Contracts, complaints and unintended consequences

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Whenever a minister announces a potential extension to the rights of students, I’ve started to notice a familiar pattern, and Jo Johnson’s announcement of an OfS consultation on the content of student contracts (his own little regulatory dead cat on the fees and debt table) is a case in point.

First, mainstream journalists ham-fistedly rewrite press lines with the memory of a goldfish. “Jo Johnson proposes legal ‘consumer’ protection”, said the Guardian – forgetting their myriad of previous articles on CMA and existing student consumer rights.

Next, someone from the higher education sector argues that giving students a smidgeon of power will undermine the whole system. “No one would want to see standards undermined by the risk of legal action”, said the Russell Group, as if allowing universities to miss-sell courses without recourse is somehow what holds the whole fragile edifice of UK higher education together.

Then the usual braying anti-snowflake/consumerism brigade appear, arguing that students have never had it so good, and will use the new powers to cheat. Perhaps my favourite of this season was “Education Expert” Helen Rowland, who used her Capital Law column to argue that contracts could “cut both ways”- and that universities should be able to sue students if they don’t perform. Somehow, the threat of using hallowed ‘academic judgment’ to issue a third in exchange for £60,000 worth of debt isn’t quite enough power over ‘lazy’ students already.

We’ve seen all this before, of course. It’s a chorus that has accompanied the introduction of almost all student protections in higher education, including CMA’s interventions, student charters, better complaints procedures, and student representation in general. Most of it fits a particularly English tradition of assumed deference to elders and institutions, and incredulity at the temerity of challenge to those traditions. But as well as all that, there may well be unintended consequences from Johnson’s redress reforms that deserve thinking through.

Take the power back

A few weeks back the ‘European Network of Ombudsmen in Higher Education’ (imagine the social events) published a monograph from former UK ombudsman Rob Beherns, comparing ombuds systems around the world. It’s a fascinating and compelling read. Rob reflects on the history, role and operational context of ombudsmen (noting the influence of student voice and students’ unions), the lived experience of ombudsmen (they all value independence, neutrality, impartiality, and confidentiality but a dispute about whether or not ombudsmen should adjudicate rages on) and independence (the ‘golden thread’ underpinning ombudsman authority, and generator of user and public trust).

The material is focussed on ombuds themselves, but it’s also full of useful insights into higher education regulation, policy making, and redress. Perhaps the most interesting section in the context of Johnson’s reforms touches on power. As Behrens points out, “individual student pursuit of redress within a hierarchical institution can be intimidating, notwithstanding the tradition of higher education institutions encouraging the challenge of individual views… many… feel vulnerable particularly when making serious allegations… It is this perceived (and real) absence of power which makes the availability of independent ombudsman and redress mechanisms to students so important”.

Power matters. We already know that there’s “less awareness among students of their consumer rights when engaging with their university compared with other organisations”. We also know that even when they do complain, they feel “disappointed, let down, angry, emotionally drained, exhausted, discriminated against, depressed and sad”. Ask any students’ union officer and they’ll confirm: students worry that complaining about the people who grade and judge them will result in lower marks. Ask any students’ union advisor and they’ll tell you that when a student complains about poor dissertation supervision once they’ve got a grade they’ll be written off as bearing bad grapes. But who would risk it before the grading? When these problems are magnified in courses that involve professional practice judgments or subjective marking of art, it’s only violent failure that punctures the pressure on a student to not rock the boat.

Behrens makes some vivid points about the role that many ombuds play in developing a positive complaints culture, noting that in 2005 an regional Australian Ombudsman uncovered things like a failure to recognise the value of learning from complaints to aid system improvement; poor centralised record-keeping; low levels of awareness of the need for fair procedures in handling complaints; over-complex and under-used formal complaints procedures; and the absence of fairness in decision-making by academic staff.

Incentivising cover ups

In this context the problem with Johnson’s reforms isn’t that they give students too much power. Rather, they could make the culture we’d want to see surrounding student complaints worse. The threat of legal action makes it more, not less likely that a middle-ranking head of department will cover up a failure. The drama of legal redress makes it more, not less likely that institutions will drag things out for as long as possible, exhausting students with justifiable complaints who just want to move on, and fobbing them off with derisory settlements that never get published.

And the power to legally enforce a contract makes it less, not more likely that universities will publicly learn from complaints, lest offenders admit in public that there was a problem that needed to be fixed. Ultimately for all the benevolent intent of higher education leaders towards students, they cultivate cultures which defend universities when attacked. The power imbalance that this represents could easily get worse with contract litigation.

There is an answer. Behrens’ canter across ombuds systems in the US and Europe does reveal countries with healthy cultures that:

  • inform students of their rights,
  • support them with complaints,
  • adjudicate with confidence, independence, and clarity within a higher education provider,
  • and ensure institutions learn properly from complaints and feedback.

The first two of these are covered by students’ unions in the UK, but they continue to need help support and funding. They also need to exist in private providers, where the tradition of deference might be missing, but the risks to learners are high.

The case for local ombuds

But it’s the second two where Johnson could make a real difference by beginning a conversation about complaints and the enforcement of contract clauses by students. Every higher education provider ought to be compelled to appoint an independent ombudsperson of their own. They could be jointly governed by the university and the students’ union, and investigate complaints, adjudicate, resolve, and ensure systemic learning from mistakes. They’d be independent, commanding the confidence of students, academics, university managers, and taxpayers alike. They’d be pragmatic, fitting one of the moulds outlined in Rob’s book: a focus on dispute resolution and avoiding blame. Small higher education providers could share, like clerks to corporations in further education colleges. And they’d be networked, supported by the Office for the Independent Adjudicator (OIA) to improve practice and drive a positive culture around student rights.

Who could make this happen? Forward thinking universities could do it anyway, but like putting students on remuneration committees, no-one wants to be the first. And then there’s the question of who should lead. OIA was left out of the Office for Students (OfS) for good reason, but the danger is that students and the sector are left with a baffling array of redress and complaints bodies which have problematic gaps and uncomfortable overlaps both in role and policy position.

Nevertheless, DfE, OfS and OIA are full of bright people who will understand the risks that heightening the threat of legal redress can create for the very students these reforms are supposed to support. If you – like me – believe that you can combine student rights with a positive culture of feedback and complaint, there’s not really any choice.

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