Published online by Cambridge University Press: 02 January 2018
This paper examines the processes whereby students may bring complaints against higher education institutions. It stresses that a right to redress of grievance is fundamental to the relationship between students and universities. It focuses on internal complaints procedures and discusses the findings from a survey of a representative sample of institutions of which nearly two thirds (25 in total) responded with statistical and other data on the grounds of complaint, the ethnicity and other characteristics of complainants, and the outcome of adjudications. It reveals areas of commonality and divergence in practice and raises concerns about the fairness and accessibility of the procedures. The paper also includes discussion of the process for the external adjudication of student complaints established under the Higher Education Act 2004 and the way that complaints progress to it. The paper discusses the case for reform of higher education institutions’ student complaints procedures, which are surprisingly unregulated, including the introduction of a more independent element such as ‘campus ombudsmen’.
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36. See, eg, A Blair ‘Tuition fees push parents to demand more from universities’ The Times 28 December 2006, interview with Dame Ruth Deech, Independent Adjudicator for Higher Education.
37. See P Baty ‘Waive your legal rights, Chester tells students’ THES 25 August 2006 and M Newman ‘NHS alarmed by “one-sided” student contract’ THES 13 July 2007. As regards the application of the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083, see S Whittaker ‘Judicial review in public law and in contract law: the example of “Student Rules” ’  OJLS 193.
38. Dearing, above n 30, para 15.58.
39. Ibid, paras 15.57–15.59 and R 60. See below.
40. Ibid, ch 4, eg para 4.17.
41. Healthcare Commission Spotlight on Complaints. A Report on Second-State Complaints about the NHS in England (Healthcare Commission, 2007) pp 5–6.Google Scholar
42. Higher Education Act 2004, Part 2. The OIA’s start-up costs were met by the DfES, but it is expected to meet all its annual running costs through mandatory subscriptions from institutions. Its budget for 2005 shows that subscriptions amounted to £668,480 of its expenditure of £793,290. The rest, apart from a small amount of bank interest, came from grant income. HEIs may be charged fees not exceeding the proportion of the operator’s annual costs in providing the scheme that relates to their institution, which the OIA calculates with reference to full-time and part-time student numbers per institution. The largest institutions currently pay almost £10,000 per annum.
43. Department for Education and Skills The Future of Higher Education Cm 5735 (TSO, 2003)Google Scholar para 4.12.
44. See the website available at http://www.spso.org.uk/statistics/index.php. Note that unlike the OIA the SPSO publishes numbers and types of complaints against the name of the specific institution. In Northern Ireland alone the university visitor (see below) retains this jurisdiction.
45. House of Commons, Higher Education Bill in Standing Committee H, Third Sitting, 12 February 2004 (AM), col 115, per Mr P Willis.
46. Ibid, cols 120–121, per Mr I Lewis, Under Secretary of State.
47. OIA Annual Report 2004 (OIA, 2005);Google ScholarPubMed Annex 4. The total of 322 complaints made in 2005 excludes those that were not considered to fall within the jurisdiction of the OIA: they include complaints that had not been through the internal complaints procedure first. According to figures supplied to this author by the OIA, 16 complaints were not admitted on this ground and a further 5 on the ground that there was no ‘completion of procedure’ letter (see below).
48. P Baty ‘Nursing students complain the most’ THES 30 June 2006 at 5.
49. As, eg, noted by T Buck, D Bonner and R Sainsbury in their study of the Social Security and Child Support Commissioners: Making Social Security Law (Ashgate, 2005) p 120.
50. See, eg, Children’s Legal Centre Complaints from Children: The New Police Complaints Arrangements (Children’s Legal Centre, 2006);Google Scholar
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53. Wallace, H. and Mulcahy, L Cause for Complaint. An Evaluation of the Effectiveness of the NHS Complaints Procedure (Public Law Project, 1999)Google Scholarpara 5.1.
56. Above n 54.
57. For example, as all HEIs’ procedures have an ‘informal’ stage and some ‘formal’ stages, the question arises as to whether some students are deterred from entering the latter stages due to unwillingness to commit their complaint to paper or because they feel they might be victimised, which are typical issues in complaints procedures: noted by Adler et al, above n 10, p 16. Reasons for non-pursuit of redress mechanisms are discussed in Cowan and Halliday, above n 55, ch 5.
