Category: complaints

  • Students don’t think anything will change. They’re probably right

    Students don’t think anything will change. They’re probably right

    The standout quote for me from new Office for Students (OfS) commissioned research on student consumer rights comes from a 21-year-old undergrad in a focus group:

    If you were unhappy with your course, I don’t know how you’d actually say to them, ‘I want my money back, this was rubbish,’ basically. I don’t think that they would actually do that. It would just be a long, drawn-out process and they could just probably just argue for their own sake that your experience was your experience, other students didn’t agree, for example, on your course.

    There’s a lot going on in there. It captures the power imbalance between students and institutions, predicts institutional defensiveness, anticipates bureaucratic obstacles, and reveals a kind of learned helplessness – this student hasn’t even tried to complain, and has already concluded it’s futile.

    It’s partly about dissatisfaction with what’s being delivered, and a lack of clarity about their rights. But it’s also about students who don’t believe that raising concerns will achieve anything meaningful.

    Earlier this year, the regulator asked Public First to examine students’ perceptions of their consumer rights, and here we have the results of a nationally representative poll of 2,001 students at providers in England, alongside two focus groups.

    On the surface, things look pretty healthy – 83 per cent of students believe the information they received before enrolment was upfront, clear, timely, accurate, accessible and comprehensive, and the same proportion say their learning experience aligns with what they were promised.

    But scratch a bit and we find a student body that struggles to distinguish between promises and expectations, that has limited awareness of their rights, that doesn’t trust complaints processes to achieve anything meaningful, and that is largely unaware of the external bodies that exist to protect them.

    Whether you see this as a problem of comms, regulatory effectiveness, or student engagement probably depends on where you sit – but it’s hard to argue it represents a protection regime that’s working as intended.

    Learning to be helpless

    Research on complaints tends towards five interlocking barriers that prevent people from holding institutions and service providers to account – and each of them can be found in this data.

    There’s opportunity costs (complaining takes time and energy), conflict aversion (people fear confrontation), confidence and capital (people doubt they have standing to complain), ignorance (people don’t know their rights), and fear of retribution (people worry about consequences). In this research, they combine to create an environment in which students who experience problems just put up with them.

    When they were asked about the biggest barrier to making a complaint, the top answer was doubt that it would make a difference – cited by 36 per cent of respondents. The polling also found that 26 per cent of students said they have “no faith” that something would change if they raised a complaint, and around one in six students (17 per cent) disagreed with the statement “at my university, students have a meaningful say in decisions that affect their education.”

    One postgrad described the experience of repeatedly raising concerns about poor organisation:

    People also just don’t think anything’s going to happen if they make a complaint, like I don’t think it would. With my masters’, it was so badly organised at the start, like we kept turning up for lectures and people just wouldn’t turn up and things like that […] We had this group chat and we were all like, ‘What’s going on? We’re paying so much money for this,’ and […] it just seemed like no one knew what was going on, but we raised it to the rep to raise it to like one of the lecturers and then […] it would just still happen. So it’s like they’re not going to change it.

    That’s someone who tried to work the system, followed the proper channels, raised concerns through the designated representative – and concluded it was futile.

    The second most common barrier captures the opportunity costs thing – lack of time or energy to go through the process, cited by 35 per cent. Combined with doubting it would make a difference, we end up with a decent proportion of students who have cost-benefit analysed complaining and decided it’s not worth the effort. Domestic students were particularly likely to cite futility as a barrier – 41 per cent versus 25 per cent of international students.

    They’ve learned helplessness – and only change their ways when failures impact their marks, only to find that “you should should have complained earlier” is the key response they’ll get when the academic appeal goes in.

    Fear of retribution is also in there. About a quarter of students cited concern that complaining might affect their grades or relationships with staff (25-26 per cent) or said they felt intimidated or worried about possible consequences (23-26 per cent). A postgraduate put it bluntly:

    I think people are scared of getting struck off their course.

    Another student imagined what would happen if they tried to escalate to an external body:

    I think [going to the OIA] would have to be a pretty serious thing to do, and I think that because it’s external to the university, I’d feel a little bit like a snitch. I would have to have a lot of evidence to back up what I’m saying, and I think that it would be a really long, drawn-out process, that I ultimately wouldn’t really trust would get resolved. And so I just wouldn’t really see it as worth it to make that complaint.

    That’s the way it is

    What are students accepting as just how things are? The two things students were most likely to identify as promises from their university were a well-equipped campus, facilities and accommodation (79 per cent) and high quality teaching and resources (78 per cent).

    Over three-quarters of students said the promises made by their university had not been fully met – 59 per cent said they had been mostly met, 14 per cent partially met and 1 per cent not met at all, leaving just 24 per cent who thought promises had been fully met.

    Yet fewer than half of respondents said these were “clear and consistent parts of their university experiences” – 42 per cent for physical resources and just 37 per cent for teaching and resources. In other words, the things students most clearly remember being promised are precisely the things that, for a large minority, show up as patchy, unreliable features of day-to-day university life rather than dependable fixtures.

