by Jeremy Hoad
CVCP 1/00/84 and 84(a): Independent Review Panels: A Consultation
The NPC welcomes the proposals put forward by the CVCP for Independent Review Panels in HE as evidence of substantive engagement in the issues surrounding student complaints and appeals. For the purposes of this document we will not address the background to the proposals in detail but will concentrate on the proposals as outlined and possible alternatives.
The Current Situation
The mechanisms currently in place for dealing with complaints in HE are confusing, inconsistent, frequently confrontational and often unnecessarily protracted.
The NPC recognises that many institutions have made significant improvements to their internal procedures recently. We also anticipate that the QAA Code of Practice on student complaints and appeals will help to substantially improve institutional practice. It is important to recognise that if institutions have clear, effective and swift procedures for dealing with student complaints internally then there is a much higher likelihood that disputes will be able to be resolved without ever having recourse to any external review element.
The NPC believes that the best way to resolve difficulties is to deal with them at as low a level as possible and to avoid the use of formal procedures. This is recognised by the QAA Code and should always be a key principle of resolving difficulties. For this to happen institutions should embrace the issue of complaints at all levels and support their staff and students in raising problems as soon as possible. We believe that staff and students should feel that they are encouraged to raise issues of concern and that these issues are monitored and acted upon by the institution to prevent further dissatisfaction or confrontational situations developing. This is much more likely to happen if those involved are unclear of the relevant procedures.
Where formal procedures are used there will always be instances of dissatisfaction or further complaint. It is here that the HE sector currently fails in meeting the recommendations of the Dearing Committee and is likely to face difficulties when the Human Rights Act and Freedom of Information Act come into force. The situation is further confused by the existing articles of governance affecting institutions. Different situations exist for institutions which incorporate a Visitor and those institutions, mostly post-1992, which are limited in their power to institute a form of independent, external review which is consistent with the Human Rights Act. It is largely because of these difficulties that the QAA was unable to address the issue of independent, external review and it is this area which needs urgent attention.
The NPC believes that the current procedures for all HE institutions in dealing with complaints are inadequate and confusing. It is not helpful to apportion blame or responsibility for the current situation to any one organisation or group. Institutions, representative bodies and the Government must now work together to address the problems facing the sector and develop a robust solution.
Unfortunately there is not one obvious solution which addresses the difficulties currently facing the HE sector with regard to dealing with complaints once internal processes have been exhausted. The NPC has consistently identified guiding principles for whatever solution is adopted including:
- justice must not only be done but be seen to be done
- formal proceedings should be avoided if possible
- provision of information and support for complainants
- avoidance of confrontation
- due process must be followed
- timely enactment of processes
- opportunity for representation
- the sharing of evidence between parties
- transparency of process
- consistency and comparability of procedures
- clear explanation of alternative routes to resolution
- opportunity for redress
- reasons provided for any decisions made
- any panel or person implementing external review elements must be fully independent of the institution
- mechanisms must be in place to monitor and review complaints systems and results
With these guiding principles in mind we will address here the two alternatives highlighted in the consultation document: Independent Review Panels and an Ombudsman.
Independent Review Panels
The proposals for Independent Review Panels are realistic and necessary. We concur with the CVCP that use of this stage in a complaints procedure should be rarely used. This is, nevertheless, dependent upon effective internal procedures being in place for dealing with complaints. At this stage we cannot say that the sector has reached this goal yet. We would therefore welcome the opportunity to work with other bodies to improve current practices.
Although the paper states that "...the necessity for independent review should be one of last resort." (para. 13) it is important to make clear that this is in relation to the procedures with which institutions are more directly involved. Whatever happens in the course of a complaint once these procedures are exhausted a complainant would still have the right to legal action.
Currently there is much confusion and dissatisfaction because students are prevented from taking this route to resolution until all internal procedures have been exhausted. This is not because all students automatically want to go to law straight away but because current internal processes and external review mechanisms (particularly through the visitorial system) are insufficient. The delays and confusion surrounding current practices lead
students to believe that they are disadvantaged in their engagement with complaints procedures and that institutions are adopting delaying tactics to discourage continuation with a complaint.
