SETTLEMENT IN THE OIA COMPLAINTS PROCESS

Considering whether informal resolution is possible is a normal part of our process. We may consider settlement from the point at which we receive the student’s OIA Complaint Form.

Settlement may be appropriate where:

• Part of the complaint has already been upheld and the student is seeking an outcome similar to what the provider has offered.
• The information available to us suggests there may have been a clear error in the provider’s decision-making or handling of the case.
• A practical resolution is available without the need for a full review.
• An early outcome could prevent delay or allow the student to return to their studies.

Our decision is based on the circumstances of the complaint and the realistic prospects of agreement. It is not based on sympathy for a student’s personal circumstances.

We will also consider:

• The impact of delay. We will avoid prolonging settlement discussions where delay could harm the student or reduce the effectiveness of a remedy.
• The prospects of agreement. Settlement may not be appropriate where the relationship has broken down significantly or the student is seeking an outcome that the provider could not reasonably offer.
• The stage of our review. An opportunity may arise later in the process. We will consider whether pausing the review is proportionate and likely to lead to an agreed outcome.
• Wider concerns. Where a complaint raises issues that may affect other students, it may be more appropriate to issue a Complaint Outcome and Recommendations. This allows us to require and monitor wider changes.

If we identify a possible basis for settlement, the case-handler will usually contact the provider’s Point of Contact first.

This initial discussion allows us to establish whether there is a realistic basis for an offer before raising it with the student. It also helps us maintain our independent and impartial role.

A provider is not required to make an offer merely because we have raised the possibility of settlement. If the provider does not consider settlement appropriate, it should explain why and provide any further information it wants us to consider. We will normally continue our review.

During discussions, we may give the provider and student an indication of our initial view. This may include whether we currently consider that a full review is likely to result in a Justified or Partly Justified decision.

An initial view:

• Is based on the information available at that time.
• Is not a formal decision.
• May change if we receive further relevant information.

Providers should tell us promptly if they disagree with an initial view or hold information that could affect it.

Yes. A provider can propose settlement at any stage. In some cases, this would be a practical way to help resolve the issue.

For example, a provider may identify a procedural error while preparing information for us or conclude that a different remedy would resolve the complaint.

The provider should contact the case-handler as soon as it identifies a possible offer. It should send the proposed offer to us before sending it to the student. This allows us to check that the terms are clear and then correspond directly with the student about whether they wish to accept it.

No. A provider may make an offer as a pragmatic way to resolve the complaint without accepting fault.

The provider should make the basis of the offer clear. We may treat an offer intended simply to bring a complaint to an end differently from an offer intended to remedy an identified error or failure.

An offer to settle does not, by itself, mean that the provider accepts that the student’s complaint has merit.

A provider might offer to:

• Hear an appeal, disciplinary case or fitness to practise case again.
• Reinstate the student.
• Provide another assessment attempt.
• Remove an academic misconduct penalty.
• Provide additional access to facilities or alternative learning opportunities,
  refund fees or costs. 
• Make a payment for distress, inconvenience or financial loss
• Apologise for something a student has experienced

These examples are not exhaustive. We welcome practical solutions that address the substance of the student’s concerns.

A provider may also take separate action to address wider practice or process issues identified during settlement discussions. These actions do not need to depend on the student accepting the individual offer.

Our guidance on putting things right and the settlement examples in our Annual Report and case summaries may help providers develop an appropriate offer.

The provider should explain:

• What it is offering. 
• Why it considers the offer appropriate.
• Whether the offer is intended to remedy an identified issue or provide a pragmatic resolution.
• Whether the offer is in full and final settlement.
• Any conditions or deadlines.
• How and when the offer will be implemented

A full explanation helps us assess the reasonableness of the offer and present it clearly to the student. An unclear offer may result in a review continuing when a fuller explanation could have supported earlier resolution.

Where the offer includes a practical remedy, the provider should explain:

• What it will do.
• When it will do it.
• Any action the student must take.
• Any deadline for accepting or taking up the remedy.
• Any conditions attached to the offer.

This information is particularly important for remedies linked to an academic timetable.

Where the offer includes a financial remedy, the provider should explain:

• The amount offered.
• What the payment is intended to address.
• Whether the amount relates to one issue or several issues.
• The proposed recipient of any refund.

A breakdown can be helpful where the offer covers tuition fees, financial loss and distress or inconvenience.

When we Recommend a tuition fee refund following a review, our normal approach is for the refund to be returned to the original funding source, such as Student Finance England, Student Finance Wales or a sponsor. This can reduce the student’s outstanding loan balance and the interest that would otherwise accrue.

During settlement discussions, it is ultimately for the provider to decide how to frame its offer.

An offer made in full and final settlement is intended to bring the relevant complaint or issues to an end.

If the student accepts such an offer through our process, we will normally close the OIA complaint without completing a full review. The student would not normally be able to ask us to consider the settled issues again.

The same principle applies where a student has accepted an offer in full and final settlement during the provider’s own process. We would not normally consider the same issues through the OIA Scheme.

