Public interest cases

March 2013

These cases were published on the OIA website in March 2013.

Imperial College London

Imperial College London changed its procedures to allow a student to bring an appeal that did not fall within the grounds listed in the College’s procedures. While the appeal itself was unsuccessful, leading to the student’s complaint to OIA, the College’s flexibility in adapting its procedures created opportunities for other students in the future.

Background

S was a postgraduate student at Imperial College, London.

S failed the first submission of their thesis and the subsequent resubmission and submitted an appeal against their failure. S argued that their preparation for the resubmission had been disrupted by a computer problem.

S’s appeal did not fall within the grounds listed in the College’s procedures that were in force at the time. The procedures permitted appeals in cases where a candidate’s performance was affected by extenuating circumstances at an oral examination. However S had not been required to undergo an oral examination for the resubmission.

On receipt of S’s appeal, the College modified its appeal procedures to allow for an appeal to be submitted in cases where a candidate’s performance was affected during preparation of their thesis. This meant that S was able to appeal.

The College’s good practice not only advantaged S, but by modifying its procedures rather than simply making an exception for S, the College created opportunities for other students to submit valid grounds of appeal in the future.

If the College had not modified its procedures, S’s appeal would necessarily have been rejected – if S had then complained to the OIA we might have determined that S had been unfairly disadvantaged by the restricted grounds of appeal. In such a scenario we might have recommended that the College rehear S’s appeal, permitting an appeal to be made on the grounds that S’s performance had been affected by extenuating circumstances during preparation of his/her thesis. We might also have recommended that the College modify its procedures in the way that it did. The College’s good practice prevented any need for a complaint about this issue, which would have cost S, the College and the OIA time and resources to resolve.

The appeal was ultimately unsuccessful, and S complained to the OIA. S believed that the Appeal Committee which heard the appeal had exceeded its remit, and had expected too much in relation to the actions S should have taken to resolve S’s computer problem.

OIA Decision and reasons

The OIA found the complaint Not Justified. We considered that the evidence showed that the Appeal Committee had acted within its remit as set out in the College’s procedures.

The Appeal Committee had stated its expectation with respect to S’s computer problem that ‘a [postgraduate] student would demonstrate the ability and initiative to solve this problem swiftly, taking ownership of the issue and not letting it run for such a protracted length of time’. We noted that universities commonly expect students to develop the independence to take responsibility for their learning, and that this expectation is often heightened with respect to postgraduate students. In this case, we considered the College’s expectations of S to have been reasonable.

London South Bank University

The OIA upheld a case brought by a student of the University where it was found that:

1. The University’s procedures for dealing with extenuating circumstances claims were inconsistent.
2. The University was unable to demonstrate that it had taken full consideration of the student’s disability.

Background

The student (S) was studying for a full-time, undergraduate degree in law with London South Bank University (‘the University’). S failed several modules and the relevant Examination Board determined that he/she should repeat four modules (with attendance) in the following academic year; two of these were to be ‘uncapped’ first sits (due to accepted extenuating circumstances), while the remaining two were subject to a 40% cap. S appealed this decision but this appeal was not upheld by the University. S consequently brought a complaint to the OIA, citing the University’s inadequate consideration of S’s disclosure of dyslexia and its rejection of extenuating circumstances which had been accepted for the first two modules.

Extenuating circumstances

S had submitted an extenuating circumstances claim in respect of two failed modules which had been accepted, and as a result was awarded uncapped first resits. In the appeal, S had argued that the same circumstances had affected the other two modules, but S had failed to bring this to the University’s attention at the time.

OIA Decision and reasons

Under London South Bank University’s regulations in force at the time, there was no deadline for submitting extenuating circumstances claims; claims submitted after the Examination Board met should have been forwarded to its Chair for consideration. Conversely, there were no grounds for appeal on the basis of extenuating circumstances in the regulations.The issues S had raised regarding extenuating circumstances were therefore considered under the wrong procedure, according to the University’s published regulations.

In reviewing these issues, the OIA has regard not only to whether the written procedure was closely followed, but whether the procedural irregularities would have materially disadvantaged the student. If the irregularity has not disadvantaged the student or prejudiced consideration of their appeal, then the complaint may be dismissed.

In S’s case, the appeal panel had misunderstood S’s claim to be relating to the two modules for which extenuation had already been granted, rather than the two capped modules. Furthermore, the OIA recognises the importance of dealing with like claims consistently, particularly for assessing extenuating circumstances. Given that the University’s regulations did not prohibit late extenuating circumstances claims all such claims should have been considered in a consistent process by officers in the same or similar positions.

The OIA therefore found this part of S’s complaint to be Justified. In coming to this decision, the OIA considered the merits of S’s case in light of the University’s regulations to see if there was any manifest reason why S’s claim would be bound to fail upon reconsideration by the Chair of the Examination Board; had this been the case then we may have decided not to refer the matter back for reconsideration. However there was nothing to prevent the Chair from upholding S’s claim, if he or she accepted the extenuating circumstances. The OIA’s Recommendation was that the case be considered afresh by the University using the correct procedure set out in its regulations.

