Educational oversight is now a standard part of the framework for both higher education institutions (HEI) and further education institutions (FEI), with a satisfactory inspection report from one of the approved regulators being a condition of holding both a Tier 4 Highly Trusted Sponsor (HTS) licence, as well as 'significant for specific course designation' which enables institutions to access student loan company funding.
However, recent press reports show that inspections can be incorrect. Where the inspection leads to an unreasonable outcome, challenges are increasingly common, given the implications of a poor review.
What can an institution do when errors do occur, and how flexible are the processes for complaints or appeals?
Generally, if an inspection provides that the institution does not meet the UK expectations, an HEI or FEI will fail a review. However, if the HEI or FEI disagree they can appeal or lodge a complaint. Under the QAA rules appeals can be lodged on the grounds of:
- Procedure - that the review team failed to carry out agreed procedures or exceeded its powers in a way that the legitimacy of the decisions reached are called into question. If an HEI or FEI wish to appeal on procedure, it is therefore crucial to consider what procedures were in place, whether they were clear, and in particular whether the published procedures were actually followed. Any departure from those procedures can give grounds to complain.
- Perversity - that the review team's conclusions are unreasonable or disproportionate in light of the available evidence. This may be because irrelevant matters were taken into account or relevant matters were not taken into account. In order to lodge an appeal on this ground it is important to understand how the review team considered evidence, as well as the conclusions which they drew from that evidence. If anything looks suspicious further questions should be asked.
- New material - there is material which was not in existence at the time the review team made its decision which, had it been made available before the review had been completed, would have influenced the judgements of the team and in relation to which there is a good reason for not having been provided earlier.
Compared with many administrative laws, perversity goes beyond what would normally be understood, and includes not only unreasonableness (conclusions for which there is no evidence) but also disproportionality (conclusions for which there might be evidence but which are unduly harsh in all the circumstances).
In addition to appeals, an HEI or FEI can also raise a complaint made about work or conduct if the audit review is not conducted in accordance with the published method.
Despite the possibility of appeal, one difficulty with challenging the review on the part of QAA or a similar inspectorate is that the legal challenge is by way of an appeal to the same body, or alternatively, by way of a judicial review. Given judicial review claims are extremely limited (and becoming more so) a court will only interfere with the public body's reasoning if there has been irrationality, a failure to take relevant material into account, or a serious procedural failing. Judicial reviews of expert bodies who have regulatory responsibility such as the QAA are rare. However, appealing to the QAA may be perceived as ill-fated when it is the QAA who are effectively judge and jury on their own process.
This notwithstanding, recent cases suggest that the QAA may now be taking account of the fact that there can be differences of opinion over potentially the same material, and appear willing to overturn their own decisions on appeal, particularly if the findings are in any way unclear about what material was considered, or if there is any indication that different members of the review panel may have formed different opinions on the evidence presented. Equally, the fact that there are different procedures which can be applied to the same institutions could give grounds for a successful appeal if it is at least possible that different methodologies have led to inconsistent conclusions on the same facts. The QAA often conducts education oversight for alternative providers, but where it uses differential methodologies for different kinds of review, the results as to whether a course meets UK expectations are occasionally inconsistent, and again, this can lead to a successful challenge.
This may be why the QAA is now developing a new methodology for tighter education review. Hopefully the new methodology of higher education review, which will be in force from 2014, will be a single risk-based methodology, regardless of all legal status, and will apply to all providers. If it works, the educational oversight review which has been a process designed to improve provision of education in the higher and further education sector, will continue and add benefit to both HEI's and FEI's, as well as provide the ‘kite mark’ necessary for both HTS licensing and BIS course designation. When it works educational oversight is designed to improve processes and improve quality. However, if the higher education review becomes, or is used as, a pass or fail methodology then taking part in the process at all may have unintentional but significant business and legal implications. This is because a pass or fail methodology will in our view inevitably lead to legal threats to failing institutions and these threats lead to greater prospects for legal challenge. In turn this will create a greater desire to push education providers to take legal advice to bring appeals and/or complaints about process adopted. Therefore, if HEI's and FEI's undergo a review, it is vital to ensure at the outset that:
- the process followed is appropriate for their kind of institution;
- the tests used are published; and
- the tests are applied fairly and openly.
If they do not, given there is a significant business risk in failing to maintain HTS and BIS accreditation, the incentive for undertaking an educational oversight review may be reduced and/or become a ground of increased legal action against the regulators.