Redress must be at the heart of future HE regulation

Originally published on wonkhe

Are we still going on about that Green Paper? For me it’s like an overcooked sequel to 2011’s White Paper (which my politics text books say is the wrong way round), and in truth makes most of the same mistakes.

It confuses students with applicants when talking about power, it proposes regulation at the institutional level that will mask failure buried in pockets of large providers, it has a bunch of wispy weak protections for students in new entrants, and imagines that a bargain basement election slogan framework for teaching, all ‘if there’s a REF there should be a TEF’, can somehow persuade Russell Group researchers to update their ancient acetates. Cue 18 months of classic HE sector watering down by the usual unholy alliance of anyone in HE that doesn’t like being told what to do.

It’s the Office for Students that’s perhaps most interesting of the Government’s proposals. One of the more amusing episodes of the period following the publication of 2011’s Students at the Heart of the System was watching senior HEFCE officials attempt uncomfortably to contort themselves into the ‘student champion’ role the document envisaged for it. It was the HE sector equivalent of your dad dancing to songs from the hit parade at a wedding.

The mission of the tortuous student interest working group I attended morphed from being “consumer champion” into “student interest” and then into simply “lets give NUS some money for partnership projects”, finally disappearing in to David Willetts’ regulatory partnership project – a working group with sub groups whose whole purpose seemed to be to keep every HE big name busy in the absence of a slot for, or desire for, actual legislation.

So whilst we should be cautious about believing that HEFCE will really be abolished and replaced by a regulator “designed to promote the student interest”…”through a student lens”, the sentiment is there – that HEFCE and its leadership were so obviously dogged by provider capture that it needed a new focus.

Of course to do so with any credibility it will need to be governed in a different way, ideally giving power to some actual learners to replace the vice chancellors that currently pack its board and committees. Yet predictably, the Green Paper is curiously silent on who will run the new body, opening up the dispiriting prospect that students will collectively depend on the benign benevolence of the ‘great and the good’ of the HE sector to deliver them a fair deal.

Perhaps the real problem is that all the things that students might want from an Office for Students are set to be handled by someone else. It has taken Which? and the Competition and Markets Authority to sort out mis-selling in the sector, it’s largely the UKBA that’s dealt with poor private HE, and if we’re looking for a proper student champion, we should look at someone who’s about to disappear.

Rob Behrens, outgoing HE Independent Adjudicator and Chief Executive of its office is a remarkable character that has run a remarkable regulator, carefully and painstakingly achieving deep and wide reform to an outdated and unfair complaints culture – all with a clear sense of purpose, a commitment to student engagement and their unions, and a polite humility about these achievements and their shared nature that many VCs should have a close listen to.

He’ll be pleased that the OIA survives unscathed from the tiny campfire of the HE quangos. Over the past decade, his OIA has managed to speed up complaints, drive transparency and expose sharp practice amongst institutions that ought to know better. But it’s not a finished job. And as it takes on a long tail of smaller, diverse and often private providers under its wing, I’m worried that real problems that remain will go unfixed by the Office for Students as Rob moves on to pastures new.

Take marking. I’ve long argued that there’s an element of HE that’s not teaching or support services or facilities that students care about a lot but receives little attention: assessment. Part of the service they pay for is to be properly and professionally graded, sorted and judged, but there’s a system that the sector scandalously uses to justify these judgments and block appeals. The get out of jail free card of “academic judgment” which Rob Behrens subtly highlights as an excuse that might create public trust issues in coming years. A judgement that’s quality assured via the UK HE external examiner system.

Attached to HEFCE’s summer review of quality was a relatively unheralded piece of work carried out by the HEA for HEFCE on external examining, and I can’t help but think that it represents a huge scandal, despite being barely noticed by the press or campaign groups. “Empirical research provides clear evidence of the inconsistency and unreliability of higher education assessors”, says one sentence. “Academics may have little knowledge of the difficulties and complexities of reliable marking”, says another. “They may lack experience of providers across the sector”, and “receive limited support for the task from their own institutions”. Over one in ten had experienced pressure ‘not to rock the boat’ and 15% lacked confidence in the system’s ability to “meaningfully compare academic standards across programmes”.

No wonder attention is never drawn to it. After all, the one thing worse than eating sausages is knowing what’s in them. In reality marking is expected to be done in the middle of the night by increasingly stressed academics, and if it’s not been palmed off on PGR students, it’s probably done badly and hurriedly against a deadline set by a pro vice chancellor that wants to climb the table on Assessment and Feedback in the NSS to please his Governing Body.

And yet the system that assures it, designed to prop up that moment when the sector says no to an academic appeal or to justify the career-limiting decision to award a lower second, is basically an opaque farce with many of its implementers not knowing the role, never getting training and doing it with barely any reference to subject standards or benchmarks. All of which made the HEFCE quality proposals’ watered down mild nudge towards a register of external examiners, and its tepid suggestion of more internal “role recognition” in institutions, so disappointing.

The Green Paper’s silence on the issue is just as depressing.

But it’s not just academic judgement where the Student Champion needs to nudge change. Buried in the recent consumer rights act is a slice of as yet untested legislation that not only positions education as a consumer good, but guarantees those let down by a breach of an educational contract the right to both “refund” and “repeat performance”. Currently students that are let down by poor provision, or not getting what they were promised, often take the first offer they get in the name of early resolution, not realising that just submitting an appeal normally triples the offer.

The OIA itself then has remedies and redress guidelines (that students would find it hard to come across even if their institution was ticking the boxes in the best practice framework) that usually increase the compensation again if a student is tough enough to get as far as the ombudsman. But what if the courts treat cases like they would treat other consumer scandals, taking into full account disappointment, incidental costs like accommodation fees and opportunity costs?

It’s only a matter of time before we see a real case. And in that event the OIA and local institutions may well have to ramp up compensation levels as a result. Of course the Green Paper’s focus is on the CMA and consumer choice, but a focus on redress is what would make the Office for Students a real regulator in the student interest.

But if like me you’re interested in making the powerless a little more powerful, perhaps what’s really needed is an independent ombudsperson not just for the country, but within each institution, networked by the OIA. It seems to me to be extraordinary that universities of the size and scale that exist in the UK are not required to have genuinely independent actors to handle complaints within their walls, and that genuinely independent adjudication and resolution only kicks in after a student has been subjected to the lengthy legalistic defensiveness and corporate manipulation that emanates from any organisation that has messed something up.

The OIA almost demanded it a few years back, only backing off after institutions revolted and students’ unions mistakenly worried about their own position, but I’m hoping new adjudicator Judy Clements puts it back on the table soon. Students affected by the high volatility in the forced HE market that’s coming via the Green Paper are going to need it.

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