The Nature of Complaints and Matters Appropriate for Independent Review
Regarding the nature of complaints and the matters appropriate for independent review the consultation paper is clear and we are in agreement with these guiding principles.
A particularly important point here is the distinction between academic judgments and the provision of services by institutions. The NPC believes that complaints procedures should not be empowered to make academic judgments or to overturn the recommendations of examiners, either internal or external. This would undermine the independence and expertise of institutions. However, there should be clear mechanisms for academic appeal and guidance to students on the appropriate routes to take depending on the nature of their complaint.
We believe that the identification of the primary purpose of a reference to independent review in the paper is crucial and lies at the heart of what would make such a process successful. We agree absolutely that this should be the "speedy investigation and conciliation, on as non-adversarial a basis as possible, resulting, normally, in a mutually acceptable conclusion." (para. 16).
The Powers of an Independent Review Panel
We believe that the powers of an independent review panel need further consideration. The powers identified by the paper are reasonable but we do not believe they go far enough. If the panel system is to be respected as truly independent it should be empowered to do more than make "observations" or propose that there is a rerun of the internal processes. At the very least the panel should have the power to make recommendations (rather than "observations") in relation to both individual cases and institutional practice. These should include options such as: financial recompense; the extension or continuation of study; the opportunity to resubmit or resit elements of a course of study; and the reconsideration of claims made by the institution with regard to courses or services. Additionally, it would be appropriate for a panel to make a judgment regarding whether there was fault on either side and, if so, to identify the nature of that failure.
The Number of Panels
The NPC strongly believes that consistency, comparability and equality need to be developed in the consideration of complaints by any independent, external process. Therefore we do not believe it would be helpful to have several different panels around the UK. However, we further believe that it would be necessary to have more than one group or panel to consider complaints. A single Panel for dealing with complaints would therefore need a number of sub-groups to deal with cases from different institutions and from different geographical locations. These would adhere to guidance developed centrally but have the benefit of closer knowledge and awareness of regional or local circumstances and practices.
Composition of and Selection for Panels
One of the key problems with current practices is that Visitors or members of Review Boards are not always seen to be truly independent of the institution with which they are associated. For any system of independent, external review it is a fundamental principle that the persons involved should be completely independent of the institution.
We agree also that relevant knowledge should be in evidence regarding "financial, educational, commercial, legal, welfare and social matters" and that any Panel or sub-group thereof should have "an appropriate mix of gender, ethnicity and age" (para. 21).
We do, however, have reservations about the claim in the paper that "Ideally, every Panel should have a qualified lawyer as its Chairman or Chairwoman" (para. 21). The NPC believes that legal opinion is often a necessary prerequisite for the informed decision-making processes involved in complaints cases. However, even at this late stage in the process, legal opinion should not be the driving force behind that decision-making process. Setting as a prerequisite or expectation the appointment of a lawyer as Chairman or Chairwoman of every Panel would give strong messages to students that the sector was attempting to protect itself from litigation and taking an unduly legalistic approach to the consideration of complaints cases.
A far better solution would, in our opinion, be to provide each Panel or sub-group with access to legal opinion to enable them to make informed decisions where legal aspects of a case were relevant. This could be done by having a lawyer on each Panel or sub-group. However, this sets a precedent in terms of the selection of individuals for the group. It would seem more appropriate to draw on legal expertise as and when necessary through the engagement of a law firm either on a fixed basis or to deal with specific aspects of cases when this was deemed necessary by the Panel.
On a wider level the appointment of individuals to Panels or sub-groups of a central Panel is something which the proposals do not address sufficiently. The idea that a law firm is appointed to conduct a search for Panel candidates and act as an administrative and legal framework for the work of the Panels is not convincing. It could clearly be claimed that this process would not meet the requirements for independence which are fundamental not only to the individual members of a Panel but to the existence and structure of Panels themselves. If a law firm were acting on behalf of an institution in this way it could be seen that institutions still had an undue influence over the constitution and working of Panels.
