office of the independent adjudicator (OIA) completely unfit for purpose? Watch

alma mater
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#81
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#81
Your questions are very good, and I think your idea of adding some more from me, but being sent from you is an excellent idea.

Here's two for now. If I can think of some more I'll let you know shortly.

(1) Related to your question 5.

In the OIA 'Our Strategic Plan' document it states the following:

'In 2017 we will collect feedback from complainants on their experience of dealing with the OIA at the initial point of contact, and at the end of the first stage of our process.'

Has this happened?
If so, will it be made publicly available?
Why not ask for student feedback at the most important stage, namely the complaint outcome stage?

(2) Is the OIA legally bound under the Higher Education Act 2004, as universities and students are, by your own Rules? In other words are Rules just a guide for the OIA, but must be followed to the letter by students and universities?
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alma mater
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#82
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(3) In the OIA 'Our Values' it states the following:

'We are clear, TRANSPARENT and ACCESSIBLE in all that we say and do.'

Lovely, but of course utter codswallop.

If the OIA is transparent and accessible as you state, could you please update your website to include the Minutes of the Board Meetings for March 2017, June 2017 and September 2017? If not, why not?
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LeoFernandes
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#83
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Alma Mater - I haven't personally read the first document you refer to, but assuming that's true, I think your first question, particularly the last part is a great question. Regarding your second question - to my understanding, the OIA are obliged to follow their own rules under this Act. If they are not, the student can proceed to judicial review against the OIA through procedural error. Regarding your third question, I'm not sure of the importance of these minutes, apart from finding out potential underlying reasons for Ms Clements leaving. Please contact me on [email protected] ... for efficiency, I would prefer to speak to you briefly on the phone regarding all of this.
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alma mater
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#84
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#84
In terms of question 1, go to the OIA website, click on About Us, click on Our Values, click on the underlined Our Strategic Plan, scroll down to page 3 and look at paragraph 3 of subheading Feedback and user experience.

In terms of question 2, I agree that on paper the OIA are obliged to follow their own rules as set out in the 2015 Rules.

General breaking of the Rules and therefore the law:

The OIA told my MP the following:

'The information on our website, whether written [Rules] or in podcast form, is intended as a GUIDE; it does not attempt to cover all eventualities, and we consider each case on its merits.'

The OIA are saying that their Rules are merely a GUIDE, and not something THEY have to follow to the legal letter.The rest of us do have to follow those Rules to the legal letter?

An example of just one OIA specific breaking of the Rules and therefore the law:

Rule 8.2 as stated in the 2015 Rules says a review may be reopened only under the two very specific and serious conditions:
submission of new evidence, or a substantive error has been identified. Yet the podcast on the OIA site clearly states that a review WILL be reopened if the OIA has merely OVERLOOKED something. Overlooking something is not necessarily the same as a substantive error. I might overlook the buy one get one free offer in my local shop, but that could never be described as a substantive error.

In terms of question 3, the importance of the Minutes lies at first in a question of when rather than why. Did Judy Clements give adequate notice? If not, why not? A person in a job of such seniority would normally give lengthy notice, unless there was something wrong - pushed or jumped?

I will email you later this evening or during the day tomorrow.
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LeoFernandes
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#85
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Thanks a lot, I will read the document you refer to when I get some spare time. Question 3 is also a good point. Ideally, I could provide the letter signed by Ms Clements in September to your MP as evidence to strengthen this question to them regarding the potential lack of notice given by Ms Clements, and what this seems to suggest. No worries if you were not to agree to this of course.