    There’s also a 41 percentage point gap between what students believe they were promised on teaching quality and what they report actually experiencing – 78 per cent say high quality teaching and resources were promised, but only 37 per cent say that kind of provision is a clear and consistent part of their experience. Public First note that “high quality” wasn’t explicitly defined in the polling, so these are students’ own judgements rather than a technical standard – but the size of the mismatch is still striking.

    About a quarter of students (23 per cent) reported receiving lower quality teaching than expected, rising to 26 per cent among undergraduates. Twenty-two per cent experienced fewer contact hours and more online or hybrid teaching than expected, and twenty-one per cent reported limited access to academic staff.

    One undergraduate described being taught by someone who made clear he didn’t want to be there:

    One of our lecturers, he wasn’t actually a sports journalism lecturer, he’s just off the normal journalism course, and he made it pretty clear that he didn’t like any of us and he didn’t want to be there when he was teaching us. And we basically got told that we had to go and get on with it, pretty much. So there wasn’t any sort of solution of, ‘We’ll change lecturers,’ or anything, it’s just, ‘You’ll get in more trouble if you don’t go, so just get on with it and finish it.

    When presented with a list of possible disruptions and asked which they’d experienced, 70 per cent identified at least one type. The most common was cancellation or postponement of in-person teaching, reported by 35 per cent of undergraduates. Industrial action affecting teaching or marking hit 20 per cent of students overall, and 16 per cent said it had significantly impacted their academic experience.

    Limited support from academic staff affected 20 per cent overall, rising to one in four postgraduate students – and this was the disruption that students were most likely to say had significantly impacted their experience (23 per cent overall, climbing to 32 per cent among international students).

    Telling is how dissatisfied students were with institutional responses to disruptions. Forty-two per cent said they were not that satisfied or not at all satisfied with their institution’s response to cancelled or postponed teaching – 45 per cent said the same about the response to strikes or industrial action. In other words, students experienced disruption, they weren’t happy with how it was handled, and yet most didn’t complain, because (again) they didn’t think it would achieve anything.

    Informal v informant

    Unsurprisingly, most students (65 per cent) had never lodged a formal complaint against their institution. On its face, that could look like satisfaction – if students aren’t complaining, perhaps things are generally fine. But when you dig into the reasons students give for not complaining, about one in four students (24 per cent) who hadn’t complained said they weren’t confident they’d know how to go about it – that’s the ignorance barrier.

    And the bigger obstacles weren’t procedural – they were about believing it was pointless or fearing consequences.

    When students did complain, they were at least twice as likely to have done so through informal channels (such as course representatives or conversations, 23 per cent) than through formal procedures (11 per cent). That’s your conflict aversion in action – you try the informal route first, see if you can get something fixed quietly without escalating to a formal process that might create confrontation.

    But it also means the formal complaints processes that are supposed to provide accountability and redress (and documented institutional learning) are being bypassed by students who’ve concluded they’re not worth engaging with.

    Among those who did complain formally, around half (54 per cent) felt satisfied with their institution’s handling of it – which means nearly half didn’t. So if you’re a student considering whether to raise a complaint, and you believe there’s roughly a 50-50 chance it won’t be handled satisfactorily, if you’ve already concluded there’s a strong likelihood it won’t change anything anyway, why would you bother?

    Especially when you add in the other barriers – concern it might affect grades or relationships with staff, feeling intimidated or worried about consequences, lack of trust in the university to handle it fairly.

    The focus groups reinforce the picture of systematic dismissal. One undergraduate explained the calculation:

    If you were unhappy with your course, I don’t know how you’d actually say to them, ‘I want my money back, this was rubbish,’ basically. I don’t think that they would actually do that. It would just be a long, drawn-out process and they could just probably just argue for their own sake that your experience was your experience, other students didn’t agree, for example, on your course.

    That’s someone that has already mapped out in their head exactly how the institution would respond – they’d argue it’s subjective, other students were happy, your experience doesn’t represent a breach of contract. And, of course, they’re probably right.

    An entitled generation

    If students don’t believe complaining will achieve anything, part of the reason is that they don’t really understand what they’re entitled to expect in the first place. The research found that only 50 per cent of students said they understood and could describe their rights and entitlements as a student – which very much undermines the whole premise of students as empowered consumers able to hold institutions to account.

    When asked how well informed they felt about various rights, the results were even worse. Only 32 per cent of students felt well informed about their right to fair and transparent assessment – the highest figure for any right listed. More than half (52 per cent) said they felt not that well informed or not at all informed about their right to receive compensation. You can’t assert rights you don’t know you have.

    The focus groups then show just how fuzzy students’ understanding of “promises” really is. Participants found it difficult to identify what had been explicitly promised to them, with received ideas about higher education playing a significant role in shaping student expectations.

    They could articulate areas where their experiences fell short – reduced contact hours, poor teaching quality, limited access to careers support – but struggled to identify where these amounted to broken promises.

    One undergraduate captured this confusion as follows:

    I personally think I do get what I was promised when I applied to university. Not like I’m an easy-going person or anything, but I do get what I need in the university, yes.

