The theory of eternal recurrence and the OIA’s Annual Report 2019

The theory of eternal recurrence and the OIA’s Annual Report 2019

Reading the OIA’s recently published annual report for 2019 reminded me of my days as a philosophy student exploring the theory of eternal recurrence - that theory proposes a universe in which all existence and energy have been recurring and will continue to recur in a self-similar form an infinite number of times across infinite time and space. 

My wistfulness was induced by the cases studies the OIA sought to highlight, which indicate that basic, but serious, errors in dealing with students continue to be made.  Anyone who deals with student complaints knows only too well that they are incredibly time-consuming, particularly if referred to the OIA.   By highlighting the recurring themes, perhaps we can subvert the haunting sense of predeterminism that the OIA’s case studies create.

Unfair procedures 

The right of the student to know the case against them is one of the axioms of fairness.  While the right must be discharged in any disciplinary decision-making process, it is particularly important in fitness-to-practise (FTP) proceedings where an adverse finding could deprive a student of their right to practise their chosen profession, itself a right recognised under Article 8 of the European Convention on Human Rights.

In one case adduced by the OIA, it concluded that it was reasonable for a provider to suspend a student’s placement while concerns were being investigated.  There was however no proper FTP process by which to investigate those concerns. No advance notice was provided to the student regarding the case against them, they were not afforded a reasonable opportunity to respond and there was no right of appeal.  In addition, the provider did not maintain a proper record of meetings with the student nor of the reasons for its decisions.

Another case cited involved a nursing student, who was the subject of FTP proceedings as a result of concerns raised by the placement provider, where14 different parts of the NMC Code were referred to, but no specific details of how and when the student had breached them were provided. Furthermore, the provider prevented the student from contacting potential witnesses the student had identified, but had not itself sought to contact those witnesses before the hearing took place, clearly at variance with duty to conduct an impartial investigation. The FTP panel included a member of the placement provider’s staff, giving rise to an appearance of bias, and no reasons were provided to explain why termination of the student’s registration was an appropriate sanction or why a lesser sanction would not have been appropriate.

Sexual harassment and misconduct

Unsurprisingly, there has been an increase in OIA complaints relating to sexual misconduct, though the actual numbers remain relatively low.  The partly-justified case adduced by the OIA relates to an allegation of serious sexual assault which was investigated by the police, during which the responding student was suspended from his studies.  The decision to suspend was made notwithstanding the fact that:

• the reporting and responding students did not study at the same campus;
• the responding student’s bail conditions did not impose any conditions on his movement;
• the responding student needed to be on campus only one day per week; and
• he agreed to any restrictions on his movement that the provider would seek to impose.

Furthermore, the suspension continued when the reporting student decided to interrupt their studies for the remainder of the academic year. The OIA concluded that the provider should have reconsidered the suspension, taking into consideration all of those factors.

A failure to take into account relevant facts/considerations when making decisions is a classic ground of judicial review and this case provides a good illustration of a flawed decision-making process.

Students with a disability

The Equality Act 2010, which is now ten years old, expressly provides that there is no discrimination if a student with a disability is treated more favourably than a student who does not have that disability. It is surprising therefore, that students with disabilities are being denied otherwise reasonable adjustments on the ground of unfairness to others, warranting complaints to the OIA, as a case study reveals.  It also resonates with cases on which we are asked to advise.

Another case relates to a student with autism and impaired motor and language skills, for whom the standard 25% additional time in examinations was not sufficient. The provider rejected the student’s complaint and did not consider whether the student continued to be at a disadvantage and hence whether any further steps were necessary.

A third case cited continues a familiar theme of providers failing to comply with their own procedures and failing to apply their mind to relevant evidence when making a decision. The case concerned a student with mental ill-health and a low attendance rate, whose appeal was heard by a single individual, rather than by a panel as provided under the provider’s relevant procedure, There was no record of the decision-maker taking into account the medical evidence provided. The OIA recommended a fresh appeal.

All three disability-related complaints included in the case summaries were deemed fully justified. Some of these issues are highlighted in one of our previous blogs – reflections on disability.

Consumer protection

Informed choice is a hallowed principle enshrined in consumer protection law.  Students rely on the material information provided to them in prospectuses and on websites to inform their choice of course and institution, often so they can maximise their comparative advantage or conversely to avoid their comparative disadvantage. Consider the poor student with a low aptitude for maths, who enrolled on a Masters in a business-related course, only to discover that several modules contained challenging mathematical content. The information provided did not inform potential applicants that the course required A-level maths or a degree in a mathematical subject. The student’s complaint was deemed fully justified.

What are the lessons to learn from last year?

Fairness

Ensure your disciplinary procedures are fair, not only in the drafting, but also in the implementation, and comply with them.  They should provide for:

• an impartial investigation;
• ample opportunity for the student to know the case against them and to defend themselves. That should in practice include properly-drafted charges briefly setting out the alleged facts in chronological order, with a cross-reference to the specific parts of the relevant code that is alleged to have been breached;
• an impartial decision-maker i.e. ensure not only the absence of bias but also of the appearance of bias;
• reasoned decisions; and
• records to show that all relevant facts were taken into account in making decisions e.g. suspension, guilt/innocence, penalty.

In relevant misconduct cases, particularly alleged sexual misconduct, both reporting and responding students should be kept informed of the progress of the process and informed of the outcome.

Disability

Notwithstanding standard adjustments for classes of disability, individual circumstances should be taken into account that may warrant deviating from those standard arrangements.

You need to demonstrate that all medical evidence was considered when making decisions regarding adjustments.

Consumer protection

Ensure that you inform applicants’ choices and ensure material information contains a clear indication of the entry requirements for each course.

Contact us
For further information please contact Geraldine Swanton or another member of the education team.

For legal support in relation to the coronavirus or any other matter, get in touch with your team today.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.