NPC/01/10/A: UUK/SCOP Consultation on Independent Review of Student Complaints

Universities UK and SCOP

Consultation on Independent Review of Student Complaints

Response by the National Postgraduate Committee

On behalf of the National Postgraduate Committee I am pleased to respond to the Universities UK and SCOP consultation on the independent review of student complaints. I hope you find our comments helpful.

James Groves
General Secretary
National Postgraduate Committee


Executive summary

Primary legislation should be introduced to create statutory Independent Reviewers for student complaints in England, Wales and Scotland. The decision of an Independent Reviewer should be binding on both complainant and institution, subject to the proviso that both parties should have access to the Courts via judicial review. The mediaeval office of Visitor should be abolished.


The National Postgraduate Committee (NPC) is the representative body for postgraduate students in the UK. We organise meetings and conferences, publish best practice guidelines and seek to influence public policy on all aspects of postgraduate education. Our membership consists of affiliated students unions from across the UK; we have one full-time officer, the General Secretary, and fourteen voluntary officers. We work closely with the National Union of Students and the lecturers unions.

In recent years the NPC has shown a keen interest in student complaints procedures, both within institutions and externally. Our groundbreaking report Complaints in practice complaints in crisis (NPC, 1998), written by Don Staniford, illustrated just how far the sector had to go to meet basic standards of natural justice. In 1999 we sat on the QAA working group responsible for the section of the QAA Code of Practice dealing with student complaints and appeals procedures. In 2000 we responded to the CVCPs consultation on independent review panels, describing the CVCP proposals as realistic and necessary.

Responses to questions

1) Does your institution agree with the above analysis, and if not what modifications to it would you make, if any?

We disagree with your analysis on two counts:

(i) We do not accept that all HEIs have in place adequate internal procedures. While we recognise the situation has improved in the past three years, our experience is that, even now, significant numbers of students are being frustrated by inadequate complaints procedures within some HEIs. We will not dwell on this matter, as it is essentially separate to the issue of external review, save to urge HEIs not to be complacent.

(ii) We do not accept that HEIs should have the choice to participate or not in the arrangement; it should be a statutory requirement of designated HEIs that they participate. A voluntary scheme would lead to confusion among prospective complainants regarding whether or not the scheme applied at their HEI. Indeed there would then be three distinct arrangements for external review of complaints across the UK a voluntary system of independent review, the Visitorial system (for pre-1992 HEIs in England and Wales not participating in the voluntary system) and judicial review via the courts (for other HEIs not participating in the voluntary system). This would exacerbate the present lack of comparability of external review procedures within the UK. Our belief is that all students seeking external review should be treated within the same framework; this is the only way to ensure natural justice.

2) Does your institution agree with the above analysis?

Yes, though we would make one comment. The consultation document assumes it will always be clearly agreed by both the institution and the complainant that the institutions internal complaints procedures have been exhausted. We have experience of cases where the complainant has been erroneously told an internal adjudication is final when, in fact, there remains an internal route of appeal open to him/her. A complainant should not be denied access to the Independent Reviewer if his/her decision to seek external review is based on misleading information or vexatious behaviour on the part of the institution.

3) Given the analysis above, would your institution prefer the Independent Reviewers decisions to be:

(a) Advice only?

(b) Advice that in all but the most exceptional circumstances it would be assumed as a reasonable expectation that the deciding authority would accept?

(c) Binding as a result of legislative changes to your institutions instruments of government where this was necessary?

It should be binding on the institution, subject to the proviso that either party would have access to judicial review of the Independent Reviewers decision through the Courts. An advisory scheme cannot truly be viewed as a system of external review, and may well fall foul of the Human Rights Act 1998.

Legislative change will be needed to make the Independent Reviewers decisions binding, but this we feel is long overdue in any case. Primary legislation should:

(i) abolish the office of Visitor in the pre-1992 English and Welsh HEIs, and grant complainants in these HEIs access to the Courts via judicial review;

(ii) enable the governing bodies of other HEIs to delegate authority to a third party for the purpose of allowing external review of complaints;

(iii) establish a new statutory office of Independent Reviewer for HEIs, whose decisions would be binding on both complainants and HEIs, subject to the proviso that either party would still have access to the Courts via judicial review.

The NPC will not mourn the end of the Visitorial system. This under-resourced hangover from the feudal age has led to misery and a sense of injustice for many students in recent years. It:

(i) has little or no established procedures;

(ii) does not effectively publicise itself;

(iii) receives insufficient funding;

(iv) does not allow complainants to attend a hearing in person;

(v) is not perceived as being truly independent;

(vi) most unjustly, does not usually permit complainants access to the Courts through judicial review if they are unsatisfied with the Visitors decision.