A settlement may also affect legal proceedings. Only a court can determine the legal effect of an agreement.

We would normally consider reopening settled matters only in exceptional circumstances. These might include evidence that:

• The provider misled the student about the consequences of accepting the offer. 
• The student was placed under unreasonable pressure.
• The provider did not carry out the agreed terms. 

A student may ask the provider to adjust an offer before deciding whether to accept it.

We may facilitate further discussion where the request appears reasonable or is not significantly different from the original offer.

We are less likely to do this where the student is seeking a substantially different outcome or one that does not appear reasonable in the circumstances. We will explain our view and ask the student whether they wish to accept or reject the original offer.

We will usually ask the student to explain their reasons and identify any concerns about the offer.

We will normally ask the provider to keep the offer open while we complete our review. Where the provider agrees, we can take the offer into account when deciding the complaint.

If our review identifies concerns with the provider’s decision-making or handling of the case, we will assess whether the offer reasonably addresses those concerns. Where it does, we may decide that no further remedy is required and record the complaint as Not Justified based on a Reasonable Offer.

In some cases, it may be clear without a full review that the provider has made a reasonable offer and there is no further issue that requires consideration. We may decide not to continue the review.

Where we close a complaint on the basis of a reasonable offer, we will normally make a Suggestion that the provider repeats the offer and keeps it open for a reasonable period, usually two months. This is a Suggestion rather than a Recommendation, but it forms part of the basis on which we have closed the complaint. We therefore expect the provider to follow it in these circumstances.

If the provider does not repeat the offer, the student may ask us to reconsider the complaint. This could result in the complaint being reopened. The provider should tell us immediately if it cannot repeat the offer and explain why.

We will usually ask a provider to keep an offer open while we complete our review. Some offers may reasonably be time limited, particularly where a practical remedy depends on an academic deadline.

If a provider does not keep an offer open, we can still consider whether it was reasonable.

Where our review identifies an error or other failing, we will assess whether the earlier offer would have provided an appropriate remedy. If it would, we may Recommend that the provider makes the offer again.

Where an offer was made only to bring the complaint to an end, and our review does not identify anything that requires a remedy, the provider may not be required to repeat it.

Providers should make any deadline clear and explain why it is necessary.

A provider may determine the terms of an offer made before we issue a Complaint Outcome. The student may accept or reject those terms.

However, we do not normally consider it necessary or consistent with the spirit of our Scheme to require a student to sign a complicated or legally binding agreement or confidentiality clause. An email or letter clearly setting out the offer and confirming that it is made in full and final settlement will usually be sufficient.

We may raise concerns where an agreement:

• Attempts to settle any complaint the student might ever have against the provider. 
• Prevents the student from discussing their experience more generally includes a gagging clause. 
• Contains other unnecessarily restrictive terms.

Confidentiality and gagging clauses can also prevent providers and students from sharing useful learning from complaints.

If a student rejects an offer containing unfair terms, we will consider whether those terms made the rejection reasonable. We may ask the provider to repeat the offer without the terms or make a Recommendation to that effect.

We do not consider restrictions such as “without prejudice” to be generally necessary or consistent with the spirit of our Scheme.
Where a provider accepts that something went wrong, a clearer approach is to make an offer in full and final settlement of the matters raised in the OIA complaint.

“Without prejudice” is a legal term that can be difficult to understand and may have different effects depending on the circumstances. Using it after a failing has been identified may undermine the clarity of an otherwise reasonable offer.

If a provider uses the term, it should explain:

• What it means by the term. 
• What restrictions it believes apply. 
• Whether the offer is intended to resolve an OIA complaint, legal proceedings or both. 

We may ask for more information before presenting the offer to the student.

An attempt to use “without prejudice” to prevent us from considering an offer, or the fact that an offer was made, is unlikely to be reasonable. Our reviews do not apply the same rules of evidence as court proceedings. We will usually consider whether a rejected offer was reasonable, regardless of the label applied to it.

Any question about whether an offer can be used as evidence in legal proceedings is for the courts.

A student cannot normally pursue legal proceedings and an OIA complaint about the same issues at the same time.

Providers should tell us if they become aware of related proceedings or negotiations. We may need to place the OIA complaint on hold or close it, or the student may need to pause or withdraw from one of the processes.

The OIA process and legal proceedings are separate. We would not normally expect a provider to use our process to negotiate the settlement of a legal case. A provider may, however, contact us to discuss placing the OIA complaint on hold while the student considers a legal settlement offer.

If a legal settlement resolves the same issues as the OIA complaint, we would not normally be able to consider those issues through our Scheme.

If a provider does not carry out an accepted settlement, the student may ask us to reconsider their complaint. We may reopen the complaint and complete a review.

The provider should tell us immediately if it cannot deliver an agreed term and explain:

• What has happened. 
• Whether the difficulty is temporary. 
• What alternative action it proposes. 
• When it expects to resolve the matter.