    Notice the subtle shift from “promised” to “need” – the student can’t quite articulate what was promised, so they fall back on whether they’re getting what they need, which is a much vaguer and more subjective standard.

    This matters a lot, because if you don’t know what you were promised, you can’t confidently assert that a promise has been broken. You might feel disappointed, you might think things should be better, but you can’t point to a specific commitment and say “you told me X and you’ve given me Y.”

    Which means that even when students want to complain, they’re starting from a position of uncertainty about whether they have grounds to do so. It’s the perfect recipe for learned helplessness – you’re dissatisfied, but you’re not sure if you’re entitled to be dissatisfied, so you conclude it’s safer to just accept it.

    The one clear exception? Doctoral students, who were confident they’d been promised the support of a supervisor:

    When I was applying for a PhD, I applied to several universities, so I was selected and accepted in [Institution A] and [Institution B], but I decided to come to [Institution A] for the supervisor – he interviewed me, he sent me the acceptance letter.

    Getting on the escalator

    If the picture so far suggests a system where students lack confidence in internal complaints processes, the findings on external avenues for redress make sense. Only 8 per cent of all students had heard of the Office of the Independent Adjudicator (OIAHE), and the focus groups confirm there was “little to no awareness of external organisations or avenues of redress for students”.

    More broadly, more than a third (35 per cent) of students said they were unaware of any of the external organisations or routes listed through which students in England can raise complaints about their university – rising to 41 per cent among undergraduates and 38 per cent among domestic students. The list they were shown included the OIA, the OfS, Citizens Advice, solicitors, local MPs, the QAA, and trade unions or SUs like NUS. More than a third couldn’t identify a single one of these as somewhere you might go with a concern about your university.

    As for OfS itself, just 18 per cent of students overall had heard of it, falling to 14 per cent among undergraduates. Let’s go ahead and assume that they’ve not read Condition B2.

    When asked where they would go for information about their rights, the most common answer was the university website (53 per cent) or just searching online (51 per cent). About 42 per cent said they’d look to their SU for information about rights. That’s positive – SUs are meant to provide independent advice and advocacy for students. But the fact that only 42 per cent think to go there, versus 53 per cent who’d go to the university website, suggests SUs aren’t being seen as the first port of call.

    Among postgraduates in the focus groups, there was “limited interest in the use of these avenues for redress”, with the implicit sense that if intra-institutional channels of redress seemed drawn-out, daunting and potentially fruitless, it was unlikely that “resorting to extra-institutional channels would make the situation better”. If students have concluded that internal processes are bureaucratic and ineffective, they’re not going to invest additional time and energy in external ones – especially when they don’t know those external routes exist in the first place.

    Explorations

    It’s an odd little bit of research in many ways. It’s hard to tell if recommendations have been deleted, or just weren’t asked for – either way, they’re missing. It’s also frustratingly divorced from OfS’ wider work on “treating students fairly” – I know from my own work over the decades that students tend initially to be overconfident about their rights knowledge, only to realise they’ve over or undercooked when you give them crunchier statements like these “prohibited behaviours” (which of course only seem to be “prohibited”, for the time being, in providers that will join the register in the future).

    More curious is the extent to which OfS knows all of this already. Six years ago this board paper made clear that consumer protection arrangements were failing students on multiple fronts. It knew that information available to support student choice was inadequate – insufficiently detailed about matters that actually concern students and poorly structured for meaningful comparisons between providers and courses, with disadvantaged students and mature learners particularly affected by lack of accessible support and guidance.

    It knew that the contractual relationship between students and providers remains fundamentally unequal, with ongoing cases of unclear or unfair terms that leave students uncertain about what they’re actually purchasing in terms of quality, contact time, support and costs, while terms systematically favoured providers.

    It also knew that its existing tools weren’t allowing intervention even when it saw evidence that regulatory objectives were being delivered, and questioned whether a model requiring individual students to challenge providers for breaches was realistic or desirable.

    So many things would help – recognition of the role of student advocacy, closer adjudication, better coordination between OfS and the OIA, banning NDAs for more than sexual misconduct are four that spring to mind, all of which should be underpinned by a proper theory of change that assumes that not all power over English HE is held in Westward House in Bristol.

    If students have concluded that complaining is futile, there are really three possible responses. One would be to figure that the promises being made raise expectations too high. But there are so many actors specifically dedicated to not talking down a particular university or the sector in general as to render “tell them reality” fairly futile.

    Another is to try to convince them they’re wrong – better communications about rights, clearer signposting of redress routes, more prominent information about successful complaints. You obviously can’t give that job to universities.

    The third would be to ask what would need to change for complaining to actually be worthwhile. That would require processes that are genuinely quick and accessible, institutional cultures where raising concerns is welcomed rather than seen as troublemaking, meaningful remedies when things go wrong, and external oversight bodies that can intervene quickly and effectively.

    But there’s no sign of any of that. A cynic might conclude that a regulator under pressure to help providers manage their finances might need to keep busy and look the other way while modules are slashed and facilities cut.