Regarding question 2, I think their use of the word 'guide' was a poor choice of words on their part. AC v OIA comes to mind where, to my recollection, the Judge ruled against the OIA for misinterpreting their own rules. Furthermore, I'm not convinced with your example. I have read rule 8.2 and questioned them about this. If a student wants to proceed to judicial review against the OIA, apart from identifying any procedural errors made, two effective methods in my view would be to identify in the OIA's complaint outcome: a) material errors of fact made and/or b) relevant matters the OIA have not taken into account. Rule 8.2 and their podcast seem to prevent a) and b) respectively. Although I think the OIA are simply trying to prevent further successful judicial review claims against them, I don't think this example can be provided as evidence regarding an appearance of bias. I'm of course open to hear your side further about this in case I've misunderstood.
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alma mater
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#86
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It's not necessarily about proving bias. The advice on the podcast about Rule 8.2 is at clear variance to Rule 8.2. Rule 8.2 does not mention overlooking information. This is important in legal terms and in terms of the OIA promise that 'we are CLEAR in all that we say and do.' It is not clear to describe the Rules as just a guide, when they are not just a guide. What the OIA are saying is that I have to follow the Rules to the letter, you have to follow the Rules to the letter, but for them the Rules are a mere guide to their capricious behaviour. They are playing a very dangerous game indeed.
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LeoFernandes
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#87
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It's about proving the appearance of bias, at least with me. Proving bias in a court of law seems near impossible.

The OIA losing AC v OIA (this judgement is on their website) to me shows that OIA Rules are more than merely a guide. In this judgement, the OIA to my recollection lost after misinterpreting their own written rules. The written rules are what judges seem to follow and therefore are what I follow.

I have responded to your email, just in case this has gone to junk.
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alma mater
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#88
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I completely agree that the written Rules are much more than merely a guide; they are the Bible of the OIA process, not just a trivial guide. That is why what the OIA have said to me in writing (provable) is so important.

I also agree with you about the near impossibility of proving bias in a court of law. It's not what you know to be true, but what you can prove to be true. Going after the OIA in terms of bias is a very difficult challenge indeed.
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alma mater
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#89
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Leo

Thanks for sending me this important information. Your case is, as I don't need to tell you, complex. Feel free to call me tonight after 7, but I've obviously not had chance to go through your paragraphs relating to alleged bias in detail. I will look closely at this information later tonight. If you want to call me tomorrow evening after 7 instead that would be fine by me.
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LeoFernandes
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#90
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Sure. I will call you tomorrow evening then after you've had some time to digest the relevant information. Feel free to of course read the rest of the document to assess the strength of my case for yourself. I of course won't take any offence if you think we can't assist each other.
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alma mater
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#91
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I've had a chance to look through the documents you have sent me. Firstly, it's clear you've had a very tough time at your former university and you have my sympathy for that, but you also have my respect for your tenacity and your determination to continue your studies at a different location.
With respect to your three grounds of appeal, I can't really make much comment on your grounds 2 and 3 at the moment. Your ground 1 is that the OIA are biased towards universities. You are totally right, and I couldn't agree with you more. BUT, unfortunately the burden of proof is on you to prove it. The 2009 OIA student satisfaction survey also makes it clear that the majority of students believe that the OIA is biased towards universities. The OIA themselves are obviously never going to admit this, and neither are universities. Sadly, you will need more than the 2009 survey to convince a judge in a judicial review that this proves bias. To my knowledge no one has ever succeeded against the OIA with the ground of bias, that is the OIA being biased against a student in favour of the university.
To stand a chance of winning on the issue of bias you have to prove, beyond all rebuttal, and not just indicate, bias in YOUR case. You have mentioned some possible bias issues in your case, which may be your strongest card to play. I'll look again at these in the morning.
If you do proceed to apply for judicial review you need to be your own devil's advocate: think how a highly sceptical judge, say Judge Mitchell, might think. You have to be able to fully understand how she will look for any and every weakness or flaw in your argument. Can you be ABSOLUTELY certain that your evidence will stand up to the most brutal scrutiny? If you have even the slightest doubt, you will probably lose. This all sounds rather harsh, but I want you to win and not get hurt any further. You know that if the OIA require a high burden of proof, that burden of proof will be even higher in judicial review.
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LeoFernandes
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#92
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To my understanding, proving the appearance of bias is very different to proving bias. I am not attempting to prove the latter whatsoever. A similar stance has tried and failed in Budd v OIA and Sandher v OIA. I have read these judgements, however I cannot see how paragraph 9 and further correspondence about Ms Clements, on a background of paragraphs 5-8, can be justified by a judge or by the OIA to not show the appearance of bias. Thank you for your comments, I prefer people being harsh.
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alma mater
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#93
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#93
That would be fantastic if you get a solicitor to take on the case pro bono. You will know that legal aid/legal help may be of less value in terms of progressing beyond the application stage. Anyway, I think we are somewhat jumping the gun as the OIA has not yet come back to you with its final decision. You are, however, quite right to start planning for all eventualities.
If you still want to phone me at this stage, then please do. Alternatively you could wait until you receive your final decision. I am keeping my fingers crossed that the OIA do finally see sense and offer you a good complaint outcome.
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alma mater
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#94
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The European Directive on Alternative Dispute Resolution (EU ADR) makes interesting reading. The OIA are legally bound by this legislation.

