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Public trust and the higher education ombudsman

Ten years after its founding, OIA's chief executive Rob Behrens reflects on the role of the independent adjudicator in higher education - and all the sector has learned about complaints and public trust in universities.
This article is more than 5 years old

Rob Behrens CBE is Senior Adviser to the European Network of Ombudsmen in Higher Education, and former Chief Executive of the OIA.

The 2014 Annual Report from the Office of the Independent Adjudicator (OIA) published today includes a very potted history of the organisation’s first ten years.

The report shows that, as debates around law and students’ place in the academy intensify, the classic ombudsman model fits the temperament of higher education because it restricts the ombudsman to addressing complaints only when internal university processes have ended.

From time to time an OIA colleague will receive an email like this:

I wanted to thank you personally for your help and support in my complaint thus far. It has been a long process and arduous at times and it is wholly reassuring to know that there is an independent organisation such as The OIA”

Often the student will go on to explain what happened next – work was re-marked, an appeal re-heard, eventually an apology offered. Sometimes the complaint will not have been upheld but a student will still write and comment  that the OIA has enabled them to put an issue behind them and move on with their lives.

Such examples, while far from a weekly occurrence, show how ombudsmen can achieve a level of confidence and trust, both in their own organisations, and in the sector in which they operate. This is a feature of the higher education system, missing elsewhere, which embodies accountability without constraining the exercise of academic and professional judgement.

Key elements of public trust

There are at least four elements to public trust. One concerns the perceived honesty and independence of a profession. A recurring feature of reputational damage to the banking, media and Parliamentary systems has been the failure to provide a robust and independent investigation mechanism when the public or service users wanted to make a complaint.

Secondly, even if independence is enshrined in practice, no profession is trusted unless it exhibits a core competence in serving its users and the wider public.

Thirdly, there is continuing public support for ‘the development of a strong internal culture fostering standards and openness as means for improving professional integrity and increasing confidence in public institutions.’

A fourth key element of public trust is the manifestation of ‘active trust’ and trustworthy behaviour by professions and oversight bodies alike. There is a mutuality in this. In order to be trusted organisations have to exhibit trustworthy behaviour.

A. Trust, independence and transparency

The OIA is an independent complaints handler, required to be so by the 2004 Higher Education Act, by the scheme rules, and deemed to be so by the Court of Appeal in England and Wales.

Nevertheless, when the OIA surveyed complainants, just under half the sample saw the OIA as ‘on the side of the HEI.’ This paradox is serious and resolved (in part) by greater transparency. Through greater transparency we can illustrate the reality of the OIA calling universities to account for unfairness to students, and (also) the good record of university compliance with recommendations set out in OIA adjudications.

B. Trust and delivery: redress for individuals and groups

Complaints to the OIA have quadrupled since the OIA’s designation under statute in 2005.

The majority of complaints – around two thirds – relate to academic status. The OIA does not intervene in matters of narrow academic judgment, but will look at all regulations and processes and their application in matters of academic progression, grading, appeal and misconduct. Overall, the proportion of cases that are Justified, Party Justified or are Settled each year is around 20 – 25 per cent. This means that the OIA provides redress for up to a quarter of students who use the scheme. About £1.5 million in financial compensation has been awarded to complainants though the first priority is put the student back where they were before the detriment occurred.

At the end of 2008, the OIA began a strategic and consultative review of its operations and mandates and how they might be improved. In 2010 the OIA published the first of three iterations – the Pathway Report -setting out the results of these consultative enquiries. Changes introduced included increasing case-handling capacity, introducing triage, focus on mediation and settlement, the introduction of targets, publication of guidance on remedies and the development of a good practice framework.

These reforms have had a significant impact on the OIA’s ability to close cases and reduce unit costs.

C. Trust and the promotion of good practice

An effective OIA service requires not only resolution of cases when they are received but working proactively with universities and students’ unions to promote good policy and practice in complaints and appeals handling.

The OIA launched an Early Resolution Pilot Initiative in 2012 to explore and map the wide variety of ways in which early resolution can be achieved, including the use of mediation, and student conciliators.  Related, in 2014 the OIA led a sector-wide project to devise and publish the first written Good Practice Framework on Complaints and Academic Appeals.  . The Framework, which comes into operation in September 2015, constitutes an authoritative guide to good practice, covering model architecture, due process, time-frames, and the handling of exceptional circumstances.

D. Active trust and trustworthy behaviour

Active trust and trustworthy behaviour involve continuous communication with service users, rigorous expectation management, and unremitting respect for individual service users. Unfailing respect for individual users is a cornerstone of sustaining trust.

The OIA publishes an Annual Report and holds an Annual Open Meeting and regular regional forums for universities and students’ unions. I have also visited over 100 universities and students unions, seeking informal exchange and greater dialogue both to learn about the sector and to demystify our role.

The more a user knows about the role, remit, procedures and available remedies of the ombudsman, the more seriously they will be in a position to engage.

Emerging issues

First, while there is good evidence that trust in higher education is currently high in comparative terms, there is a continuing risk of ‘collateral’ damage to trust in higher education from crises in other professions.

Second, even though academic judgment is narrowly defined by the courts, academics are in a privileged position in that this area of their work is exempt from ombudsman and legal scrutiny. This is irritating to many student complainants. It may have implications for public trust, since the perceptions of scheme users are likely to impact on the wider student and public perception of the ombudsman scheme.

Third, there are trust-related issues in the strategic relationship between ombudsmen and regulatory functions. The apparent failure in England of either the Health Service Ombudsman or the Care Quality Commission to give priority to investigations following complaints about avoidable deaths in the health service underlines the dangers of lack of clarity about how institutional roles must complement each other.

In higher education successive policy studies have concluded that there is a need for the OIA, the independent complaints handling body, to continue to operate as a separate institution within an overall regulatory framework, created by legislation. While the Consumer Rights Act 2015 will remove one anomaly, the exclusion from the OIA of students undertaking higher education outside universities, wider regulatory coherence is still missing.

I was told when I went into complaints handling that I would never be loved, and that, more important, I should never seek to be loved. I can confirm after seven years at the OIA that both comments are valid. The consolation is that the entire higher education sector – universities, student bodies, and the wider public – has a strong interest in ensuring that it has a truly independent and transparent complaints resolution service to adjudicate on complaints by students about universities.

This piece is based on a longer analysis published by the OIA in its Tenth Anniversary Series.

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