sue, Wenstone emphasises.

“It means having to get your own house in order to enable students to have their voices heard when things aren’t as they ought to be.”

Another area in which students may experience inconsistency is in the varying amount of time that universities take to handle student complaints, and action is now being taken to combat delays.

In September, the Scottish Public Services Ombudsman will introduce a standardised complaints-handling process for higher education institutions, which will require all grievances to be registered, investigated and adjudicated on internally by universities within five weeks. No such timetable is in force south of the border, although the OIA has promised to highlight unwarranted delays in its judgements and reflect them in its financial awards to successful complainants. In exceptional circumstances, it will intervene directly to investigate complaints.

The need for speedy resolution was highlighted in 2011 in the coalition’s higher education White Paper, Students at the Heart of the System, which called for greater emphasis on early resolution and asked the OIA to take the lead in encouraging improvements.

So what are universities doing to prevent complaints reaching the OIA in the first place and to stop problems escalating into full-blown confrontations, rancour and resentment?

At the University of South Wales, academic staff trained as “student conciliators” have had some success dealing with student grievances, while recent graduates have taken on such roles at the University of Bedfordshire. At Teesside University, an Ombuds Office acts as a clearing house for complaints, organising meetings between the relevant parties, while Plymouth University trains volunteer staff to run a student mediation service.

Some might suggest that such a patchwork of models and procedures would be condemned in any other industry. The OIA recently consulted on the idea of installing a local ombudsman on every university campus – a model found in some countries – but concluded that this would replicate functions already carried out by it, students’ unions and student services centres. However, the body is now developing a sector-wide code of practice, albeit a voluntary one, which aims to ensure the early resolution of cases.

The move has been made more difficult by the scrapping of last year’s higher education bill. “There is not going to be legislation, so I have to operate within the powers of the 2004 Act,” says Behrens. Nevertheless, he believes he already has “enough powers and authority to do enough to turn round the rising volume of complaints”.

To this end, the OIA is also seeking to implement agreed time frames for the handling of complaints by universities in England and Wales via a “good practice framework” supported by the NUS, the Quality Assurance Agency and the Association of Heads of University Administration.

As for cases reaching the OIA itself, on average it takes the ombudsman 228 days to bring them to a conclusion. The organisation’s annual report deems this figure to be too high, so the body has set itself a target for 2013 of 85 per cent of cases received being resolved within six months.

The OIA’s subscription model is changing, too. From next year, the fee universities pay to participate in the OIA scheme will be based in part on the number of complaints received by the ombudsman – an extra incentive for universities to deal with complaints internally.

Cameron Law feature illustration (13 June 2013)

The results of the pilot projects at Teesside, Bedfordshire, Plymouth and South Wales will inform the good practice framework.

Encouraging universities to learn from one another is also an objective behind another recent development. Last year, the OIA began publishing an annual letter to each university on its website, detailing how many complaints had been made against the university, how many of these had reached the OIA, and how the number of complaints compared with those for other institutions of similar size.

In theory, the letters could highlight complaint “hot spots” and places where satisfied students have few gripes with their university, offering a guide to those with the happiest students. For instance, at Newcastle University in 2011, 415 “completion of procedures” (COP) letters, which confirm that students have exhausted institutions’ internal complaints processes, were issued. The University of Bath, another institution in the 12,000-20,000-student category, issued just 46.

Other institutions of similar size include Lancaster University (which issued 53), the University of Reading (37), the University of Bedfordshire (31) and Staffordshire University (18), with 85 complaints being the average for that band.

Among the institutions registering higher-than-average numbers of complaints in the 20,001-30,000 band were London South Bank University (292), Birmingham City University (348) and the University of Salford (494).

But the OIA emphasises that volume is not necessarily a reliable indicator of performance. A better guide might be the proportion of complaints reaching the ombudsman that are found to be justified, it argues – in which case, none of the universities mentioned above would be viewed as outliers to the national average.

Invited by Times Higher Education to comment on the issue, universities gave responses that highlight a fragmented, non-uniform approach to complaints handling across the sector, which makes comparisons difficult.

Newcastle says that just 19 of its 415 COP letters involved complaints against the university (only three were found by the OIA to be wholly or partly justified), with most relating to student disciplinary matters such as noise disturbance.

Liverpool says its policy of issuing COP letters to all students who have completed its internal complaints procedures means that its complaints average is higher than others that issue such letters only upon student request. Its proportion of complainants progressing to the OIA is lower than the sector average, it adds – one in 19 as opposed to one in seven.

Birmingham City says its figures include cases involving mitigating circumstances and that its highly accessible complaints system shows “a strong student engagement culture” that could also explain the higher numbers.

But such explanations fail to convince students’ unions, which are often the first port of call for students who have concerns about their institutions or courses.

“I have heard practitioners in this field suggest that student complaints are a positive thing because they are a form of student feedback and an example of students making their voices heard,” says Wenstone. “That’s a rather complacent attitude to what is inevitably a very stressful and unpleasant experience for most students.

“If a student feels the need to make a complaint to make their voice heard, then either the institution or the students’ union has seriously dropped the ball, or the relationship between those two bodies is so bad as to be dysfunctional.”

So, with a number of developments on the horizon, will the OIA be in a position to withstand the surge of complaints expected in the high fee era? With strong support from universities and students’ unions for the current set-up, Behrens believes it will hold firm. The OIA has already successfully headed off a proposal in the 2010 Browne review that the organisation should be merged with other organisations and absorbed into a “super-quango”.

