Blake Lapthorn's student complaints and disciplinary issues seminar

INDEPENDENT ADJUDICATION OF STUDENT COMPLAINTS An Update Ruth Deech May 2010 1

Establishment of the OIA • Framework set out in Higher Education Act 2004 • Designated operator of the student complaints scheme • All universities in England and Wales covered by Scheme Rules from 1 January 2005 and must have compatible procedures in place 3

How is the OIA constituted? • Independent body • 35 full and part time staff, 144 universities covered • Higher education sector represented by 6 nominated Directors: one from each of UUK, Guild HE, CUC, AHUA, HEW and NUS • Plus 8 independent Directors • The Independent Adjudicator Robert Behrens 4

Overall Aims • Simple speedy procedures • Resolve on campus if at all possible • Consider a “campus ombudsman” • Apply the principles of natural justice in hearings • Tell students about procedures and the OIA • Monitor, review and report 5

What does it do? • OIA reviews complaints to see whether they are “justified”: – Did university/college properly apply regulations and follow procedures? – Was university’s decision reasonable in all the circumstances? • OIA also makes good practice recommendations 6

Procedures • Realistic time limits with cut off times but some flexibility • Inform students (also changes) through handbook, website, union • Point to OIA and give prompt COP letter • Realistic remedies (change to course, apology, compensation, fresh re-take, rehearing), placing student in the position they should have been in 7

Dealing with complaints 8

Bringing a complaint to the OIA • Students must first exhaust University’s internal complaints procedures • University must issue a Completion of Procedures (COP) Letter • Students have 3 months to come to the OIA from the date of the COP letter 9

What OIA will look at • Complaints about acts or omissions of university/college e.g. – Welfare issues – Contractual issues – Breach of HEI procedures – Discrimination – Poor practice – Disciplinary matters 10

What OIA won’t look at • Academic judgment: a matter where only the opinion of an academic expert will suffice, eg degree class, assessment, fitness to practise • Admissions • Matters before the courts • Employment cases • No case to answer 11

Who can apply? • Registered students or former registered students of a university • Includes students at FE institutions offering courses leading to an award from a university 12

Types of Recommendation Refer back to university for review • Apologise • Better considered in another forum • University to pay compensation • University to take some action • University to change its internal procedures 13

After OIA Review • University is expected to comply, and all decisions accepted so far • Non-compliance will be reported to the Board/publicised in the Annual Report • Non-binding on students unless offer accepted 14

Resolve on campus • Problems are allowed to escalate • Campus ombudsman; one stop confidential shop, informal, access to hierarchy – US, Australia • May be first or last stop • Informal, mediating, good to talk • Help overseas students “save face” • Independence important • Not suitable for all situations • Same job, different title – Dean, Proctor? 15

Some Statistics 2008 • Helpdesk dealt with over 900 enquiries • 900 applications form received • 734 applications were eligible • Closed 630 cases, averaging 20 weeks from acceptance • Almost half were fast tracked 16

Applications received 2006-8 • 2006 – 586 • 2007 – 734 • 2008 - 900 17

Subject Matter of Complaints • Academic Appeal/Exam Results/Degree – 65% • Contract (service issues) – 15% • Discrimination & Human Rights – 6% • Disciplinary Matters – 6% • Welfare & Accommodation – 2% • Other – 4% • Financial – 2% 18

Complaints by course type • Business administration 148 • Subjects allied to medicine (nursing) 116 • Law 115 • Social studies 72 • Arts and Design 55 • Education 44 • Medicine/Dentistry 42 • Engineering 31 • Computer science 29 • Biological sciences 27 • Architecture 21 • …. • Agriculture 4 19

Who are the complainants? • 439 females, 461 males • Undergrad 529, doctoral 69, other grad 286 • Under 25 – 302, 25-39 – 336, 40+ 228 • Home 601, EU 72, nonEU 201 • British 578, Indian 31, Chinese 25, Pakistani 21, Greek 17, Nigerian 16, Irish 14, US 13, Mauritian 10, Italian 9 20

Outcomes 2008 630 complaints closed • 41 Justified • 103 Partly Justified • 450 Complaints Not Justified • 23 Settled • 13 Withdrawn • £93K+ Total Compensation awarded in 2008 21

Postgraduate Research Recommendations • Compensation for poor supervision / delayed progress • New viva required for student who was able to demonstrate possibility of bias • Opportunity to re-submit as first submission when there was poor procedure around a viva • Compensation for delay and lack of information about grounds for termination • Fresh appeal when examiners not suitably qualified under regulations • Referral back to university when external examiner expressed concern about quality of supervision 22