    Why this matters more than it might seem

    Over the years, people have asserted to me that students-as-consumers, or even the whole idea of student rights, is antithetical to the partnership between students and educators required to create learning and its outcomes.

    “It’s like going to the gym”, they’ll say. “You don’t get fit just by joining”. Sure. But if the toilets are out of order or the equipment is broken, you’re not a partner then. The odd one will try it on. But most of them are perfectly capable of keeping two analogies in their head at the same time.

    In reality, it’s not rights but resignation, when it becomes systematic, that corrodes the basis on which the student-university relationship is supposed to work. If students don’t believe they can hold institutions to account, then all the partnership talk in the world becomes hollow.

    National bodies can write ever more detailed conditions about complaint processes, information provision, and student engagement. Universities can publish ever more comprehensive policies about policies and redress mechanisms. None of it matters if students have concluded that actually using those mechanisms is futile.

    There’s something profoundly upsetting about a system where three-quarters of students believe promises haven’t been kept, but most conclude there’s no point complaining because nothing will change. It speaks to a deeper breakdown than just poor communications or inadequate complaints processes.

    It’s precisely because students aren’t just consumers purchasing a service that we should worry. They’re participants in an institution that’s supposed to be about more than transactions. Universities ask students to trust them with years of their lives, substantial amounts of money (whether paid upfront by international students or through future loan repayments by domestic students), and significant life decisions about career paths and personal development.

    In return, students are supposed to be able to trust that universities will deliver what they promise, listen when things go wrong, and be held accountable when they fail to meet their end of the deal.

    The parallels with broader social contract failures are hard to miss. Just as students don’t believe complaining will change anything at their university, many young people don’t believe political engagement will change anything in society more broadly. Just as students have concluded that formal institutional processes are unlikely to deliver meaningful redress, many citizens have concluded that formal democratic processes are unlikely to deliver meaningful change.

    The learned helplessness this research documents in higher education mirrors learned helplessness – which later turns to extremism – in civic life.

    I don’t think I’ve ever heard of any uni willing to reimburse or cover if they’ve done a poor job of teaching. That’s never come to me.

    They’re right.

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  • Student protection is needed in all higher-level learning

    Student protection is needed in all higher-level learning

    With the government’s white paper having a clear policy ambition and focus on higher technical (level 4 and 5) courses, and a pledge to simplify the regulatory framework for higher-level study, gaps in regulatory oversight are still exposing an increasing number of students to risk.

    The Office of the Independent Adjudicator has today published public interest case summaries, where we have named the two providers concerned, in order to highlight the impact of differing regulatory systems leaving gaps for individual students.

    The recent closure of Applied Business Academy (ABA), as detailed in my previous Wonkhe article, shows an ongoing vulnerability where students cannot seek an independent review of their awarding organisation’s actions. This is the case if they are studying for HE qualifications awarded by an Ofqual-regulated awarding organisations as these, unlike universities, are not required to be OIA members.

    While Ofqual regulates the quality and standards of qualifications, it does not oversee student protection, welfare or institutional accountability in the same way the OfS does for registered providers, even where the provider is only validating courses.

    In our experience this regulatory fragmentation leaves students vulnerable. All HE students should be afforded the same protection and recourse as well as the ability to complain about both their delivery and awarding organisation whoever their awarding body is.

    Highlighting the consequences

    In the case of ABA, when the Department for Education instructed the Student Loans Company to suspend tuition fee payments to ABA there were over 2,000 students enrolled on the Diploma in Education and Training (DET) awarded by City and Guilds or the Organisation for Tourism and Hospitality Management.  ABA also ran courses through partnerships with two universities which were not subject to any regulatory concern.

    Since ABA was registered with the OfS, all eligible students could access public student loan funding including those on the DET course. However, when ABA collapsed their route for complaint and level of redress and support was unclear and very different. The DET students lacked the institutional safety net of an OfS-regulated validator. Despite receiving positive feedback and assurance from ABA during their studies, students were told at the time of the closure that there was insufficient evidence to meet qualification requirements, leaving them with no qualification and a debt they would have to repay.

    By contrast, those on courses validated by or franchised from the University of Buckingham or Leeds Trinity University were offered a range of protections and mitigations including, various supported transfer options to localised provision with matched timetabling, transferring to the universities or identified alternative providers. They also benefitted from reimbursements for travel costs to alternative premises or were provided with free transport. Students could also access a record of achievement to support other transfer or exit, webinars and dedicated phone lines with individualised welfare support and guidance sessions. The OIA, to date, has received no complaints from students on these courses.

    Equal funding, unequal accountability?

    We have also today published a case summary about Brit College which was OfS-registered and only ran courses which were awarded by Ofqual-regulated awarding organisations, prior to its existing higher education courses being de-designated.

    Although it has not closed, it has stated on its website that where the OIA has awarded compensation or refunds, “Brit College is currently unable to meet these awards due to financial constraints” and has yet to pay our recommended compensation to any impacted student.

    The students we have received complaints from had completed all the work that had been set, and they had not been given any indication by the college during their studies that the work was not sufficient or was not at the required standard. Nine months after completing the course the college told students that they would need to undertake substantial further work. As Brit College remains open but has refused to pay compensation, it has been formally found in non-compliance with our recommendations.