The growth of HEIs, some or all of whose degrees are awarded by different HEIs, has led to increased confusion over the Visitorial jurisdiction. Consider the situation, which has happened at least once to our knowledge, in which a student is pursuing an appeal against a statutory higher education corporation whose degrees are awarded by a pre-1992 HEI with Visitor. He/she is enrolled at both HEIs. Should he/she seek external review of the higher education corporations decision via the Courts (as post-1992 HEIs decisions are subject to judicial review) or via the degree awarding HEIs Visitor (as the matter will decide the question of his/her continued membership of the degree awarding HEI)? The conflict of jurisdictions seems irreconcilable.

In our view the Visitorial system is likely to be incompatible with the Human Rights Act 1998 we look forward to a test case that will examine this view.

4) Does your institution agree that the range of decisions that the Independent Reviewer might reach should be as above?

We agree.

If it were concluded that an internal decision was not reasonable, even though the internal procedures had been properly followed, we believe the Independent Reviewer should have the power to rule on a substitute remedy. It will often not be possible for the institution and complainant to agree on a remedy acceptable to both, due to a breakdown of trust on both sides, and a binding decision by an Independent Reviewer will be the only way of successfully resolving the situation.

5) Should the Independent Reviewer have powers to rule/recommend recompense in the case of the outcome reached by the institution being considered unreasonable?

The Independent Reviewer should have the power to award recompense. This recompense should, when appropriate, take into account and be proportionate to any potential earnings foregone by the complainant as a result of his/her decision to study at the institution.

6) Do you agree with the duties included and excluded for the proposed Board/Council? Are there any further duties that should be either included or excluded?

We agree with the proposed duties for the Board/Council. In our opinion the Board/Council should be established as a statutory body through primary legislation.

We have one suggested change to the proposed list of things the Board/Council would not do. In our opinion the Board/Council should never comment on individual cases, even if asked to by the Independent Reviewer. Any such comments could compromise the independence of the Independent Reviewer. The proper place to seek additional comment is the Courts, through an application for judicial review of the Reviewers decision.

7) Do you agree with there being a majority of independent members on the Board/Council?

A majority of members should certainly be independent of the higher education sector. As, in our view, the Board/Council should be established as a statutory body, we believe this majority would need to be appointed by the government to ensure public accountability.

8) Do you agree with the list of stakeholders and the sectors from which independent members would be sought? Are there any further stakeholders or categories of independent members you would suggest?

We broadly agree with the proposed list of stakeholders and believe stakeholder representation from the sector is not incompatible with our preference that the Board/Council be a statutory body. Certainly Universities UK and SCOP should be included, and we also suggest representation for the Committee of University Chairmen (CUC).

Provision should be made on the Board/Council for trades unions (as the majority of student complaints involve the conduct of members of staff) and the National Union of Students. We also, perhaps unsurprisingly, believe the National Postgraduate Committee should be represented; postgraduate students, after all, make up a significantly high proportion of student complainants.

We broadly concur with the proposed categories of members independent of the sector; we believe, for reasons given in our answer to question 7, that the government should appoint these. These members should include appointees from the legal profession; certainly the chair of the Board/Council should have some experience of administrative and contract law.

9) Should there be one Independent Reviewer with one office or should there be one office with the possibility of having separate Independent Reviewers for England, Scotland and Wales explored (whilst noting the separate consideration being given to this matter by Universities Scotland)?

We believe there should be separate Independent Reviewers, with separate offices and separate Boards/Councils, for England, Wales and Scotland. This is the only possible system that respects the distinct legal, administrative and financial structures of English, Welsh and Scottish higher education.

The Independent Reviewer should, we believe, be a qualified lawyer who is experienced in the law of higher education. The proposal that he/she should merely have an understanding of the purposes and the values of higher education is, to us, inadequate. Higher education law is intricate and demanding; only a qualified lawyer would do the position of Independent Reviewer justice.

10) Do you agree with the categories of staff and functions described above? Are there any further categories of staff or functions that should be added?

We agree with the categories of staff and functions outlined. Although we recognise the scheme will be relatively small when compared to, for example, the Local Government Ombudsman Scheme, we urge that sufficient full-time administrative staff be employed to ensure efficiency, continuity and that case officers have as little an administrative workload as possible.

11) Do you agree with the areas of the process identified and the proposed approach to each area? Are there any elements missing from the approaches suggested or areas that have been overlooked?

