Taking complaints seriously means supporting students to make them

I’ve been spending a lot of time on trains recently, and the state of the railways being what it is, I’ve had a lot of time on my hands.

Some passengers take to their phones to moan about delays loudly. Some have the foresight to download movies to their tablets. I’ve been looking at higher education provider complaints procedures, as you do.

Student power

Back when the Office for Students (OfS) Regulatory Framework was being consulted on:

student representative groups in particular drew attention to an imbalance of power and information when students had complaints. They argued for additional measures in the regulatory framework to ensure that students had access to impartial advocacy and advice”.

We shouldn’t underestimate how important this is. Providers are more powerful than individual students, with considerable legal firepower. Few students know what their rights are, and many providers have a baffling array of procedures that have to be navigated. And as long as much of higher education remains a one-shot thing, the fact that providers also hold the keys to a student’s academic success will dissuade all but the most ardent student from making a fuss. Who wants to make themselves unpopular and put their course at risk?

We also know that access to complaints procedures in general (and the tenacity to escalate when fobbed off) is not distributed around equally – all the research suggests that the sharp-elbowed middle classes tend to dominate these spaces. This should concern us when so much of the emerging higher education marketplace involves those who are disadvantaged, those whose families without a background in HE and those without the economic or emotional firepower to pursue. We certainly know nothing about the characteristics of complainants, and we probably need to.

A good news day

The initial good news when OfS responded to the feedback from student representative groups (if you’ll forgive the consumerist framing) was that:

We agree that having access to appropriate advice is an important part of being an empowered consumer”

The trouble is that the rest of its narrative response to the consultation then set out some things that had little to do with access to appropriate advice. It resolved to clarify a condition in the regulatory framework to “ensure that providers have given due regard to relevant guidance”, such as “that published by the Competition and Markets Authority (CMA)”, about “how to comply with consumer protection law”.

None of that mentions that imbalance of power, or access to appropriate advice. But the regulatory framework does require that all providers on the register comply with guidance on consumer protection law, and that they subscribe to the OIA. The OfS response noted that:

providers must inform students about their processes, including any right to escalate internally and to an external complaint scheme.

That (still) doesn’t mention that imbalance of power, or access to appropriate advice. But OfS did remind us that OIA’s (voluntary) good practice framework states that:

It is good practice to provide students with access to support and advice and, where it is not practicable to do so internally, providers should consider making arrangements for students to access support services at neighbouring institutions, partner providers or other local community services”

For some reason OfS chose not to reproduce the first part of that paragraph in the GPF:

Students should be directed towards the support services available, for example the students’ union, which can provide helpful independent support and advice to those who wish to pursue a complaint or academic appeal”

Broadly then, the message seemed to be – we hear you, but the need to demonstrate compliance with consumer protection guidance, the subscription to the OIA and its good practice advice covers it. So a nagging doubt ever since has been whether it really does cover it – hence the hobby whilst others have been complaining about signal failures outside of Doncaster.

There’s a method

I’ve now read (almost) every complaints procedure of every provider on the OfS register, but this exercise deserves a few notes on methodology. I started this in June 2019 and finished on 20 July. First, I’ve surfed to the website of the provider as given on the OfS register (note to OfS – several are out of date, in which event I’ve found it myself). Then, if there’s a search function, I’ve searched for “complaints”. If that doesn’t turn anything up, I’ve used google to search its index of the site along with the word “complaints”. And if that doesn’t turn anything up, I’ve noted that as a no-show. It might be that a procedure is available on request or on the internal intranet, but there’s no easy way to know.

In some cases I’m treated to multiple years’ of revisions of procedures, and in some cases there’s a bespoke procedure for higher education provision. If that was obvious, I’ve looked at that. If not, I’ve not. In some cases there are multiple procedures – some differentiate academic and non-academic complaints, many separate out appeals and complaints, and many have seperate harassment or conduct procedures – and many don’t. In any event, I’ve centred on the closest thing I can find to the main complaints procedure – and if there’s a choice, the non-academic complaints procedure.

Once I actually have one, I’ve then done two things. First, I’ve looked for a mention of the OIA, and if they do, I’ve recorded a tick. Note that in some cases the policies mention the OIA without actually mentioning that a student can go there if they exhaust their complaints – that gets a cross, and gets me cross too. Then I’ve looked to see if they outline anyone independent that might be able to support a student in making a complaint – like a students’ union, or a local advice service like a Citizens Advice Bureau. If they do, that gets a tick. If they only mention internal services, that doesn’t count.

