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