58. Further and Higher Education Act 1992, s 70(1)(a).
59. HEFCE Funding Higher Education in England (HEFCE, 2006) p 6;Google ScholarPubMed HEFCW, available at http://220.127.116.11/Finance_and_Assurance/funding.htm, table 5.
60. Further and Higher Education (Scotland) Act 2005, s 13.
61. Further and Higher Education Act 1992, s 70(3). A list of current members and their designations is available at http://www.hefce.ac.uk/AboutUs/board/committees/quality.asp.
62. The QAA also exercises this function in relation to further education. There are also ‘desk based’ and ‘data audit reviews’ of institutions; see the website available at http://www.hefce.ac.uk/finance/assurance/.
64. (QAA, 2000), s 5, available at http://www.qaa.ac.uk/academicinfrastructure/codeOfPractice/default.asp.
65. See the website available at http://www.qaa.ac.uk/education/roundtable/notes/Section5Feedback.pdf.
66. For the original system, see Harris, N. Law and Education: Regulation, Consumerism and the Education System (Sweet and Maxwell, 1993) pp 186–191;Google Scholar for developments up to 1998, including the introduction of the QAA, see
67. See HEFCE Assessment of the Quality of Education Circular 3/93 (HEFCE, 1993).
69. It is not something which, for example, is specifically addressed in the Model Financial Memorandum Between HEFCE and Institutions July 2006/24 (HEFCE, 2006).
70. Above n 64, s 5, para 5.
71. QAA Outcomes from Institutional Audit: Academic Guidance, Support and Supervision and Personal Guidance and Support (QAA, 2006) p 9.Google Scholar
72. QAA Code of Practice for the Assurance of Academic Quality and Standards in Higher Education. Section 5: Academic Appeals and Student Complaints on Academic Matters. Draft for consultation – May 2007 (QAA, 2007) para 7.Google Scholar
73. H Thompson ‘If I don’t get a degree, I’ll sue’ The Times 20 May 1997.
74. P Baty and T Wainwright ‘Complaint culture grows on campus’ THES 19 August 2005.
75. Dearing, above n 30.
76. Ibid, para 15.58.
77. Ibid, R 60.
78. QAA Code of Practice for the Assurance of Academic Quality and Standards in Higher Education. Section 5: Academic Appeals and Student Complaints on Academic Matters (QAA, 2007) para 11.Google Scholar
79. Above n 72.
80. Above n 78, para 12.
81. Ibid, paras 13 and 16.
82. It is not possible to discuss this in detail here. Briefly, the traditional judicial view has been that a student has no right to an oral hearing before being excluded provided that he or she has a proper opportunity to put his or her case in writing: Brighton Corporation v Parry (1972) 70 LGR 576. But given the consequences of, for example, failing to complete one’s PhD or a professional qualification, it is possible that in some cases a complaint about provision could fall within the principles set out in R v Army Board of the Defence Council, ex p Anderson  1 QB 169 as warranting an oral hearing. There would be no guarantee of an oral hearing under Art 6 of the ECHR not least because a civil right is not being determined: see R (Varma) v Duke of Kent  EWHC 1705 (Admin),  ELR 616 and the discussion below. The kind of hearing required has also been an important issue, one of due process, in the USA, more particularly in the context of disciplinary matters; see, eg, Goss v Lopez 419 US 565 (1975).
83. Above n 78, p 8. The draft revised code implies that oral hearings would be needed, ‘in the interests of fairness’, only in ‘exceptional circumstances’: above n 72, pp 11 and 12.
84. See R Attwood ‘Hefce aims to cut costly court bills’ THES 9 February 2007 at 2–3.
85. Evans, Gr A higher education mediation service’ (2004) 5(4) Ed Law J 218 at 220.Google Scholar See also
86. Hall, J. Resolving Disputes Between parents, Schools and LEAs: Some Examples of Best Practice (DfES, 1999) p 52;Google Scholar paras 2.24–2.25;
87. See, eg, M Supperstone, D Stilitz and C Sheldon ‘ADR and public law’  PL 299.
88. Above n 72, p 8.
89. For the most part visitors have been dignatories such as the Archbishop of Canterbury, the Lord Chancellor or the Queen, traditionally exercising jurisdiction under a university’s charter over internal disputes within universities, very often via the Privy Council Office; see Farrington, Dj The Law of Higher Education (Butterworths, 2nd edn, 1998) pp 216–235.Google Scholar Their jurisdiction over staff disputes was ended by the Education Reform Act 1988, s 206.