“We are independent and well-resourced, and universities have implemented our decisions rigorously,” Behrens says. “We have made more than 10,000 decisions so far and universities have been non-compliant very rarely.”

But he warns that the sector is “at a crossroads” in complaints handling, and that the onus is now on universities to do all they can to prevent students knocking on the OIA’s door: “Earlier resolution is better for all parties.”

And while other countries have adopted different models for handling student complaints, such as the campus ombudsman system found in the US and Australia, it seems that some sectors look on national adjudicator systems with envy.

Sally Varnham, associate professor of law at the University of Technology, Sydney and a campus ombudswoman, says: “Despite many universities in Australia having internal ombuds, there are still a considerable number of complaints to external bodies – state and federal ombuds, tribunals such as anti-discrimination and administrative review bodies, and, of course, courts.

“That is why we [Australian ombuds] have argued for an equivalent body to the OIA over here – there is such a mishmash of places students go. If complaints are going to go outside the university, one expert tribunal such as the OIA would be preferable: it could identify systemic failures and recommend best practice.”

Wrong prescription

Postgraduate students are more likely than undergraduates to complain to the OIA.

One doctoral candidate appealed the outcome of his viva on the basis that the examiners did not appear to understand his subject.

Because he was enrolled at a college that could not award PhDs at that point, his doctorate was to be awarded by a university. But during the four years the student was at the college it obtained those powers.

On examining the university’s regulations it became clear that the university was confused about which procedures applied in this case and did not comply with its own regulations requiring examiners to have a particular profile of academic and examination experience.

The OIA found the student’s complaint to be justified and asked the university to offer him a further year at the institution with supervision, followed by a fresh first submission of his thesis.

Outcome: Justified
Source: OIA Annual Report 2012

Travel advisory

Partnerships in the sector can be complicated.

One case handled by the OIA involved a student who embarked on a course of study delivered as part of a partnership between a university and a further education college.

The university and the college were in different towns. The university’s partnership with the college ended and teaching and facilities were moved to the university site, with some classes rescheduled from weekday evenings to Saturday mornings.

In her complaint, the student cited the transfer of teaching and facilities as mitigating circumstances in an appeal to the university examination board.

The OIA was not provided with evidence that the university consulted students about the changes. This denied the complainant a proper opportunity to consider options such as withdrawing, applying for transfer to a suitable course elsewhere, or investigating whether she could make arrangements that would make studying somewhere else more convenient for her.

The OIA also found no evidence that the examination board looked at whether the rescheduled teaching or increased travel demands would affect the student’s ability to access library and support facilities or the time available for study.

The OIA concluded that the university’s management of the break-up with the college did not take full account of the needs of students and that the university did not give proper consideration to the extenuating circumstances that the student drew to its attention.

The OIA recommended that the student be granted an appeal and financial compensation of £2,500.

Outcome: Partly justified
Source: OIA Annual Report 2012

Visa woes

Non-European Union international students are proportionately more likely to bring complaints to the OIA, while the group of students most likely to complain are those taking courses leading to professional qualifications.

In one OIA case, a non-EU international student was studying for a professional qualification validated by a university but delivered by a partner college. Before starting her studies, the student confirmed with the university’s partner that she would be sponsored for immigration purposes.

The student’s visa came up for renewal in her third year. At this time the relationship between the university and its partner college was breaking down. The college in question declined to issue the confirmation of acceptance for studies letter that the student needed for her visa.

The university then told the student it was unable to sponsor her for a programme offered by the college, although it subsequently took steps to ensure that other international students could complete their studies.

The student complained to the university and when her complaint was rejected took her case to the OIA.

The OIA found that under the terms of the memorandum of cooperation between the university and its partner college, the programme remained the overall responsibility of the university.

The OIA determined that the university had acted unreasonably in failing to assist the student with her immigration sponsorship. It recommended an award of £15,000 to cover some of the fees she had paid at the college, legal fees for advice on her immigration status and compensation for anxiety and stress.

Outcome: Justified
Source: OIA Annual Report 2012

Not as advertised

The OIA says competition among universities to attract students through prospectuses and marketing has led to student claims that they have been misled.

In one case, a student on a specialist MBA said that not all the industry-specific modules promised were provided. The student was awarded a partial refund of fees and compensation totalling £7,500.

Outcome: Partly justified
Source: OIA Annual Report 2012

Duty of care

The OIA says that there is room for improvement in the way universities take into account the needs of students with disabilities.

It considered a case involving a student suffering from depression, which became severe in her final year.

She submitted several mitigating-circumstances claims as she was failing to meet academic deadlines for her dissertation and other course modules.

At the end of the year the student made a further submission and provided a medical letter stating that her mental health was so impaired by her depression that she had been in no fit state to attend the final months of her course.

The university rejected the student’s mitigating-circumstances claim on the basis that it was retrospective and that she had attended the university and submitted some work during the period in question.

The OIA considered that it was unreasonable for the university to consider the student’s claim to be retrospective given that she had brought her mental health issues to its attention at several points during the course of the year.

It also criticised the university for failing to consider whether the student might be a disabled person under equality legislation and whether it might therefore have specific duties towards her.

The OIA recommended that the university reconsider her appeal for mitigating circumstances.

Outcome: Justified
Source: OIA Annual Report 2012

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