Are OIA decisions on free speech compatible with OfS guidance?

Alongside announcing that she would seek to repeal the statutory tort and the duties on SUs, she said she would remove the “confusing duplication” of complaints schemes by sending students to the Office of the Independent Adjudicator rather than the Office for Students.

Returning to it in April, she declined to commence the scheme for students because they already have access to “an excellent complaints scheme” at the OIA.

The core free speech duties have been in force since 1 August 2025. OfS published Regulatory advice 24 on 19 June 2025 and reissued it in amended form on 5 August 2026, having lost badly in the High Court in between, and its own complaints scheme opens on 1 September 2026 for staff, visiting speakers and non-student members, applying only to acts from that date.

Which brings us to a new OIA casework note on free speech alongside seven case summaries – five Not Justified, one Partly Justified, and one Settled for £5,000 after the provider looked again and folded.

It is the first proper sight of how the body that will adjudicate student complaints in the new free speech landscape is framing its task, and the potentially problematic answer is that it does not go about it the way the OfS does at all.

How we got here

The logic of the split is sound as far as it goes – as the OIA pointed out back in 2021, students very rarely complain about free speech alone, and these complaints arrive bundled with academic appeals, disciplinary matters or fitness to practise, needing review as a whole rather than filleted into a free speech bit and a residue.

The difficulty is that having made that sensible choice, the government has created structural reasons why the OIA may reach a different view on materially identical facts.

For a start, it is a different body doing a different job. Its remit under the Higher Education Act 2004 covers any “act or omission of a qualifying institution”, and the note is unusually explicit that its role is not to decide for itself whether particular speech was acceptable, nor to substitute its judgment for the provider’s.

It asks whether procedures were followed, whether those procedures were reasonable, whether the provider took account of the legal and regulatory responsibilities relevant to the case, and whether the final decision was reasonable – with guidance as context for a reasonableness judgment rather than a test.

The OfS scheme, by contrast, determines whether the statutory free speech duty has actually been breached, with RA24 setting out its three-step framework around lawfulness, reasonably practicable steps and proportionality.

As such, it is not the OIA’s job to enforce RA24 or determine for itself whether the provider breached the statutory duty. It asks whether the provider took account of the responsibilities relevant to the case and whether the decision it eventually reached was reasonable.

That is more than checking that somebody filled in the right boxes. But it still leaves the provider a margin of judgment that the OfS does not have when it is deciding directly whether, on the balance of probabilities, the statutory duty has been breached. A provider can pass one and fail the other.

Where the two frameworks agree

To be fair, the outcomes mostly point the same way.

In CS082604 a student complained about gender critical comments made by others in the chat box of an online session on the roles of women, and the provider – recognising both gender reassignment and gender critical belief as protected – decided they were the sort of thing students may express in an academic space even where others find them offensive.

The OIA’s call was Not Justified – which is to all intents and purposes condition E6.11(j)’s rebuttable presumption.

CS082606 goes further. A student disciplined after a pro-Palestinian rally, both for refusing to remove signs reading “we are all anti-Zionists” and for disruption that caused a building to be locked, was Partly Justified.

For the OIA, the signs decision was unreasonable because the provider weighed community distress without properly considering whether the speech was lawful. The disruption finding was sound because teaching had actually been disrupted. That is OfS Step 1 and its “essential functions” material in all but name.

Even in those apparently aligned cases, there are hints of where the tests could diverge. In CS082603 the OIA approved the use of expectations around “respectful, reasoned debate”, while in CS082604 it noted that the gender critical comments had not been “overtly disrespectful”. RA24 is more wary of that sort of language – controversy or offence is not itself a relevant reason for restricting lawful speech, and rules have to be sufficiently precise and foreseeable. So “disrespectful” could not by itself do the work of justifying intervention.

And in CS082606 the OIA treated actual disruption to teaching as enough to make a disciplinary finding reasonable. RA24 certainly treats interference with teaching as relevant to the university’s essential functions, but it would still require any restriction to satisfy Step 3 – to be prescribed by law and proportionate. None of that means the OIA reached the wrong result in any of the three cases. It does mean that even where the outcomes converge, the route to them is not quite the same.

Where they don’t

In CS082601 a postgraduate researcher working on gender identity failed a progress exam, with examiners raising concerns about the literature review and the writing and also an ethical concern about the research survey, which they said should be paused.

The OIA called the complaint Not Justified. On the crucial survey point, it concluded that whether the research presented an ethical risk was academic judgment – a judgment requiring relevant academic expertise – and therefore outside the substance of what it could review.

The problem is that paragraph 196 of RA24 pulls the other way, asking that ethical review stay focused on ethical issues rather than importing requirements related to research quality, and be monitored for evidence of unnecessary suppression of research.

There is a milder version of the same problem in CS082602, where a student alleged that political views expressed in assessed work had influenced their marks. The provider arranged a fresh review by another academic, who found that the original marking was accurate, unbiased and based on the assessment criteria, so there is little reason to think OfS would have reached a different substantive result.

But the jurisdictional difference is still there – the OIA ultimately treated the remaining challenge as academic judgment, while the OfS scheme expressly allows the regulator to obtain expert academic judgment in order to determine a free speech complaint. In this case the evidence happens to close the gap. In another one, it might not.

In another case, a student in halls was found to have breached conduct rules twice – for singing part of the old German national anthem as a joke, and for questioning whether asexuality could be considered a sexuality – the provider deciding both times that this was anti-social behaviour because it was inappropriate and offensive, and also hate speech.

Once the OIA sent the complaint over, the provider conceded that it had not followed the correct procedures, settling for £5,000, an apology and removal of the findings.

The outcome makes sense. But because the case settled, nobody adjudicated whether a code capable of catching lawful speech merely because it was “inappropriate and offensive” survives paragraphs 155 to 158 of RA24, which require rules restricting lawful speech to be precise enough to be foreseeable and not so broad as to suppress a legally expressible viewpoint.

The settlement records that the provider was taking steps to improve its handling of similar cases. It tells us nothing about whether the underlying rule itself was reviewed.

What happens now

From 1 September 2026, the same incident on the same campus can generate two external reviews on two different tests.

A visiting speaker whose event is cancelled can complain to the OfS, which asks whether the statutory free speech duty was breached, using lawfulness, reasonably practicable steps and proportionality to work that out.

A student disciplined for protesting that cancellation can complain to the OIA, which asks whether the provider followed a reasonable process, took account of the relevant legal and regulatory responsibilities, and reached a reasonable conclusion.

Nothing requires the two to align, and no mechanism exists for resolving it when they don’t.

It’s a minefield for providers, and for students the position is worse, because the split was sold as a simplification.

What they have instead is one route to individual redress, an adjudicator applying a different legal test from the regulator, and an exclusion to the extent that the complaint turns on academic judgment.

Students can still send regulatory information to OfS about failures by registered providers. What they can’t do is ask OfS to adjudicate their individual free speech complaint or secure a personal remedy through its complaints scheme.

When Phillipson announced the split in January 2025, Baroness Barran asked in the Lords what would happen if standards of protection diverged, or if a member of staff went to OfS and a student went to the OIA “on the same case”. That was the question then. It remains the question now.