Publicity we believe HEIs should be required to publicise the existence of the Independent Reviewer to all students.

Standard forms proper provision must be made to respect those who wish to submit a complaint in a language other than English. The Welsh Language Act 1993, current and future legislation protecting the Gaelic language and recent equal opportunities legislation such as the Race Relations Amendment Act 2000 must be respected.

Timeliness the Independent Reviewer should recognise that internal decisions may occasionally, with good reason, be validly submitted for external review months if not years after the event. A procedural irregularity, for example, may take years to come to the attention of the student. For this reason there should be no blanket cut-off period beyond which complaints would not be considered.

Filtering if a complaint is rejected due to being premature, frivolous, vexatious or outside the Independent Reviewers jurisdiction, the decision to reject should be open to challenge in the Courts via judicial review.

Investigation we strongly believe that both parties should be entitled to have their case heard in person at a hearing. This is the only way to respect the principles of natural justice and the Human Rights Act 1998. Furthermore the Independent Reviewer should be granted the power to visit institutions and examine files it is unacceptable that he/she must rely solely on both parties interpretations of events.

12) Do you agree with the approach, albeit tentative, to estimating the number of complaints as a basis for initial planning? If not, do you have an alternative approach?

We believe the assumptions made may be unduly conservative. The principal reason why potential complainants do not, in fact, complain is that they are unaware of their institutions internal complaints procedures. As institutions improve the accessibility and transparency of their internal complaints procedures, building on the QAA Code of Practice, it is likely that more students will take the opportunity to formally complain. This in turn is likely to lead to more students seeking external review of internal adjudications.

13) Do you agree with the approach, albeit tentative, to estimating the cost per complaint as a basis for initial planning? If not, do you have an alternative approach?

We broadly agree with this tentative approach.

14) Do you agree that the Department for Education and Skills should be approached to provide start-up and core funding for the Independent Reviewer to ensure it is seen as independent and has long-term stability? If not, could you suggest other sources of funding?

We disagree that if the Independent Reviewer were created by legislation, this would be an imposed solution and it could be argued that this would diminish commitment to an initiative that should be led by the sector. We believe the sector should welcome a statutory Independent Reviewer, for the reasons outlined in our answer to question 3. We see no reason why statutory status should be in any way incompatible with the schemes independence.

We believe that, as part of primary legislation to create the position of Independent Reviewer, the government should commit to providing both start-up and core funding for the scheme.

15) Do you agree that institutions should pay a nominal subscription to the Independent Reviewer? Do you agree that it should be 500 or a total subscription of 10% of the cost? If not, could you suggest an alternative way that institutions could take a stake in the scheme or other ways of arriving at a subscription level?

We do not believe the Independent Reviewer should be funded by the higher education sector; this would compromise its independence in the eyes of many complainants. It should be a statutory scheme receiving funding from the government.

16) Do you agree with the principle that some attempt should be made to account for institutions that have a larger number of complaints going to Independent Review? Do you agree that this should be done by way of a case fee of 100 or, say, 10% of the average cost per complaint? If not, can you suggest an alternative?

As discussed in our answer to question 15, we do not believe the Independent Reviewer should be funded by the higher education sector.

17) Do you agree that students should not be charged for seeking independent review of their complaints? If not, what would you suggest should be done?

We agree.

18) Are these suitable contents for the annual report? Are there any other items that could be included? Are there other mechanisms of accountability that would not compromise independence?

We concur with the suggested contents for an annual report; we believe, however, that the Board/Council should be accountable to the legislature as a statutory body, and not to an Annual General Meeting of HEIs. Having an Annual General Meeting of HEIs would imply that ultimate accountability for the scheme was solely to institutions and not to complainants. Students will not see such a scheme as independent or fair and neither, we contend, will the Courts.

We believe the Independent Reviewer for England should be accountable to Westminster, the Independent Reviewer for Scotland should be accountable to the Scottish Parliament and the Independent Reviewer for Wales should be accountable to the National Assembly for Wales.

19) What view does your institution have about staff complainants having access to an Independent Reviewer, provided that the complaints are not related to their terms and conditions of service?

We believe that, on matters not related to their terms and conditions of service, staff should have access to an Independent Reviewer. The arguments used in our answer to question 3 may certainly be applied to staff as well as students. Many students, particularly postgraduate students, are members of staff also.

It should be entirely possible to extend our proposed statutory Independent Reviewers role to cover such complaints by staff. We encourage the government and the sector to consult with a view to achieving this as soon as is practical.