The Office of the Independent Adjudicator for Higher Education (OIAHE) plays a unique role in resolving complaints from higher education students in England and Wales.
But despite the OIA’s vision that students are always treated fairly, complainants typically do not find OIA’s decisions or processes fair.
While dismissing these voices as disgruntled students pursuing unmeritorious complaints is easy, I think there is a lack of understanding about the root causes of their sense of injustice.
As a former OIA Assistant Adjudicator, and someone interested in the intersections of law and justice, I find the idea of perceived unfairness at the OIA fascinating.
I am currently finishing a PhD at QMU about the OIA’s role in resolving disputes – a mixed methods study using OIA and HESA quantitative data (2016-2019) and qualitative focus group research with complainants, university staff and OIA staff.
The research suggests that almost half of all OIA complainants think the process is unfair – and I’ve been keen to work out why.
Heard and valued
Effective dispute resolution requires all parties to understand the strengths and weaknesses of a complaint. Usually, parties need to feel heard and valued before they can appreciate alternative perspectives.
In the focus groups that I have run, while some complainants thought OIA staff were extremely professional and highly skilled, others reported feeling dismissed and unheard.
For instance, a black mature-age complainant explained:
It felt like the OIA was trying to explain what my university did to me rather than hearing my side of the story.”
Another complainant felt the OIA did not take her concerns seriously, stating:
“They just reiterated what the university had already said, and I don’t think they argued the points I’d made”.
However, as highlighted by an international student who received a “Justified” OIA outcome, listening alone does not always lead to resolution. While he acknowledged that the OIA had listened to him, he remained frustrated with the outcome.
He felt the OIA’s attitude was:
…we hear you, we can’t do anything about it, but we hear you”.
David v Goliath
For some complainants, the power imbalance between complainants and higher education providers can make the system feel like “David versus Goliath”.
Complainants expressed the importance of having proper representation and a clear understanding of the OIA’s process. A local student with mental health issues emphasised the potential for universities to take advantage of individuals who do not understand their rights and the law, particularly in the absence of legal representation.
An international student talked about numerous barriers she experienced trying to access the OIA, such as language barriers, mental health issues, lack of understanding of technical terms, and cultural differences. The student shared:
I may sound articulate now, but when I’m stressed, I forget English… I couldn’t explain everything concisely in five minutes and was seen as someone who was just rambling”.
A local student who received a “Justified” outcome explained that students with good cases sometimes needed help articulating their problems correctly. She said:
Even though the OIA, in my opinion, seems to be doing an excellent job, there needs to be another body that helps people write complaints that are separate from the OIA”.
Several complainants agreed that employing advocates trained to support vulnerable students would be helpful, especially in mental health and discrimination claims.
Complainants also discussed a multi-agency approach to address mental health issues, with cooperation between universities, the OIA, and other organisations like the NHS, who could work together to find solutions rather than working in isolation.
Compensating students
Focus group participants criticised the OIA’s process for determining compensation for economic and non-economic losses. Several complainants expressed dissatisfaction with OIA recommendations but not all perceived the review process as unfair.
An international mature-age student felt his offer of financial compensation was “ridiculous”, but he still believed the OIA’s process was fair. He pursued legal action against their university instead of accepting the OIA’s recommendations.
Similarly, another international student said:
I feel that the decision was correct, but I do not feel that the recommendations were anywhere near what was needed”.
However, both complainants understood that the OIA had limitations in what it could do.
Although the OIA’s 2019 guidance “Putting Things Right” outlines the principles of the OIA’s decision-making process, an experienced university case handler believed that she would benefit from a better understanding of the OIA’s financial decision-making process.
Reflecting on the financial compensation process, an academic registrar noted that “distress and inconvenience” was highly subjective, adding complexity to the entire process.
According to an experienced university case handler, the OIA should consider the financial circumstances of higher education providers when issuing recommendations, as:
…the OIA must be very aware that universities aren’t loaded with any spare cash”.
