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Higher Education Act 2004

Part 2 - Review of student complaints

30.Those universities and colleges which were originally established by Royal Charter have Visitors who exercise a supervisory role over an institution's domestic affairs, including ruling on complaints by students which cannot be resolved through an institution’s internal procedures.  The Visitor of most universities is the Crown acting through the Lord Chancellor or the Lord President of the Privy Council.  Other Visitors are eminent people who are either specified in the Charter or appointed by the governing body. Rulings of the Visitor are binding on institutions and courts will only intervene in such matters in very limited circumstances.  New universities and higher education colleges do not have Visitors and unresolved complaints by students can be taken to the courts.

31.Section 20 provides that Visitors of qualifying institutions will no longer have any jurisdiction over student complaints, including complaints about admissions to qualifying institutions as a student. Section 46 also removes the jurisdiction of the Visitor over staff disputes.

32.Section 13 gives the Secretary of State and the National Assembly for Wales the power to designate a body corporate that operates a student complaints scheme for England or Wales respectively. The scheme must provide for the review of qualifying complaints as defined by section 12. These are complaints against qualifying institutions which are made by individuals as students or former students at those institutions (or students studying towards an award from a qualifying institution), except those which relate to matters of academic judgement. The complaint must relate to the acts or omissions of the qualifying institution. Section 11 sets out the qualifying institutions that will be subject to the scheme, which include all universities in England and Wales, constituent colleges of universities such as the colleges of the Universities of Oxford and Cambridge, higher education corporations and institutions designated by the Secretary of State or the National Assembly for Wales as eligible to receive funds administered by a higher education funding council.

33.Section 13 sets out certain conditions that must be met before the Secretary of State, or the National Assembly, may designate a body that operates a student complaints scheme. These conditions include a requirement for the body in question to comply with Schedule 1 and for the provisions of the scheme that it operates to comply with Schedule 2. The reviewer of student complaints under the scheme may make recommendations to an institution, which are non-binding. Paragraph 12 of Schedule 2 enables the Secretary of State, or the National Assembly for Wales, to amend the Schedule by regulations. These powers will enable the Schedule to be modified (for example, in order to respond to changing circumstances or to make the scheme more effective). In this Part of the Act a body that is designated under section 13 is referred to as the “designated operator” (see subsection (5)(b) of that section). A scheme may relate to institutions other than qualifying institutions. Where this is the case, the provisions of the scheme that apply to complaints against other institutions do not need to meet the requirements of Schedule 2.

34.Section 15 requires the governing bodies of qualifying institutions to participate in a scheme provided by the designated operator. This means complying with any obligation placed on them by the scheme (including any obligation in respect of payments to the operator).

35.Section 14 provides that as long as a body remains the designated operator it must comply with the duties set out in Schedule 3.

36.Section 16 and Schedule 4 give the Secretary of State and the National Assembly for Wales the power to terminate the designation of a body as the designated operator in certain circumstances. Schedule 4 provides that the Secretary of State or the National Assembly for Wales can give notice of termination if the operator no longer meets the conditions for designation. The designated operator may also give notice of its intention to cease operating the scheme. Where an agreement or notice to terminate an operator’s designation has been made or given, or the operator has ceased to exist, the Secretary of State, or the National Assembly for Wales, can make alternative transitional provision, including provision as to payments, by regulations under section 18.

37.Section 17 provides privilege in relation to defamation in connection with the review of student complaints.

38.Section 19 provides that the time limit of six months for bringing certain discrimination proceedings under the Sex Discrimination Act 1975, the Race Relations Act 1976, or the Disability Discrimination Act 1995 shall be extended by two months in cases where the complaint is referred under the student complaints scheme before the end of the six month period.

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