Taught Master’s courses outcomes • Compensation awarded as University failed to identify & assist a student after he advised the University of his medical condition. • Compensation as the University failed to enrol student correctly causing him great confusion and a period of disadvantage. • £3500 to student whose thesis referred; student had no annual review, no record of supervision, no induction, supervision inadequate 23

Taught Master’s courses More outcomes • 75% of fees refunded, plus 50% of loan to be paid and compensation for inconvenience suffered when a course finished 6 months later with 95% of the promised tuition not provided. • Compensation awarded as part of a refund of fees and for loss & inconvenience for numerous problems encountered on a course. • Matter referred back to the Board of Examiners for reconsideration after the University lost the student’s examination script and she had to rewrite. The Board of Examiners was not aware of this. 24

The Law 25

Attitude of Courts • Courts (and OIA) resist claims based on academic judgment • Courts express enthusiasm for ADR and decisions by expert bodies • Need to familiarise themselves with OIA • Injunctions and judicial review against the university to enforce obligations 26

Legal issues • Natural justice principles: • “Bias”, hear both sides, reasons, notice of charge • Availability of legal aid to students to challenge OIA and universities • Disclosure of documentation under FOI • Range of sanctions 27

Judicial Review of the OIA • Siborurema case Court of Appeal 2007 • The OIA’s decisions may be judicially reviewable • The court would interfere only on the narrowest of grounds • OIA review approach confirmed by the court • Appeal on substance dismissed 28

Arratoon Case • [2008] EWHC 3125 • A failed his teaching placement 3 times, complained about institutional racism, breach of tutors’ duty of care and poor academic judgment • Complaint to OIA turned on whether university had completed internal appeal; A was awarded £75 for lack of clarity and legitimate expectation of 22 days’ duration • JR failed. Court followed Siborurema, emphasised discretion and expertise of OIA, no interference unless OIA perverse or irrational 29

Budd case [2010] EWHC 1056 • Student challenged mark, thought there must be error or wrong script; sought JR: • Alleged OIA should have seen script, held full merits review, granted oral hearing (Art 6 ECHR), challenged its independence • Court refused JR, no right to oral hearing, discretion of OIA not fettered, OIA independent of parties and pressure; can decide how far to investigate, no right to see script, exempt under DPA 30

More litigious • 2 recent High Court cases criticised students for going to court rather than OIA • But more students are complaining to the OIA and going to court as well • Courses more expensive, students older and from overseas, more at stake • Universities have not caught up with procedural fairness 31

Learning from complaints • Monitor – track complaints including time and equal opportunities information • Review and evaluate – effectiveness, staff training and guidance, priorities and timing • Report to governing body • Seek feedback from students • Publish information about complaints 32

Fitness to practise • Medicine • Veterinary • Nursing • Social care • Dental surgery • Sports studies • Psychology • Teaching • Physiotherapy • Community justice • Counselling • Clinical criminology 33

Student teacher lacked self control • Student teacher on placement was frequently abusive to teachers in front of children • An FTP panel was set up - included school representatives and a student union representative • Panel heard evidence & found that student had poor self control and was unable to accept constructive criticism • Concluded that he was unable to meet GTC standards and recommended withdrawal from course • Student complained about unfair treatment • OIA did not interfere, because a matter of academic judgement 34

The Pathway Project • In 2009 the OIA consulted 140 universities, students’ unions, students and interested individuals. Report published Feb 2010. • Past complainants (240) were surveyed. • They thought universities took too long to settle complaints and procedures difficult, disappointed by result • Did not think university would obey OIA 35

Recommendations for the future • Might extend to private degree awarding bodies • Forms and COP letters should be clearer • Annual returns from universities about number of complaints • Maybe complainant should meet adjudicator • More use of fast track procedure • Build up electronic bank of all university regulations • More regional seminars • Produce good practice guides 36

Teaching and learning 37

Future Issues • Are we looking after and preparing overseas students? • Language difficulties and cultural expectations • Dyslexia notification and adjustments • Fitness to practise and professional placements • Too legalistic – judicial review and lawyers 38

Student Legal Issues • Bursaries – reliance on the promise, continuation, set off against debt/rent • Bursary regulations, including complaints • Provision of and standard of accommodation, eviction law • Health and safety – field trips, food, labs • References; must provide fair and accurate one, for many years 39