    In both cases, since the awarding organisations are not within OIA membership we are unable to review any complaints from students about their acts and/or omissions in the time prior to de-designation, as we would if their courses were awarded by universities.

    When the system fails

    The fall out is not just administrative; it is deeply personal. Students are often shocked and distressed to be denied compensation, especially when we have found in their favour. They often feel confused about the lack of protection available to them and, having chosen to study at an OfS-registered provider, feel they have been misled.

    This is compounded when they hear about students at the same provider studying for different qualifications where expectations of the validators are student focused. The qualifications studied via Ofqual-regulated awarding organisations are often gateways to teaching or a technical profession. When a provider fails and there is no one to turn to, they not only lose their tuition fees and time spent studying, but also their career trajectory, and often they cannot afford to take out further loans to start again.

    In the words of one student impacted:

    I completed the DET course as required, maintaining 100% attendance, submitting all coursework and observations on time, and consistently communicating with ABA. In addition to the course fees, I spent money on travel to attend the course, further increasing the financial burden. Despite fulfilling all my responsibilities, I’ve been left without a qualification and have been unable to get a resolution for nearly two years…

    What makes this even more distressing is that I have already started repaying the loan to Student Finance from my personal income – for a course that did not result in a qualification. This feels incredibly unfair and adds to the emotional and financial pressure I am under. I am paying for something I did not receive through no fault of my own.

    Fixing the fault lines

    This is not an isolated incident – it’s a symptom of a sector under strain. With the government’s targets directly referring to higher technical qualifications, backed by the development of the Lifelong Learning Entitlement to give “equal access to student finance for higher level study,” it should now take action to ensure equal access to student protection.

    Without this, students on higher technical and other level 4/5 courses will continue to have less access to individual remedies and redress than their counterparts studying for an award from a university.

    We note that back in 2020 the DfE expected “all awarding bodies and providers which own an approved Higher Technical Qualification to join the [OIA] scheme” – yet five years on this expectation remains unmet. We have since worked with Ofqual who have confirmed that awarding organisations being in membership of the OIA Scheme is compatible with Ofqual regulation (this was also a recommendation in our recent joint report with SUMS on managing the impact of higher education provider closure).

    Without OIA membership, students unable to complain to the OIA about their awarding organisations will not have access to independent remedies and redress, unlike those studying for university-awarded qualifications.

    Most importantly, in our experience, this is not made clear to, or understood by, students when they embark on their higher education journey.

    We reiterate that this is a student protection gap that urgently needs resolving for students who deserve that same protection. All students – regardless of their awarding organisation – should have access to the same safeguards and redress. That means all awarding organisations in receipt of public money joining the OIA scheme and making student protection, and the obligation to put things right for students, a non-negotiable part of higher education policy.

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  • DfE sets out the detail on the free speech act

    DfE sets out the detail on the free speech act

    In some ways, there’s little that’s new in the Department for Education’s Command Paper on the future of the Higher Education (Freedom of Speech) Act 2023.

    Over 30 pages or so, it basically puts some meat on the bones of the two announcements made by Secretary of State Bridget Phillipson – the one from last Summer where the act’s implementation was paused, and the one from January which discussed the plan in outline to partially repeal.

    This isn’t the first Command Paper from DfE on the issue – back in 2021, then Secretary of State Gavin Williamson’s effort was a fairly heavily ideological compendium of Telegraph stories and Policy Exchange talking points – picking up everything from cancel culture to students being encouraged “to report others for legal speech”.

    This run at things tends to deftly avoid all of that. It’s about as technical as you can get, with pretty much all of the critique justifying the approach based on workability and burden. Even that “sources close to the Secretary State” quote from last Summer on the Act representing some sort of “hate speech charter” is missing in action here – with the only discussion on harassment surrounding the ban on non-disclosure agreements.

    That’s either savvy politics from a government keen to douse down culture war flames, or a hostage to fortune when OfS’ particular approach to the balancing act between free speech and EDI at some stage comes back to bite – with ministers caught in the middle.

    And we’re off

    We already knew that the government had decided to commence the duties on providers regarding freedom of speech and academic freedom, as set out in Section 1 of the Act. The regulations were made on 28 April 2025, the duties come into force on 1 August 2025, and we got some actual (if controversial) guidance from OfS on 19 June.

    These include requirements for providers to take reasonably practicable steps to secure freedom of speech within the law for staff, members, students, and visiting speakers, as well as protecting academic freedom for academic staff. The Command Paper is keen to point out that the expanded definition of academic freedom will be retained, protecting academic staff from suffering adverse employment consequences solely based on their opinions or ideas.

    Ditto Section 2 of the Act, which covers constituent institutions of providers. DfE says that its decision ensures that constituent institutions such as colleges, schools, or halls within universities (for example, the individual colleges at Oxford and Cambridge) are subject to the same obligations as their parent HE providers.

