THE Law

Times Higher Education (the THE; wonder how that will be indexed) is a relaunched version of the Times Higher Education Supplement (which neither belongs to the Times nor is a supplement, giving accuracy of only 50%). It’s also a magazine rather than a tabloid now, and the website is no longer behind a pay wall.

The first issue was published last week, and by coincidence (or not?) there’s a nicely interconnected series of articles on students, higher education and the law. (The interconnection is all in my head and the context/comments are also all mine, so don’t blame The The if you think it’s silly). The (primarily England and Wales) Higher Education Act 2004 is the common link.

The Act infamously introduced the top-up fee system and reformed aspects of higher education funding. An ongoing issue that institutions and students have tried to deal with is the question of student expectations and the role of contract. This issue was raised by education officer Wes Streeting of the National Union of Students on a number of occasions at the start of the 2006/7 academic year (see for example this Guardian story from September 2006) and a lot of criticism was expressed of the piecemeal approach. In 2007, Universities UK (the association of universities) carried out a survey (PDF), which had some particularly interesting results, not least:

Members were specifically asked whether they considered that they had a de-facto contract in place. This question aimed to clarify the legal context in terms of the current debate which has largely been framed around the concept that the use of a student contract is a new development. Virtually all respondents considered that they had a de-facto contract in place, generally established at the point at which a student accepts a place at university. Confusion over the contractual relationship may arise from the number of documents which make up the de-facto contract. This issue was reflected in the survey results. A common response to the question about de-facto contracts was a description of the documents which formed the contract, for example the offer of a place, the student’s acceptance, issue of a joining pack, the student’s signature on the enrolment form, student access to University regulations and guidance material, re-enrolment, assessment etc. One institution commented that they were currently trying to identify what documents constituted the de-facto contract.

Last year, I reported on the apparent increase in complaints. That was interesting. But moving to 2008, we have the first of our stories from THE (I’ll stop calling it The The now, honest), reporting on a new (and seemingly popular) template for a ‘statement of terms’ (no longer a contract) developed by the Universities and Colleges Education Law Network (UCELNET). Tragically, I can’t get any info on the network as the website is members-only (and only HE institutions are members), but it does seem that the draft document is broader than the headline (which is, for the record, Fees ‘do not buy’ a guaranteed degree – a good point, but hardly the only one for a student contract statement of terms. I do wonder (but cannot confirm) how this contract statement of terms will be classified and enforced…

On that fees issue, though, it is reported in our second story that Coventry University has expelled 3% of it students and blocked 11% from accessing resources due to the non-payment of tuition fees. Perhaps a contract statement of terms will have something to say about that issue too – it does seem quite disturbing.

The final issue relates not just to these contractual issues but also to a further part of the Higher Education Act – the student complaints scheme. Part 2 (and associated Schedules) of the Act set up this new scheme and also excluded the jurisdiction of any university Visitor (if such jurisdiction existed) in relation to student complaints. The scheme is administered by the Office of the Independent Adjudicator for Higher Education and the adjudicator is Baroness Ruth Deech. So our final article is a report on a recent court decision that clarified that judicial review can be sought of OIAHE decisions. The decision, R (Siborurema) v OIA (which THE should really have linked to – why can’t print publications realise that a website is different to a piece of paper and that the occasional hyperlink wouldn’t kill them?) was handed down in December and has been published online [2007] EWCA Civ 1365 and summarised in the (actual) Times.

The adjudicator made what I see as quite a worrying assertion:

As to the amenability of OIA to judicial review, Baroness Deech in her statement expressed the firm belief that the efforts of OIA to serve students and HEI’s cheaply and efficiently would be hindered significantly if decisions made under the Scheme were to be subject to judicial review. OIA regarded the Scheme as a true alternative system to recourse the courts, without precluding such recourse. (Pill LJ, para 41)

The Court of Appeal does not accept this argument, and reasserts the supervisory role of judicial review, particularly in relation to a question raised in this case on whether the operation of the scheme was in accordance with the Act. This is quite important in the context of the way in which the office was set up (the Minister is allowed to recognise a body if it is acting in accordance with particular principles – very similar to the proposed method in the Defamation Bill here and in line with a prevailing ‘co-regulation’ trend). As it turns out, the applicant has a particularly poor case and the OIA is found to have acted in accordance with law.

Some other interesting nuggets from the opinions: Moore-Bick LJ says that “the Act therefore contemplates that the designated operator, currently the OIA, will be performing a public function, albeit not one that involves the determination of the legal rights and obligations of the parties involved in the complaint. As such it cannot be equated to a body established by one or more institutions to act as an arbitrator, mediator or conciliator in a purely private capacity” (para 69) and Richards LJ adds, in the context of the intensity of review, that “in this, as in other matters, little assistance is to be derived from reference to the former jurisdiction of the university visitor, which the statute abolished. The Scheme represents a new approach to the review of qualifying complaints and is not intended to replicate the old system.”

For some other thoughts on student complaints in higher education and the law, see Neville Harris’s detailed survey (which mentions the Siborurema case in its earlier stage) in Legal Studies 27(4) here), and a shorter summary by Liz Buckton here (Perspectives: Policy and Practice in Higher Education 12(1)).

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