All of this also does mean, by the way, that I’ve not looked at all of OIA’s English subscribers. That’s because there’s no list of those that would have been in the (dropped) registered basic category. There’s a whole hinterland of providers who run franchised provision and in those cases the franchiser does have to be on the register. But OIA also requires those “receiver” providers to subscribe too – particularly because there may well be complaints of a non-academic nature. I just don’t know who they all are.

If you’re unhappy with your results

First some scores on the doors. As I’m typing this, there’s 377 providers on the register. Of those, I couldn’t find sight nor sound of a procedure at 20 of them. 115 fail to mention the OIA, and even when they do well over half don’t bother to give out the web or postal address. Amusingly, some refer to the OIA and (often the old) QAA quality code without making clear that a student can actually escalate a complaint to the OIA. Some refer complainants to HEFCE. Some refer them to the DfE. Many send them off to the Skills Funding Agency.

A particular favourite of mine does make clear that you can forward your complaint to the OIA, but then in big letters says that “they have no regulatory powers over providers and cannot punish or fine them”, a motivating statement if ever I’ve seen one.

Some still refer to QAA’s “concerns” scheme, which these days only applies to alternative providers – and even that mentions something it calls the “Unsatisfactory Quality Scheme run by the Office for Students in England”, the link to which takes baffled learners to a dead archive of the HEFCE site.

Many refer vaguely to validating or franchising partners without giving out details or making clear which complaints can and can’t go into their procedures. Not nearly enough of them mention completion of procedures letters or timeframes. And there are plenty that say that “you can contact the OIA through the Deputy Principal” or some such confection, which is also probably less than motivating for the average aggrieved learner.

I need support

Then there’s the question of support. Of that 357 procedures, just 126 mention the availability of independent advice or support if a student has a complaint. Most large mainstream providers mention the students’ union. Some only mention the SU in the event a student has a complaint about the SU, which doesn’t really count.

A surprisingly small number recognise that students might need to access advice or support, and even when they do students are encouraged to chat to personal tutors or student services staff – none of which are independent and so I’m not counting them in my numbers. As lovely as the Student Services Manager or Deputy Principal are, I’m not convinced they’d encourage a student to hold out for the right level of compensation if a student was entitled to it.

In some cases, an SU is mentioned but then appears not to actually exist – or at least only consists of a handful of barely elected FE students with no professional support staff.

In a few cases local citizens’ advice is mentioned – but my own mystery shopping back when the USS pensions dispute was on suggests that they are pretty clueless about student consumer rights, let alone student rights in general. A small number mention the SU of the validating or franchising partner – and in a number of those cases, I’ve followed up with that SU who has expressed surprise, usually revealing that no-one else considers those students to be their members (not least their funders). And in my favourite case, students are told that they can consult “Father Michael” from the local catholic church. I looked him up. Sadly, he left last August.

There are some things I’ll never unsee

As well as those raw results, I’ve come across all sorts of stuff that someone should probably follow up. A large number of the procedures I’ve seen fail to make clear what a student can and can’t make a complaint about. Very few refer to students’ legal rights or mention the student contract.

Some have so many stages that require the student to attempt to resolve informally that they look like an itinerary for the greatest race. One even says “when the complainant is exhausted” they can go to the OIA – doubtless a misprint. Or maybe not.

Some require an attempt at resolving informally by “talking to the Principal” which doesn’t sound especially informal to me. Plenty ban all third party representation or advocacy. Some describe reasonable adjustments for complainant students that might need them, but most don’t.

About half of all Further Education colleges call their document a “compliments and complaints” procedure – not only are those concepts not opposite, but it also makes those colleges sound like they’re smirking at the mere prospect of criticism.

A tiny number refer to the way in which complaints will be reviewed, or who might be monitoring them for lessons to be learned. Some completely misrepresent the role of the OIA by artificially narrowing the nature of complaints it will look at. And several of them over-egg the old “get out of jail free” card of academic judgment – suggesting (for example) that any complaints relating to assessment are out of scope.

As part of this, I’ve also looked at about 100 student disciplinary procedures, but the process became do dispiriting that I had to stop. The state of investigations, panels and victim support is bad enough in mainstream universities. Across the whole higher education provider landscape, it’s a monumental disgrace.

“This is a priority for us. It is too important not to be,” OfS’ Nicola Dandridge has said. “Universities must ensure they have systems in place to make it as easy as possible for students to report incidences of sexual violence or harassment. Without those, it requires an impressive degree of bravery and courage on the part of students to report what has happened to them. We need to do better than this.”