    It says that the clarification was particularly important to put beyond doubt that these constituent institutions cannot avoid the freedom of speech duties that apply to the main institution – although to the extent to which you see these things as a see-saw, that does mean that Oxbridge Colleges will each be able to maintain their own free speech code of practice, while it’s the central university that will hold a central responsibility for the harassment and sexual misconduct duty as of 1 August.

    Given that Oxbridge colleges tend to be fiercely guarded about their autonomy and independence, that harassment duty and features like its “single source of information” were going to be interesting enough – but given that OfS’ free speech guidance repeatedly mentions harassment considerations when making decisions on free speech, you can see how some astonishing complexity and internal conflict could be coming further down the track.

    It’s also worth noting in passing that while DfE seems keen to put Oxbridge colleges’ direct duties beyond doubt, there’s nothing in here on transnational education – which as we noted in the commentary on OfS’ guidance, is asserted to be outside of the scope of the Act without anything in the way of meaningful justification.

    The other thing in this section is DfE’s pride at extending the non-disclosure agreement ban OfS was already putting in place for harassment and sexual misconduct cases to bullying. It quotes campaigns like “Can’t buy my silence”, but of course doesn’t explain to students why silence can be bought over other types of complaint.

    Yes yous

    The original version of the Bill proposed regulating students’ unions directly – although notably, the SUs of those constituent colleges were to have been exempted on the basis that the college exercises sufficient control.

    Pretty much by accident, that did mean that an FE union whose College was on the register and in receipt of OfS funding was going to be expected to bear all of the complex legal duties and issue a Code of Practice – even if it was unincorporated and run entirely by FE (rather than HE) volunteers.

    So entirely sensibly, there’s confirmation that the government has decided to repeal sections 3 and 7 of the act in their entirety, which would have imposed the direct freedom of speech duties and given OfS regulatory powers over them.

    The workaround is the one that’s been in place since 1994 – regulating SUs through their provider. The rationale for repeal centres on concerns that SUs can lack the financial resources, regulatory capacity, and legal expertise to handle complex duties, that monetary penalties or damage awards could severely impact their ability to provide services and support to students, and the government recognised that SUs are already regulated as charities by the Charity Commission, which oversees their compliance with legal duties including furthering educational purposes through enabling discussion and debate.

    So instead of direct regulation, the government has decided to adopt our proposal from 2021 – the government will expect providers to take reasonably practicable steps to ensure their students’ unions follow codes of practice, which is what already happens over a whole range of issues. Some will see that as an attack on autonomy, others a charter for avoidance – sensible people will see this as the approach that will work.

    Or at least it should work, were it not for the fact that OfS seems to be requiring universities (and therefore by proxy their SUs) to adopt an approach to the balance between free speech and harm that is not legally compliant. More on that in our commentary on OfS’ guidance, suffice to say that SUs at the sharp end of some of the tensions may end up resolving that what OfS might have told them to do is not what they actually should do on a given issue.

    Complainants will be able to complain about the reasonably practicable steps thing – DfE civil servants may have forgotten that the Education Act 1994 also sets up some statutory complaints requirements on SUs themselves, which involve provider review. The other odd bit is that DfE’s amendments to the Act will require providers to set out in their Code of Practice how their students’ union will ensure that affiliation is not denied to any student society on the grounds of its lawful policy or objectives, or the lawful ideas or opinions of its members.

    That goes slightly further than the compliance already expected of SUs as charities over protected beliefs, and extends (very slightly) an existing provision in the Education Act 1994 that the procedure for allocating resources to groups or clubs should be fair and should be set down in writing and freely accessible to all students. It’ll cause conflict at the edges – students do expect to be able to vote on things, and votes can be problematic – but overall this all makes sense.

    Tort a lesson

    You might remember the controversy over the statutory tort – the thing that would have allowed staff, students, and external speakers to bring civil claims against HE providers, constituent institutions, or students’ unions for breaches of their freedom of speech duties.

    The government’s rationale for repealing that bit centres on concerns about its potentially harmful effects on the higher education sector – a chilling effect on freedom of speech that might make institutions more risk-averse about inviting challenging or controversial speakers due to fear of litigation. And so given judicial review, employment tribunals, the OIA complaints scheme for students, and the forthcoming enhanced OfS complaints scheme are all alternatives, plus the financial burden of potential legal costs, it’s gone.

    That all pretty much matches Lords speeches opposed to the Tort at the end of 2022 – this we might expect this to re-emerge as a flashpoint when all of this finds its “appropriate legislative vehicle”.

    This section also says that the government is also concerned that the threat of legal proceedings might lead institutions to prioritise protecting hateful or degrading speech over the interests of those who feel harassed or intimidated – an interesting idea given that both hateful and degrading speech can still be within the law, or at least OfS’ interpretation of it.

    Complaints chaos

    As expected, the Office for Students is going to be stripped of the ability to hear complaints from… students over academic freedom and freedom of speech.

    To be fair, the sensible rationale there is that the Office of the Independent Adjudicator (OIA) is a well-established route that is recognised and understood by students and providers – and that approach will prevent students being baffled about who to approach, or worse, arbitrary categories that had the potential to take a wide-ranging complaint and insist on it being sliced up.