Disability adjustments

S also complained to the OIA regarding London South Bank University’s consideration of dyslexia. This was only diagnosed after the results in question had been published; the University determined that S was only entitled to reasonable adjustments from this point onwards and that there could be no retrospective effect on the marks awarded. S’s complaint to the OIA explained that he/ she was not seeking for marks to be uplifted retrospectively, but for the University to consider lifting the cap on the resits in light of the subsequent diagnosis.

The OIA supported the University’s position that there was no general obligation to retrospectively raise marks or apply reasonable adjustments. However once S disclosed a disability during the appeals process, the University did need to demonstrate that it had turned its mind to the nature and consequence of S’s disability, and consider whether S may be disadvantaged as a result and whether this should be mitigated. The questions of whether and how a student may have been disadvantaged in particular forms of assessment is a matter of professional judgment for an educational psychologist or medical professional; the Examination Board’s obligation is to consider whether its decision ought to be adjusted in light of that judgment, for example by adjusting its normal provision that resits should be offered.

In S’s case, there was no evidence that the University had considered whether S had been disadvantaged as a result of a disability and whether it could or should seek to prevent that disadvantage by reviewing the Examination Board’s decision. This aspect of the complaint was therefore also found to be justified.

Recommendations

The OIA recommended that S’s late extenuating circumstances claim and disability appeal be reconsidered by the appropriate persons within the University, as if for the first time and by persons with no prior knowledge of or involvement in S’s case. The University could apply any outcome provided for in its regulations to these issues.

Northumbria University

The University showed good practice in:

1. Setting clear deadlines for the submission of appeals and publicising these widely to students.
2. Making clear and upholding its expectations of students to familiarise themselves with deadlines.

Background

S was registered on a Masters degree programme at Northumbria University. The programme required students to obtain a certain number of credits to be awarded the degree or another award. Students must pass modules in order to accumulate credits. Students are permitted two attempts at passing each module.

In 2010, S was required to undertake a second attempt at a module examination. There was some delay in the examination being held, but it eventually took place in June 2010. S sat and failed the examination and therefore had insufficient credits to be awarded a Masters degree. At an Examination Board meeting in September 2010, the decision was taken that S should not be permitted a further attempt at the module and that S had sufficient credits to be awarded a Postgraduate Diploma.

Under the University’s Student Regulations, students are entitled to submit appeals against decisions of Examination Boards. Such appeals must normally be lodged within 20 working days of the meeting of the Examination Board subject to the appeal. Appeals received after this period are only accepted in exceptional circumstances. Students are also entitled to submit service complaints to the University within three months of the incident in question.

In October 2011 S wrote to the University expressing a grievance about the examination result. S said that the examination had been delayed owing to error on the University’s part and that S had been distracted by noise in the examination room. S said that the Examination Board’s decision was unfair as S had accrued a number of credits previously. S stated that he/she was aware of the University’s rules but felt that he/she nevertheless had compelling reasons to be granted a further attempt at the examination.

The University contacted S to explain its timeframes for the submission of appeals and complaints and invited S to explain why he/she had not submitted either an appeal or complaint within these timeframes. S replied by saying that nobody had drawn attention to the right to appeal until the summer of 2011, that S was unfamiliar with the UK’s higher education system and that S had been so upset by examination failure that he/she had not wished to discuss the results with anyone other than work and family friends.

The University’s decision

In February 2012 the University decided that S was considerably beyond the timeframe for raising either an appeal or complaint and therefore declined to consider the case. The University said that, whilst it appreciated that S was frustrated at nearly obtaining the required credits for a Masters degree, its regulations were clear and had been properly followed. It explained that its regulations were referred to during induction and that the Students’ Union also advertises the regulations. The University said that it did not consider ignorance of the rights afforded by the regulations to be a good and valid reason for submitting an appeal thirteen months after the Examination Board’s decision.

S submitted a Complaint Form to the OIA in May 2012. This repeated the points which S had made to the University and also said that, whilst S was aware of the University’s rules and timeframes, he/she wished for the context of the failed examination to be considered.

The OIA’s Decision and reasons

The OIA determined that S’s complaint was Not Justified.

The OIA considers it to be good practice for higher education institutions to set time limits for appeal and complaint procedures and to apply them consistently in the interests of fairness to all students. The OIA considered the University’s regulations to have been clear as to its relevant timeframes and S’s case was lodged substantially late. Although the OIA was unable to determine whether the regulations had been specifically referred to at S’s induction, it was apparent that the regulations were available from a variety of other sources, as indeed was advice and guidance. The OIA considered it reasonable for the University to expect its students to familiarise themselves with its regulations and to adhere to them when bringing an appeal or complaint. It was open to S to have sought guidance as to the regulations and available options at any point and, in particular, once the decision of the Examination Board had been issued – there was no evidence of S doing so. There was evidence that S had been aware of the regulations, even though he/she claimed not to have been in some correspondence.

The OIA decided that the University had acted reasonably in finding S’s case to have been brought out of time and without an exceptional reason for it to have been considered so long after the Examination Board’s decision.