Handling Complaints in Small and Specialist Institutions: the Role and Remit of the OIA Susanna Reece Deputy Adjudicator 29 June 2010

Establishment of the OIA Higher Education Act 2004 Transitional scheme: March - December 2004 Designated operator of student complaints scheme in England and Wales from 1 January 2005 Replaced existing Visitor arrangements Provided for independent review across the sector Common system for all HEIs in England and Wales 1

Structure and Operation of the OIA OIA Board has 6 Directors nominated from the HE sector: AHUA, CUC, GuildHE, Higher Education Wales, NUS and UUK Remaining 8 Directors are independents, including the Chair, Ram Gidoomal, who replaced Prof. Norman Gowar in 2009 Board has duty to preserve the independence of the Scheme and does not get involved in individual complaints Ruth Deech was the first Independent Adjudicator. Rob Behrens was appointed in May 2008 upon her retirement. Current Organogram is in the OIA’s 2009 Annual Report Pathway Review of the Scheme – report published Feb

Some Statistics (Annual Report 2009) 1007 complaints in 2009, a 12% increase on 2008 and a 37% increase on (537 cases in 2005, 586 in 2006, 734 in 2007 and 900 in 2008). 811 of these were found to be eligible. A tiny percentage of the student body but a capacity challenge for the OIA at a time of public sector financial constraints when complaint numbers are likely to rise Pathway Report Implementation Groups are looking at processes, remedies, publication and funding 3

Some Statistics continued Vast majority of cases (64%) relate to academic status Most common subject areas are medicine-related and law (240) 39% of complainants are postgraduates, compared to 23% of the student body as a whole 65% of complainants are over 25 75% of cases found not justified in % Justified and 13% Partly Justified 24 cases from GuildHE institutions – small number of other cases where another HEI is the awarding body 4

OIA Scheme and Remit The OIA can look at any act or omission of an HEI (not AJ) The OIA Scheme Rules set out the approach the OIA takes to its role and remit. The current version is dated May The OIA is a review body - students must first have completed an HEI’s internal procedures (COP Letter Guidance May 2010) The approach taken is two-fold: has the University correctly applied its regulations and followed its procedures? Was the University’s decision fair in all the circumstances? Court of Appeal ruling in the case of Siborurema (2007) 5

Academic Judgment/Professional judgment The OIA cannot interfere with the operation of an institution’s academic judgment: Part 2 of the Higher Education Act 2004 Our Rule 3.2 states that we do not cover a complaint to the extent that it relates to a matter of academic judgment Academic judgment is a decision about scholarship that only an experienced academic can make Professional judgment is a decision about professional standards that only an experienced professional can make Plagiarism and fitness to practise: we look at procedural issues and fairness not the underlying academic or professional decisions 6

OIA approach and process 1 The OIA’s approach is not the same as a court’s. We don’t make legal findings, although we have regard to law and guidance (see disability) Our normal approach is to conduct a paper review of the complaint based on what has been considered within the HEI’s procedures We have not found it necessary to hold oral hearings, although we have the power to do so (Budd JR 2010) 50% of cases are resolved through our Fast Track procedure (without full review). A Preliminary Decision is made, upon which comments may be made by either party. This is followed by a Formal Decision Letter unless the representations made lead us to conduct a full review. 7

OIA approach and process 2 After full review, a Draft Decision is issued, followed by a Formal Decision. At Draft Decision stage the parties may comment on: Factual or material inaccuracies Practicality of any recommendations made Recommendations may be made where a complaint has been upheld in whole or in part In other cases we may make Suggestions or Observations Compliance with our recommendations is strongly encouraged – all HEIs have complied so far. We monitor compliance and will ask for evidence. Higher Education Advisory Panel 8

Some general issues that have led to Justified or Partly Justified outcomes after an OIA review Unreasonable delay Failure to follow procedures/regulations Failure to have regard for principles of natural justice (duty to act fairly) Student not made aware of all evidence to be considered. No proper records kept Guidance and regulations/procedures not clear Not having proper regard to student’s disability 9

Common Issues: Procedural Fairness Natural Justice – duty to act fairly Nobody shall be a judge in his/her own cause Hear the other side Reasons for decisions Requirement of reasonableness 10

Common issues: disability OIA approach: not the same as a court’s. Looking to see that an HEI has an understanding of its obligations and can demonstrate that it has considered and applied them appropriately and fairly. Some helpful questions: Is the student disabled? If so, what provisions are we now applying to him? Do those provisions place him at a substantial disadvantage? What could be done to prevent that disadvantage? Would it be reasonable for us to take those steps? 11

Common issues: disability disclosure HEIs must encourage disclosure Responsibility on student to disclose Late disclosure Dyslexia Mental health issues QAA Code: on3/Section3Disabilities2010.pdf on3/Section3Disabilities2010.pdf 12

Current Issues: Placements Placement arrangements – what will the OIA look at? Memorandum of agreement Complaints handling arrangements Clarity about responsibilities and procedures What happens when things go wrong on a placement? Disability arrangements Mentoring and learning outcomes Fitness to practise 13

Current Issues: Informal Resolution Preference for earliest possible resolution at local level Local resolution encouraged Is it compulsory When is it inappropriate? Recognise when informal approaches are not working Who decides? Time scales? Informal does not mean unrecorded Potential to use mediation or other means of resolution Capturing complaints information – good practice and QAA code 14

Current Issues: Complaints Handling Relationship between complaints handling and disciplinary processes – staff/students Anonymity – of complaints/complainants Concluding remarks on good practice: Encourage students to raise issues constructively and at the appropriate time Signpost processes and have clear pathways Deal with issues in a timely manner Accept that some cases will go all the way 15