Contact • By post: – Fifth Floor,Thames Tower, Station Road, Reading RG1 1LX • Tel: 0118 959 9813 (ask for Helpdesk) • Fax: 0118 955 9099 • Online: www.oiahe.org.uk • Email: enquiries@oiahe.org.uk 40

Student discipline How to avoid the pitfalls by having the right structures in place Stephen Murfitt

Student discipline Contract Focus - A matter of process Lack of High Court Precedents

Three considerations Compliance with HEI own Rules Rules of Natural Justice Article 6 European Code of Human Rights

Rules of Natural Justice Two basic Rules: (i) No person is to be the Judge in his own cause (ii) No person is to be condemned unheard Therefore rules concerned with the manner in which the decision is taken rather than with whether or not the decision is correct Test is procedural fairness or a general duty to act fairly Applies to Committees of clubs, political parties, trade unions, professional bodies and academic institutions exercising functions of a disciplinary or similar nature Glyn v Keele University 1971 2AER 89

Article 6 ECHR In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law… R (on the application of G) v Governors of x School (y City Council) 2009 L ER 799

Investigations Separation between Investigation and Decision body Flanagan v University College Dublin 1988 IR 724 R (on the application of Carnell) v Regents Park College and the Conference of Colleges Appeal Tribunal (7 April 2008) Suspension

Misconduct How widely can you define misconduct? Specific Misconduct: criminal convictions Geography Reputation?

Pre-hearing Charge Statements of fact Documents Refusal to engage – Service requirements R (on the application of Peng Hu Shi) v Kings College London (9th April 2008)

Hearing Adversarial or inquisitorial? Representation: R v Governors of X School 2009 LGR 799 Procedure: R (Carnell) v Regents Park College and CCAT (7 April 2008) Standard of Proof Burden of Proof Evidence – hearsay – relevant

Hearing (II) Private or public? Delay Absence of Student

Giving reasons Nash v Chelsea College of Art and Design 2001 ALLER 133 Gupta v General Medical Council 2002 1 WLR1 Southall v General Medical Council 2010 ALLER “Fairness requires reasons to be given”

Sanction Proportionate Punishment/Support

Appeal Appeal Committee Separation

Healthcare students Higham v The University of Plymouth (18 July 2005) Fitness to Practise and public safety considerations Separate rules Separate regime Guidance: GMC; GDC and NMC

Conference of Colleges Appeal Tribunal Composition: Three persons. President a Lawyer Preliminary Relief: President Preliminary Hearing Within 14 days of the application being of Panel only: received. Process: “The Chairman, the President and the Panel shall have discretion as to appropriate procedure. In all or any of their activities each shall be guided by the principles of natural justice” (June 2005)

Judicial Review Refused when adequate alternative remedy exists OIA adequate remedy? R (on the application of Carnell) v Regents Park College and the Conference of Colleges Appeal Tribunal (7 April 2008) OIA: Judicial Review – R v (Siborurema) v OIA 2008 ELR 209 – R (Arratoon) v OIA 2009 ELR 186 – 15 JR Applications to the end of 2008

Conclusion Comprehensive code or rules of discipline: Set of tools for the administrator of the process Assist the decision making body Saves time money and resources Protects the Appeal position

Student civil claims: how to avoid them Christopher Alder

Student civil claims Civil action, such as: – student contract – quality/nature of tuition Clark v Uni Lincolnshire and Humberside [2000] 3 All ER 752 Buckingham v Rycotewood (unreported) 28 Feb 2003 Warwick Crown Court – property/accommodation – libel – plagiarism? – negligence: professional/academic negligence – Phelps v Hillingdon LBC [2000] All ER (D) 1076 educational malpractice personal injury – Tuttle v Edinburgh [1984] SLT 172

“The empowered student consumer” Increased number of civil actions Cultural – the age of consumerism – service industry / value for money Financial – commitment – parental – insurance funding Expectations – motivation – increasing overseas students – student demographic

Reducing the risk of litigation 1. Preventative action audit student contract audit academic / non-academic complaint procedure 2. Robust and fair procedure proportionate accountable – justification of decision and be subject to scrutiny consistent transparent targeted 3. Engagement 4. Awareness consumer focus – cultural alignment

New ideas? Transparency from the outset – involve students in complaints process – greater communication? – seek feedback Internal dispute resolution – ADR – mediation – expert determination – conciliation / facilitation – Insurance? External appeal

Blake Lapthorn's student complaints and disciplinary issues seminar

by Blake Lapthorn on May 20, 2010

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