    That won’t remove the potential problem of students on one end of the see-saw and staff on the other each making complaints about the same issue – or OfS and OIA potentially making different judgements. There’s also the prospect that OfS and OIA will handle things at a different pace, and while OfS was proposing to allow a complaint to roll in without exhausting internal procedures, OIA usually needs a Completion of Procedures letter.

    It’s all very well asking the OIA to look at OfS’ guidance, but presumably there’s some risk that the OIA will look at the way OfS is defining free speech within the law and have representations made to it that disagree. Wales would feel pretty aggrieved if OfS’ particular interpretation was imposed on it via OIA’s dual country coverage, and presumably it would be wild for the OIA to say one thing about an incident in Wales and another in England.

    It all feels like the two bodies are being asked to get in a room and talk – on that, DfE just points at Section 63 of HERA (OfS may co-operate with others where appropriate) and says you two should talk. It might strengthen it if needs be.

    DfE also says that it will ask OfS to consider and then set out in requirements or guidance what fit for purpose internal complaints processes for academic freedom look like, although you could just as easily ask the OIA to build something into its Good Practice Framework.

    The other aspect here is that the legislation will switch from OfS having a power rather than a duty to consider complaints under its scheme. DfE says that will enable it to prioritise, for example, the most serious complaints or complaints on issues affecting the whole sector.

    The expectation is that “OfS and Dr Ahmed” will be transparent, independent and neutral in how they prioritise consideration of those complaints – notwithstanding the position-taking evident in the guidance already, that presumably points to some sort of criteria for folk to fight about.

    Lurking in the background of all that is academic freedom – in its consultation on the complaints scheme, OfS pointed at the Higher Education and Research Act and said “the Act will require us to consider every complaint that is capable of being referred under the scheme. It does not preclude us from considering matters of academic judgement.”.

    The OIA of course can’t look at such matters – and with “duty” switched to “power”, we’re going to need OfS to take a view on whether it will do things for staff and speakers that the OIA won’t be able to do for students.

    Foreign funding

    The one policy area where an announcement was pending was section 9 of the legislation, related to OfS’ monitoring of overseas funding to providers with an eye to assessing the extent to which such funding presents risks to freedom of speech and academic freedom. This measure is not currently in force.

    When Bridget Phillipson updated Parliament on Labour’s plans in January, it was the one area where a decision was not announced:

    I will take more time to consider implementation of the overseas funding measures. I remain fully committed to tackling cases of interference by overseas Governments, and the wider measures in the Act will further strengthen our protections. However, I want to ensure that any new reporting requirements for providers add value without being overly burdensome. We continue to work at pace with the sector on the wider implementation of the Foreign Influence Registration Scheme. My officials are working across Government and with the sector to review our response, and I will confirm my final decision in due course.

    Now we get a decision of sorts – and that decision is to continue to keep this under review, and introduce “alternative mitigations to support HE providers to improve international due diligence.”

    For a long time under the last government, the response to any and all bugbears that commentators and politicians had with universities’ and students’ relationships with other countries – ranging from overreliance on international students from certain countries, to research collaborations in weapons technology, to transnational repression, to the activities of Confucius Institutes and Chinese student associations – was that this would all be sorted out through the twin approach of the free speech act and the Foreign Influence Registration Scheme (FIRS). Labour has instead taken the approach that the latter needs to be implemented first.

    FIRS will come into effect on 1 July – we reviewed its implications for the sector back in April – and the policy paper promises to assess what comes out of it. FIRS, we are told, will provide “greater visibility of foreign state influence in the UK,” and information disclosed will be shared with DfE and OfS where relevant, allowing for pattern recognition as well as the prevention of specific threats.

    The alternative – that is, additional – mitigations mentioned above include asking the Office for Students to “consider the value of an explicit regulatory expectation” around due diligence on international partnerships. There’s also work on possible codes of practice and best practice sharing.

    The caveat here is that as FIRS is implemented:

    …it may demonstrate that further reporting on financial or other international arrangements would be beneficial to improve the identification and mitigation of these risks. As a result, we will keep the overseas funding provisions in the act under review in the event that, during FIRS implementation, evidence indicates further transparency reporting is necessary.

    But it feels that the government has come down on the side of listening to the sector about avoiding burden and duplication and, as the paper says, “minimising diversion of resources away from teaching and research.”

    There’s an interesting table on pages 24 and 25 of the command paper, perhaps anticipating criticism over the wait-and-see approach. The table lists all the different measures (ATAS, export controls, harassment duties, financial monitoring, national security act powers) that are already in place to mitigate against “foreign interference”, even without implementing OfS’ new powers.

    (In this context it’s worth briefly noting that Monday’s industrial strategy announced that the government will consult on updating the definitions of the 17 areas of the economy subject to mandatory notification under the National Security and Investment Act, to ensure that they remain “targeted and proportionate”. This could – potentially – see a slight loosening of the areas of research collaboration where higher education institutions need to notify and get approval from the government.)