A similar problem exists currently with institutions with no Visitor where members of their Boards of Governors are appointed to review complaints cases. This is something which the paper recognises itself with the expectation that there will need to be a "change in their articles of government to provide them with that power [to provide for independent review]" (paras. 11-12).
The NPC feels that the proposals for Independent Review Panels are generally positive and recognise the requirements for independent, external review of complaints that are not in place under the current arrangements. However, we are disappointed that the idea of an Ombudsman is situated in the proposals as something that the sector "should at least explore, if only for the longer-term, and as these matters evolve" (para. 25).
The NPC believes that there exists an opportunity now for radical reform of the system for dealing with complaints in higher education. There is growing evidence that the current procedures for independent, external review are inconsistent, slow, administratively overwhelmed and structurally flawed. There is added urgency to deal with the situation effectively as a result of the forthcoming legislation on Human Rights and Freedom of Information. Although the proposals for Independent Review Panels contain many excellent ideas it seems that they avoid engaging fully with the opportunity for reform that now presents itself.
As the paper recognises there are a number of obvious advantages to having an Ombudsman for higher education. The main advantages are summed up well in the paper as:
- It would provide a proper administrative framework, independent of HEIs.
- It would provide a permanent, central arbiter who would be able to set down the rules for the conduct of the reviews by the agents which would apply throughout the sector, and also ensure consistency in the conclusions reached by scrutinising the reports received and building up a body of case studies.
- The Ombudsman would be responsible for appointing the agents, with no involvement in the process by HEIs themselves, thus ensuring the true independence of the agents.
- The existence of similar arrangements in other fields of public life would provide some reassurance that higher education provided equally sound safeguards. (para. 26)
- A system of independent, external review organised through an Ombudsman would command the respect of participators in higher education and the wider public.
- A single system for dealing with complaints would provide clarity and consistency across the whole sector.
- The establishment of an Ombudsman would avoid further delay and the perpetuation of confusion and obfuscation associated with the current practices.
- The use of agents would provide the flexibility and local/regional sensitivity to HEI circumstances while adhering to centrally recognised principles and procedures.
- A move directly to the establishment of an Ombudsman would avoid the development of Independent Panels as an interim measure which would still be subject to challenge on grounds of independence.
We therefore believe that there is a contradiction in the paper between the earlier statement that: "...there was no compelling case for a uniform system across the HE sector, and that HEIs 'must be free to opt for whatever arrangements they judge to be most appropriate and in harmony with their existing structures and particular needs'". (para. 4) and the later strong arguments for the consistency, independence and clarity offered by the implementation of an Ombudsman.
Institutions without a Visitor will require amendments to their articles of government to enable them to meet the requirements of forthcoming legislation. Other institutions would need legislation to amend the role of the Visitor for similar reasons. There is recognition within the sector that it needs to urgently address difficulties regarding how complaints are dealt with. There is also a growing consensus that the nature of independent, external review needs radical reform and an opportunity exists to achieve something positive and long term. Also, the Government has now signalled its willingness to support the sector and provide enabling legislation to achieve sensible change.
Many of the ideas contained in the CVCP proposals for Independent Review Panels could usefully serve as a model or starting point for the development of a national Ombudsman. One of the most useful features is the idea of agents, comparable to the individual Panels or sub-groups proposed in this paper. The NPC believes that a single office dealing with all complaints cases would not necessarily be the most appropriate way to address the diverse nature of higher education in the UK and respect the individual circumstances and practices of UK HEIs.
For these reasons and for the reasons outlined above the NPC strongly recommends that proposals are further developed to establish an Ombudsman for Higher Education which proves to those within the sector and to the wider public that higher education in the UK recognises its responsibilities and learns from past experience to introduce a system which is fair, transparent and swift.