An OIA adjudicator highlighted the complexity of OIA decision-making and the difficulty in providing a satisfactory outcome for all parties involved, given the limitations imposed by the OIA’s remit. He explained that in some cases, the OIA’s remit forced it to refer a complaint back to the same higher education provider that caused the problem. He said:
I don’t believe we can be confident that the student will get a fair outcome from that”.
Another adjudicator believed the compensation scales for distress and inconvenience were outdated and did not reflect the actual damage some students experienced. He explained that the OIA was still stuck with the same compensation scales, such as £250 for a three to six-month delay.
The focus groups I conducted showed that some complainants felt dismissed and unheard, while others thought that the OIA did not take their concerns seriously.
The power imbalance between complainants and higher education providers also created challenges, highlighting the importance of proper representation and a clear understanding of the OIA’s process. Complaints, university and OIA staff criticised OIA recommendations and compensation scales for economic and non-economic losses.
Looking forward
As Helen Megarry’s tenure as Independent Adjudicator approaches in May, the OIA has an ideal opportunity to reflect on feedback and take a fresh look at its processes.
More than a decade on from the OIA’s ambitious Pathway consultations, it may be time to reach out to SU, higher education providers, and other organisations like the NHS to tackle emerging issues facing the student ombudsman.
The challenges highlighted in my research include the need to update the OIA financial compensation guidelines, work collaboratively with student services to address mental health concerns, and increase the transparency of decision-making by publishing detailed explanations of OIA decisions.
While about half of students may think decisions going against them are unfair, the Courts seem to take a different view. OIA decisions are subject to judicial review but around 80% of applications are refused simply because there is no basis to challenge them. Ask any footballer if they think the referee of a match their team lost was fair. You’ll probably find the proportion that do is a lot less than half.
The OIA does not provide consistent results. I had two complaints, one justified and the other partly justified, that the OIA decided to have reviewed by a second case handler after the first fell ill for an extended period. The first case handler obviously took her time and considered the evidence. I was happy to accept the justified complaint, but it was not made clear if I was able to accept one without the other. The OIA did not answer my questions or address my comments on this outcome—only the university’s.
The second case handler did not read any of the substantial documentation and elected to ring me and have me rehash extremely upsetting experiences by phone. He repeatedly downplayed the effect the events had on me. Later, when asked to actually conduct a proper review, he found my justified complaint unjustified and kept the other as is.
There must be consistency and, if the OIA, like so many other regulators, insists on issuing laughable monetary penalties when finding fault, universities in the UK will continue to treat students poorly, because it’s more cost effective than the alternative.
You are spot on. As much as they try to say that they’re transparent, they always bend towards the university. I have just had a similar experience with them as you stated above. They decided to take my appeal and complaint . They told me that the university had decided to settle my case whilst in the process of waiting for documents from the university. They told me if I chose not to agree with the university’s offer and decided tho proceed with the review, they would consider that the university made an offer to settle when determining my decision. This put me in a very compromising position. However, they mentioned that the university had agreed that they were wrong hence why they settled. When I asked them why they settled and what they meant by admitting they were wrong. I needed to know if both complaints were settled. I did not get answers as kept avoiding the questions. They told me that the settlement is for “ full and final settlement of both complaints”. Due to wanting the case to be over, I accepted the offer to settle. However, immediately after the university had sent the money to my account, the university turned around and stated that my appeal based complaint still stands even though they said both complaints were settled. When I informed the OIA, they simply said that the review is closed and cannot reopen because the university has sent money to my account. The case was, the university had wrongly interrupted abruptly me using chair’s action and this was due to an official error. In their correspondence the OIA had told the university that there was a “major maladministration”.
OIA cannot kick the mouth that feeds it. Hence why they will always find a way to side with universities. The universities have no fear or respect for the OIA because they know they would just pay off and everything would be swept under the carpet.
OIA said s only fair when it is backed against the wall when you have u disputable evidence.