    Equality impacts

    Finally, there’s a very odd section at the end of the command paper that describes and comments on an Equality Impact Assessment that DfE has, for some mysterious reason, not actually published.

    One of the sections might give us a clue as to why:

    Expanding these duties may lead to more open expression of views which could have a negative impact on those who currently face elevated levels of lawful but offensive comments related to their protected characteristics. They could also potentially lead to increased unlawful harassment against groups with specific protected characteristics.

    It’s almost as if DfE doesn’t want to publish a document that makes the legislation Phillipson is progressing sound like a “Tory hate charter” after all.

    It all partly depends on how OfS plays its duty – again, see the article on the meaning of free speech within the law – but you’d also have to assume that the detail is pretty bleak, and/or offers up all of the remaining fine lines and rhetorical contradictions being dumped on universities to navigate. The tort might be gone, but all of that complexity very much remains.

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  • Here’s how institutions are faring in handling harassment and sexual misconduct complaints

    Here’s how institutions are faring in handling harassment and sexual misconduct complaints

    Evidence suggests that significant numbers of students experience or are affected by harassment and sexual misconduct each year. Yet student complaints to the Office of the Independent Adjudicator (OIA) about harassment and sexual misconduct have historically formed a very small proportion of our overall caseload.

    The number of complaints about harassment and sexual misconduct we have received has been rising slowly but steadily in recent months. This may in part be a result of greater visibility at providers about mechanisms to disclose, such as “report and support” tools. This is a positive step, but there is more to be done to raise students’ confidence in how their providers can respond to reports.

    Today we have published ten case summaries and a casework note on harassment and sexual misconduct, highlighting some key issues for providers to consider when addressing complaints. Although these examples focus on sexual misconduct, the broad principles of good practice can apply across other forms of harassment.

    Taking reports seriously

    Our recent casework shows that some providers are demonstrating, via the disciplinary action they take against students reported for harassment and sexual misconduct, how seriously they view breaches of their codes of conduct. We’ve seen providers taking swift action to investigate, make findings and apply penalties. In some cases, we have seen well-reasoned and documented decisions and clearly explained outcomes.

    However, we have upheld a high proportion of the complaints we have reviewed about harassment and sexual misconduct. We have identified procedural errors and unfairness that have significantly undermined the value of the process for reporting students, and the validity of findings made against reported students.

    Overall, providers seem to have more confidence in addressing the disciplinary aspect of these complaints. Disciplinary processes are usually well established and are supported by guidance and tools such as classification of the severity of any breaches of a code of conduct and accompanying tariffs of penalties.

    There is less certainty and consistency of approach across the sector in responding to the reporting student. There may be fine nuances between a disclosure, a report or a complaint about harassment and sexual misconduct, and the manner of response to each might be slightly different. Many providers intend to be led by the reporting student’s needs, which is an admirable principle – but not always effective if the student has not been clearly informed about the options available to them and the differences between these routes.

    Sharing an outcome

    In several cases, providers haven’t understood that informing a reporting student that a disciplinary process has taken place is not a complete outcome.

    Providers need to consider how they can support students and lessen the impact upon them of the harassment or sexual misconduct they have experienced. This is especially important when the report concerns the conduct of a member of staff. In our experience, providers have tended to be more transparent about incidents between two students than they have been when a member of staff is involved.

    While providers have particular responsibilities to their employees that may be different to the obligations they have towards students, the imbalance of power makes it even more important that students understand how their complaint has been investigated and what will happen next.

    Gathering and probing evidence

    We recognise that complaints about harassment and sexual misconduct are often complex, and may involve events that unfold over a period of time, multiple incidents or involve numerous individuals. There can be constraints because of concurrent police action, which may not result in a clear outcome for several months. Cases may involve claims and counter-complaints, or turn on the credibility of the parties on nuanced issues such as consent.

    Our experience suggests that in some cases, decision makers have not fully understood the importance of moving carefully through a process that genuinely gives all parties an opportunity to tell their own story and allows for gaps and inconsistencies to be explored. It is right that all parties in these processes must be treated with respect, with kindness, and with an awareness of the impact that re-visiting an experience of harassment or sexual misconduct may have.

    But panel members who must test evidence appear to feel constrained in asking questions. Trying to re-examine or gather additional evidence at a later date can place an undue burden on all parties and prevent individuals from moving forward.

    Consultation on a new section of the Good Practice Framework

    The increased focus on tackling harassment and sexual misconduct across the sector – including the new E6 OfS regulatory condition that applies to some of the providers in our membership – is to be welcomed. The emphasis on clear information that is easy to access, and on well-resourced training for both staff and students may go some way to addressing some issues we have seen in complaints.

    In 2025, we will consult on a new section of the Good Practice Framework addressing these complex issues. It will build on the learning we have identified from our rising volume of casework. Our intention will be to draw together in one place the principles that apply to complaints about harassment and misconduct.

    We look forward to engaging with the sector to benefit from the extensive expertise of hands-on practitioners, to make this as useful a resource as possible. If you’d like to feed in at an early stage, please get in touch with us at [email protected].

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