She says OfS could use powers – which include issuing fines – to intervene. “We want to know what universities are proposing to do to address systemic issues”. It’s not clear which bit of the regulatory framework she means, or how systemic issues will be measured or monitored.

The thing is, in the majority of providers on the English register, we have a complaints mess. And given that one of OfS’ ways of noticing problems in a provider is via OIA-escalated complaints, it means there’s a fundamental flaw in the regulatory system. Because the chances of complaints getting near the OIA in so many of these cases are slim to zero.

Try asking a PAL

Are there other types of service provider knocking around the country where the power dynamics are asymmetric, where consumer “switching” is low and where the procedures are often baffling and personally risky? You betcha.

Back in 1999 the Government got so worried about a similar set of issues befuddling the Health Service that the 2000 NHS Plan introduced a requirement for all patients to have access to a Patient Advocacy and Liaison Service (PALS). Patients got an identifiable person they could turn to if they have a problem or need information while they were using hospital and other NHS services. Patient advocates were to act as an independent facilitators to handle patient and family concerns, with direct access to the chief executive and the power to negotiate immediate solutions. Patient advocates were to steer patients and families towards the complaints process where necessary.

A Patients Charter was developed to make clear how people could access services, what the commitment was to patients, and the rights patients had within the NHS. And PALS were funded and recognised to provide confidential advice and support to patients; assistance in resolving problems and concerns quickly; provide feedback from patients to inform service departments; and recognised as monitoring trends and gaps in services and reporting these to trust management for action.

In traditional higher education, this is a central and pivotal role for SU based student advice centres – a cinderella service if ever we’ve seen one, and often underfunded – but at least available to those in most large universities. Phil Pilkington revealed this secret service for us a while back on the site. But the lack of SUs in small and specialist HE, alternative providers and most general further education colleges means that most of the learners in these settings have no access to that kind of support. Why do we recognise the need over in health but ignore it over in higher education?

That wasn’t the only thing that the NHS Plan of 2000 rolled out. All NHS trusts, primary care groups and primary care trusts were to have to ask patients and carers for their views on the services they have received and publish an annual account of the views received from patients and the action taken as a result – some distance from higher education providers having to take part in the NSS but never having to say what they’ve done with the feedback.

The devil is in the detail

The good news is that all of this is all devilishly easy to fix. First, OfS should publish on the register links to all of the complaints procedures that providers claim to have, and check them for definitional compliance and escalation advice as they do. Ideally on something more user-friendly than an excel spreadsheet.

Next, it should establish the right for all students to be able to access an independent Student Advocacy and Liaison Service that is funded by providers on the register, with the sort of role directly described as above in the NHS example. In a large number of cases that would be the local Students’ Union. In many cases there would be a discussion about extending access (with appropriate funding) to the main SU of the franchising or validating partner. And in other cases, new charities or social enterprises could be formed that a provider could subscribe to to provide the service. An SU would be nice. A SALS would do.

For any SU or other body holding the SALS role, there would be a set of standards and funding assumptions that could easily be handled through co-regulation. All SALS would report annually to both the provider(s) they serve and the OfS, giving some visibility to internal complaints that don’t get as far as the OIA. Some modest central funding would help develop and network the SALS services, with OfS, QAA, NUS, OIA and others all having a hand in the governance of a little umbrella. SALS would help advise on internal practice to effectively capture student moans and gripes that aren’t huge enough for a complaint but do matter. And it would be a condition of being on the register that all students are told who their SALS is, and how to contact them.

Of course, for all of that to work well, a few other bits and bobs do need to emerge along the way. Someone should collect the stats on complaints within providers, not just those that reach OIA. OfS does need to get round to looking at student contracts. We need a much better sense of the rights of students, with CMA needing to update their guidance to take into account elements of the service that aren’t strictly about course, and students on HE courses who aren’t technically covered by consumer protection law. SALS would take a proactive role in information students what their rights actually are. And students in cases like this need to know if the £500 on offer to settle is a good or derisory deal.

We also need to understand the climate of complaints confidence and target those less likely to make one because of their class or educational situation. And it surely can’t be beyond us to require providers running the NSS to show how they’re responding to it, as in the NHS. Can it?

Other solutions are available

There is another way. It’s a dystopian, miserable, alternative near future where none of the above happens. The ambulance chasers are coming. There are bits of the legal profession that are boning up on the law in this area as a way to make lots of money out of student misery.

Legal escalation is intimidating; often only available to the rich; causes deep defensiveness and largely prevents organisational learning. But unless our regulators and our expanding sector accept that the days of deference are gone, and that students need and deserve independent support in these kinds of cases, that is exactly what will happen. Don’t say you weren’t warned.