90. Dearing, above n 30, para 15.59.
91. As noted in the QAA Code of Practice, above n 78, p 16.
92. Committee on Standards in Public Life, Second Report Local Public Spending Bodies Cm 3270-I (TSO, 2001).Google Scholar
93. Ibid, paras 106–109 and R 9.
94. Ibid, R 49.
95. Ibid, para 109.
96. DfES The Future of Higher Education Cm 5735 (TSO, 2003) para 4.11.
97. Higher Education Act 2004, s 12(2)). ‘Academic judgment’ is an undefined term: OIA Annual Report 2005, above n 47, p 32. Kamvounias and Varnham gives as examples of ‘purely academic’ decisions those concerning ‘the marking of exam papers, the academic merit of a thesis, the viability of a research project, the contents of courses, timetables and styles of teaching’: Kamvounias, P. and Varnham, S ‘In-house or in court? Legal challenges to university decisions’ (2006) 18(1) Ed & the Law 1 at 2.Google Scholar
98. Higher Education Act 2004, s 20(3)(a).
99. OIA, Rules of the Student Complaints Scheme (2006) rr 4.1 and 4.2.
100. Higher Education Act 2004, s 15.
101. Above n 99, r 4.3. The OIA may reject a complaint where the period that has elapsed between the substantive events complained about and the issuing of the notice of procedure letter exceeds 3 years: r 4.5.
102. Stephenson, K. and Johnson, A. OIA Research (London South Bank University, 2006).Google Scholar
103. Higher Education Act 2004, Sch 2, para 5(2).
104. Ibid, s 19.
105. OIA Annual Report 2005, above n 47, Annex 4.
106. There was a transition period, during which in one notable case the visitor of Keele University referred the complaint of a former PhD student to the OIA for advice. The university decided not to accept the advice, leading to a separate recommendation by the Privy Council in the case: see P Baty ‘Privy Council overturns ruling by complaints ombudsman’ THES 25 November 2005 at 4; Baroness Deech, letter published in THES 2 December 2005.
107. G Owen ‘Job pressure leads graduates to sue over degree marks’ The Times 31 December 2002.
108. See, eg, Thomas v University of Bradford  1 AC 795 (HL); Pospischil v University of Bristol (unreported) 24 July 2000 (CA) per Mummery LJ at para 14.
109. Clark v University of Lincolnshire and Humberside  ELR 345 (CA).
110. Ibid, per Sedley LJ at 349F–G. For discussion of the contestability of what the author refers to as ‘academic immunity’, see Davies, M. ‘Challenges to “academic immunity”– the beginning of a new era?’ (2004) 16(2–3) Ed & the Law 75.CrossRefGoogle Scholar For a comparative review, see Kamvounias and Varnham, above n 97.
111. Herbst v Germany (Application No 20027/02) judgment 11 January 2007; see also Van Marice v Netherlands (1986) 8 EHRR 483.
112. R (Varma) v HRH the Duke of Kent  EWHC 1705 (Admin),  ELR 616.
113. It was, arguably, somewhat surprising that the European Court of Human Rights in Lalu Hanuman v United Kingdom  ELR 685 ruled as inadmissible a claim based on Art 6(1) by a student that he was not treated fairly by the University of East Anglia’s academic appeal process or as a result of the visitor’s rejection of his complaint without giving reasons. If (under English law) a student has a contract with a university, why does he or she not have a ‘civil right’ for the purposes of Art 6? Surely, even though higher education falls within the scope of the right not to be denied education (Art 2 of Protocol 1) (see below) it is not expected that the student should have to rely on that right if he or she considers his or her treatment to have been grossly unfair. It was held by the Commission of Human Rights in Simpson v UK (Application No 14688/89) (1989) 64 DR 188 that the right to education inures in public law and is not analogous to a private law right such as would be required for appeal procedures concerned with it to concern a civil right.
115. R (Douglas) v North Tyneside Metropolitan Borough Council and Secretary of State for Education and Skills  ELR 117 (CA); Leyla Şahin v Turkey (Application No 44774/98) 10 November 2005, at paras 137 and 141, affirmed in Mürsel Eren v Turkey (Application No 60856/00) judgment 7 February 2006, para 41. Access to a university may be restricted to persons ‘who have attained the academic level required to most benefit from the courses offered’: X and Y v UK (Application No 8844/1980) (1980) 23 DR 228 at 229.
