Rob Behrens: role of HE ombudsman ‘now accepted’ by universities

The outgoing independent adjudicator talks to THE about eight years at the OIA and the future of sector regulation

March 17, 2016
New Zealand All Blacks and Australia Wallabies players, Rugby World Cup final 2015
Source: Corbis
Impartial arbiter: at the Office of the Independent Adjudicator, ‘we enable universities to draw the line’

When Rob Behrens became independent adjudicator for higher education eight years ago, there was, he recalls, “great scepticism” about the post.

English and Welsh universities were unconvinced about the value of an ombudsman for student complaints and feared infringement on academic sovereignty.

Now, as he prepares to step down as chief executive of the Office of the Independent Adjudicator, Mr Behrens told Times Higher Education he believed that the doubters had been won over.

“We have argued for an ombudsman service which is genuinely engaged and we have demonstrated that that is of great use to the sector,” Mr Behrens said. “We deal with difficult cases that universities have sought their best to resolve and haven’t resolved to the satisfaction of the complainant; we enable universities to draw the line.

“Our role of ombudsman of last resort is now appreciated and, fundamentally, we have never sought to infringe on the academic freedom of a university.”

Under Mr Behrens, the OIA has changed dramatically. For the first time, it has wielded its ultimate sanction of finding universities non-compliant with its decisions, and the number of complaints that it handles each year has more than doubled.

Mr Behrens argued that much of the increase was down to growing awareness of the OIA among students but agreed that, following the introduction of tuition fees, it was not surprising if students had used the complaints system as a way of “seeking to further their interests”.

Nevertheless, academics who argued that lecturers had lost “sovereignty” because of the emergence of students as a “service user” are wrong, Mr Behrens said.

“What the rhetoric of the ‘student as customer’ has done is to alert universities to the urgency of looking very carefully at what they are promising to students and what they are delivering, and making sure the two things are aligned,” Mr Behrens said.

In terms of student complaints, he said he did not subscribe to the idea of a ‘golden age’ of universities in the 1950s and 1960s, adding that in the past students had to rely on the visitor system, which gave peers, bishops and often the Queen quasi-judicial authority to rule on disputes. 

Mr Behrens described this as a vestige of feudalism. “It didn’t treat students fairly because it wasn’t transparent and it wasn’t independent, and students were intimidated by that,” he said. “That time is over; now there is an independent scheme to which they can go and they see that it is transparent. All that is excellent.”

However, he is not complacent. While the total number of complaints submitted to the OIA remains proportionately low, the fact that about one in four are consistently found to have merit shows that there is “no reason to let up the scrutiny”, he said.

The OIA is braced for an “influx” of complaints after the incorporation of alternative providers into its remit, institutions that Mr Behrens described as “not a particularly overregulated part of higher education”; and the Green Paper makes clear that the government is content to allow universities to fail, a scenario that could put the interests of students at risk.

All this pointed to a need for student protection legislation, Mr Behrens said.

“Clearly there is an issue where we have a more marketised system with institutions going out of businesses and there is a hole at the moment for students in those institutions in terms of the protection of their studies,” he said. “It is only equitable that that is addressed…I’m very clear that the present regulatory framework needs revision, and it needs revision through legislation.”

Under its existing legislative plans, the government is planning to create a new lead regulator, the Office for Students. Mr Behrens said that he would welcome the creation of a set of regulatory institutions “that can work effectively together and don’t seek to batter each other”, highlighting that existing institutions, while “pursuing what they believe to be the public interest”, shared “no common understanding of what the public interest is”.

Nevertheless, Mr Behrens said that the temptation to incorporate the OIA into a new super-regulator, as was suggested by the 2010 Browne report, must be rejected.

“There is a conflict of interest between adjudicating complaints on one hand and taking judgements about funding and the quality of courses on the other,” Mr Behrens said. “What we have done in the last eight years is demonstrated that our independence is a key part of our ability to make criticisms of universities.”

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