Article 7

Transparency

1. 'Member states shall ensure that ADR entities [including the OIA] make publicly available on their websites..... clear and easily understandable information on:

(g) the procedural rules.'

The OIA have informed me that their Rules are currently 'quite complex', and as a result they say they 'are in the process of revising the Rules to make them much simpler.' Those are the words the OIA use. How does this fit with the legislation above? I believe the current OIA Rules, by the OIA's very admittance, clearly breaches EU legislation. I will be contacting both the UK Secretary of State for Education and the EU Commission about this matter in the coming weeks.
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alma mater
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#95
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If you look on the OIA website under 'About us', it tells us that 'the OIA is the ADR Entity for Higher Education, APPOINTED by the Chartered Trading Standards Institute (CTSI) on 7 July 2015.'

I phoned the CTSI today to ask them more about this appointment. Unfortunately, the shutters went down faster than a pensioner on a ice rink. They said they knew 'nuffing' and tried to fob me off by saying I should get in touch with Offsted instead. The CTSI when pushed promised me that someone would get back to me on this issue. I told them if they didn't I would surely get back in touch with them. Offsted then informed me that they have nothing to do with OIA (sensible people). So back to the CTSI I go tomorrow. What are they hiding? Let's find out.
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LeoFernandes
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#96
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Article 7, 1 (c) ( http://eur-lex.europa.eu/LexUriServ/... />0079:EN:PDF ) - 'Member States shall ensure that ADR entities make publicly available on their websites, on a durable medium upon request...clear and easily understandable information on... the natural persons in charge... and the length of their mandate...' wonder if this was ever provided in relation to Ms Judy Clements?
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alma mater
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#97
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And what about the interim Ms Mitchell? She is in charge. What is the length of her mandate? The length of her mandate is like the length of Pinocchio's nose - and it grows for same reason.
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alma mater
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#98
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OIA website - About us - EU ADR:

'The Independent Adjudicator and Chief Executive is appointed under the NOLAN RULES of fair and open competition on a five year basis, renewable for three years.'

The seven Nolan Rules (principles of public office):

Selflessness.
Integrity
Objectivity
Accountability
Openness
Honesty
Leadership

See the Nolan Rules on the GOV.UK website.

How many of these qualities/rules were displayed by Judy Clements, or are now being displayed by Felicity Mitchell?

So, we have now established that the OIA are breaching the Higher Education Act 2004, they are breaching the EU Commission Directive on ADR, and they are breaching the Nolan Rules of probity, transparency and accountability in public office. The net is closing in on the OIA.
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alma mater
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#99
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The OIA have now informed me that they are in the process of preparing draft Rules to replace the 2015 Rules and they expect to go to public consultation on these draft Rules in about 2 months time.
Firstly, let's see if they stick to this time-frame, and secondly and most importantly how different the draft Rules will be from the 2015 Rules. The OIA are now damned if they do and damned if they don't. If they change the Rules significantly to admit that they were not clear and therefore misleading, how does this affect all students that have potentially been affected by this serious lack of clarity and therefore fairness? If they don't change the Rules significantly to correct this lack of clarity and misleading information then they will be ignoring UK and EU legislation and the Nolan Rules.
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LeoFernandes
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#100
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Finalising their rules will probably take a while. A request for the specific rules they intend on re-wording could obtain this information faster.
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