116. ECHR, Protocol 1, Art 2; Art 14.
117. Higher Education Act 2004, s 12(2).
118. OIA Rules of the Student Complaints Scheme (2006) r 3.2. Neither the OIA scheme nor the statute define the term ‘academic judgment’ or matters relating thereto.
119. Ibid, r 3.3.
120. OIA Annual Report 2004, above n 47, p 3.
121. Reddy, M. The Office of the Independent Adjudicator for Higher Education: preparing for the statutory scheme’ (2004) 5(4) Ed Law J 214 at 216.Google Scholar
123. I have not included appeals in cases where the first instance decision has already been included in the total.
124. Stephenson and Johnson, above n 102.
125. A Horne Judicial Review: A Short Guide to Claims in the Administrative Court House of Commons Library, Research Paper 04/44 (September 2006) Appendix 1.
126. Higham v The University of Plymouth  EWHC 1492 (Admin),  ELR 547, comment in (2005) 12(8) Education Law Monitor 5.
127. OIA Annual Report 2005, above n 47, p 36.
128. Harlow, C. and Rawlings, R Law and Administration (Butterworths, 2ne edn, 1997) p 422.Google Scholar
129.  1 WLR 803
130. OIA Annual Report 2005, above n 47, p 36.
131. See, eg, A Le Sueur ‘How to resolve disputes with public authorities’  PL 203 at 204.
132. Adler, above n 10.
133. Supperstone et al, above n 87, at 311.
135. Above n 108.
136. Above n 134.
137. Above n 92, para 109.
138. Higher Education Act 2004, Sch 2.
140. See further Birtwistle, above n 134; Harris, above n 114, pp 83–84.
141. OIA Annual Report 2004, above n 47, p 12.
142. Ibid, p 12, referring to R (Thompson) v Law Society  2 All ER 113. See also R (Smith) v Parole Board  1 WLR 421 (CA).
143. Above n 82.
144. Referred to in OIA Annual Report 2004, above n 47, p 19.
145. Gaston Siborurema v OIA and London South Bank University CO/1978/2006, cited in Stephenson and Johnson, above n 102.
146. Evans, above n 85, at 219.
148. Higher Education Act 2004, Sch 2, para 6.
149. An example would be an apology or the re-hearing of an appeal: OIA Annual Report 2005, above n 47, p 12.
150. R 7.4.
151. Ibid, rr 7.5–7.7.
152. See P Baty ‘Students win £250K payout’ THES 3 June 2005. The case of one of the students appears to be case 18 cited in OIA Annual Report 2005, above n 47, p 27, but this cannot be confirmed due to the OIA’s duty to protect confidentiality. This student was awarded £9000 (£2000 for curriculum failings, £2000 for distress and inconvenience, and £5000 for a shortfall in potential earning opportunity because her course was not professionally accredited).
153. OIA Annual Report 2005, above n 47, p 47.
154. Ibid, pp 20–23.
155. Ibid, p 23.
156. OIA Annual Report 2004, above n 47, p 4.
157. OIA Annual Report 2005, above n 47, p 36.
159. Ibid, p 18.
160. Ibid, p 10.
161. A Smith ‘It’s just not fair…’ The Guardian 8 August 2006; R Attwood ‘Deech wants ombudsmen for each campus to deter litigation’ THES 2 March 2007 at 2–3.
162. Comptroller and Auditor General, above n 14, para 2.5.
163. Above n 78, para 12. The draft revised code adopts almost identical definitions, the difference being the inclusion of complaints about a ‘course’: above n 72, para 16.
164. See the website available at http://www.qaa.ac.uk/education/roundtable/notes/Section5Feedback.pdf.
165. Above n 78, para 13.
166. Ibid, paras 13 and 14.
167. Comptroller and Auditor General, above n 14, para 2.8.
168. See the website available at http://www.qaa.ac.uk/education/roundtable/notes/Section5Feedback.pdf.
169. OIA Annual Report 2005, above n 47, Annex 4.
171. Ibid, pp 17 and 46.
172. Race Relations Act 1976 (Statutory Duties) Order 2001, SI 2001/3458.
173. OIA Annual Report 2005, above n 47, p 18.
174. In 2004/05 there were just under 320,000 international students (undergraduate and postgraduate) in higher education, comprising approximately 13% of the student population in the UK: HESA Press Notices PR105 and PR97.
