Fear over legality of complaint watchdog

March 26, 2004

The student complaints ombudsman, which opens for business next week, could breach human rights laws, experts have warned.

University law professors and campaigners said this week that the scheme to investigate and mediate student complaints was a "wasted opportunity", blighted by a series of serious shortcomings that would leave students to negotiate "a legal quagmire".

The Office of the Independent Adjudicator opens on Monday, three years after ministers first called on vice-chancellors to set it up and six months after it was promised in the government's higher education white paper.

A key concern is that the OIA's hearings are unlikely to conform to article six of the European Convention on Human Rights, which guarantees the right to "a fair and public hearing".

The OIA's website makes clear that its procedures are "informal".

"We will generally review a complaint based on information provided to us by the parties," it says. "We are not like a court. We expect to decide most complaints without the need for face-to-face meetings or hearings."

Tim Birtwistle, a law professor at Leeds Metropolitan University who has advised the European Network of Higher Education Ombudsmen, said: "I'm at a loss to understand this wasted opportunity. Article six of the human rights convention enshrines the right to a fair hearing, and this was a key criticism of the old system.

"How can both sides put their arguments if this is going to be just another paper exercise? And there is the question of unequal arms, with universities wheeling out their teams of experts."

Michael Reddy, assistant adjudicator at the OIA, said: "We are not ruling out oral hearings and we may have to have them, but it is essentially a review scheme. Most who come to us will already have been through an oral hearing at their own university and, ultimately, people can still go to court beyond us."

He said the OIA would be able to call for the refunding of student fees and even offer compensation for wasted time, like the courts. It could also tell universities to allow students to retake courses or to change their procedures.

Currently, students in post-92 universities can take their complaints to the governing body before turning to the courts. In old, chartered universities, the final arbiter of complaints is the visitor - usually a senior royal or church figure who acts in a quasi-judicial capacity to the exclusion of the courts.

The higher education bill is expected to place the OIA on a legal footing.

But until then, students must complain to the visitor, who may seek advice from the OIA. The OIA will provide "a letter of advice" to the visitor, "who will then issue his or her decision", the OIA says. "There is no appeal to us from the visitor's decision," and the OIA's advice letter will not be sent to students.

Mr Reddy confirmed that several universities with visitors had chosen not to opt into the scheme while it remained voluntary.

Janet Wilkinson's husband, Kevin, has just reached a settlement with Aston University over its failure to find him a PhD supervisor. After a long legal struggle, backed by Cherie Booth QC, the visitor's jurisdiction was declared unlawful under human rights laws. Ms Wilkinson said: "This independent adjudicator is a sham while the visitor is in place."

phil.baty@thes.co.uk

OIA: THE FACTS

  • The OIA offices will have ten staff - the adjudicator, her deputy, four assistant adjudicators and administrative staff
  • It will be funded from subscriptions of several thousand pounds each from universities, according to their size
  • It has already been receiving several inquiries a day from students
  • It will not look at matters of academic performance or consider any case that has been to court

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