175. Disability Discrimination Act 1995, ss 28R–28T, as inserted by the Special Educational Needs and Disability Act 2001 and amended by the Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006, SI 2006/1721. Complaints of disability discrimination in further or higher education may be pursued in a county court in England and Wales: s 28V.
176. OIA Annual Report 2005, above n 47, Annex 4.
177. QAA Code of Practice, above n 78, p 7; Draft for Consultation, above n 72, p 10.
178. QAA Code of Practice, ibid, p 8.
179. Above n 72, p 11.
180. Ibid, p 12.
181. See the website available at http://www.qaa.ac.uk/education/roundtable/notes/Section5Feedback.pdf.
183. Above n 72, p 14.
184. See, eg, Rt Hon The Lord Woolf, Jowell, J. and Le Sueur, Ap De Smith, Woolf and Jowell’s Principles of Judicial Review (Sweet and Maxwell, 2ne edn, 1999) p 334–335.Google Scholar
185. Namely that ‘each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent’: Dombo Beheer BV v Netherlands (1994) 18 EHRR 213 at para 33.
186. As the table shows, 15% were rejected.
187. R v Secretary of State for the Home Department, ex p Doody  1 AC 531 per Lord Mustill at 564.
188. R v Universities Funding Council, ex p The Institute of Dental Surgery  ELR 506 at 523H–524B per Sedley J, in effect putting a gloss on Lord Donaldson MR’s view in R v Civil Service Board, ex p Cunningham  ICR 816.
189. Cunningham, ibid, at 826.
190. Ibid, and R v Universities Funding Council, ex p The Institute of Dental Surgery  ELR 506.
191. But note that in R v Universities Funding Council, ibid, the court regarded the possibility of challenge to a decision based on error of law or process as not, in itself, providing a rationale for requiring reasons, but that the need to know should nevertheless be judged an aspect of fairness to be considered in deciding whether reasons were needed.
192. QAA Code of Practice, above n 78, pp 8 and 9.
193. Above n 72, pp 12–13.
194. J Shepherd ‘Grievances are “mishandled” THES 4 August 2006.
195. OIA Annual Report 2005, above n 47, pp 9 and 15.
196. Dearing, above n 30, R 60.
197. See the website available at http://www.qaa.ac.uk/education/roundtable/notes/Section5Feedback.pdf.
198. See also the guidance posted on the ARMED website. The ARMED project is supported by HEFCE under the fund for ‘good management practice’ and aims to ‘provide simple guidance to reduce legal risk in higher education institutions’: see the website available at http://armed.ilrt.bris.ac.uk/aboutus.html. The partners in the ARMED project are the University of Bristol, the University of London, Nottingham Trent University, the University of Oxford, the University of the West of England and Eversheds Solicitors. The policy itself is set out in I Budden, J Harris and S Smith ARMED – Active Risk Management in Education: Student Complaints Procedures (2007), available at http://armed.ilrt.bris.ac.uk/intranet/files/13/template/index_html.
199. Above n 11.
200. QAA Code of Practice, above n 78, p 11; see also the draft revised code, above n 72, p 15.
201. DCA, above n 11.
202. Eg B Thompson ‘Administrative justice: towards the millennium, towards integration?’ in Harris and Partington, above n 20, pp 463–481.
203. Eg Lewis, N. and Birkenshaw, P. When Citizens Complain (Open University Press, 1993) p 138.Google Scholar
204. See Cabinet Office Reform of Public Sector Ombudsmen in England (Cabinet Office, 2005).Google Scholar See also the Public Services Ombudsman (Wales) Act 2005.
205. Above n 78, p 9.
206. Above n 72, p 12.
207. Noted in OIA Annual Report 2005, above n 47, p 10.
210. See the website available at http://weblamp.princeton.edu/~puombuds/OmbudsOffice/mediation01.php (original emphasis).
211. OIA Annual Report 2005, above n 47, pp 9 and 15.
212. See the website available at http://www.nusonline.co.uk/news/274228.aspx. One of the questions asked is ‘Have your [HEI’s] internal procedures relating to complaints been improved since the introduction of the OIA?’
213. Healthcare Commission, above n 41, p 35.