Val Lloyd - Chair, Petitions Committee

National Assembly for Wales

Re: P-03-204 Public Accountability and Consultation in Higher Education

Saturday, 19 December 2009

Dear Ms Lloyd

Thank you for your letter dated the 18th December 2009 and your invitation respond to the letter from former Education Minister Jane Hutt dated the 18th December 2009. I am more than happy to attend a meeting of the committee to give oral evidence in support of comments made in reply.

I draw your attention to the press release dated 2nd August 2009 from the former DIUS Committee concerning its Eleventh Report entitled Students and Universities to whom I submitted a memorandum as evidence. While I fully appreciate that Petitions Committee cannot get involved in personal issues, my comments are in keeping with its recommendations that was based upon personal experience. Therefore, in that context, I have used the knowledge gained from my experience as a mature student and from assisting others.

Assembly Government Powers

Further and Higher Education Act 1992 (c.13) as amended by the Education Act 2002 C.32 and by SI 2005/3238;

• section 15: Power to specify which existing institutions will fall into the further education corporations.
• sections 16 and 51: Power to incorporate educational institutions in Wales as corporations.
• section 17(2): Power to appoint ‘operative date’ for ‘further education corporation’ (a body corporate established under section 15 or 16 of this Act).
• section 19(4AC): Power to allow in limited cases a further education corporation to form, participate or become a member of a charity.
• section 22: Power to approve or notify instruments of government of such corporations.
• section 27: Power to dissolve further education corporations.

Power to designate institutions as eligible to receive funds from the Council.

• section 38: Power to determine rate of interest and the account of capital to be paid by a Council to a local authority as excepted loan liabilities.
• section 47: Order transferring higher education corporation to the further education sector.
• section 49A: Power to issue guidance as to the consultation which should be undertaken by further education authorities.
• section 50: Regulations requiring further education institutions to publish prescribed information.
• section 57: Only applies to Further Education. Power to intervene in the affairs of an institution in the event of mismanagement or breach of duty or loss of efficiency or failing to give an acceptable standard of education or training. Power to give directions.
• section 57A: Duty to give a statement of policy as to their exercise of powers under section 57. Duty to review it regularly. Power to revise it. Duty to lay statement or revised statement to the Assembly.
• section 62(3): Power to appoint chair and members of the Higher Educational Funding Council for Wales.
• section 65: Power to fund Council.
• section 69: Power to require information from Councils.
• section 78: Power to direct the financial year for higher education corporations.
• section 82: Power to exercise joint functions to the extent that the Welsh Ministers is discharging its functions under Part 2 of the Learning and Skills Act 2000.
• Schedule 1 paragraph 4: Power to remove member of either the Further or Higher Funding Councils for Wales.
• Schedule 1 paragraph 11: Power of representative of the Secretary of State to attend meetings of either Councils.

Higher Education and Funding Council (HEFCW)

“HEFCW consults with the HE sector in Wales and, occasionally, with other interested parties in order to get a wide range of views to feed into policies that affect HEls. These consultations are publically available on HEFCWs website. Section 66 FHEA 1992 requires HEFCW to consult on the terms and conditions it proposes to impose on funding made to HEls.” Jane Hutt

There were two consultations published on HEFCW’s website during 2009, what is missing is public consultation concerning the financial collapse of the University of Wales Lampeter and subsequent merger with Trinity University College. The public should have been consulted on this merger and the conditions upon which they would be allowed more of our money. If this happened to a school college or hospital there would be a public outcry with people quite rightly demanding to know what went wrong, and why nobody has been held to account for what is an obvious failure.

With regard to the collapse of the University of Wales Lampeter, there is considerable evidence that financial failure was partly to do with the adverse publicity concerning the appalling way in which it treats its students. Clearly, there is a need for an inquiry into the student experience at Lampeter so that lessons can be learned.

HEFCW has the statutory roles of fund provider, financial regulator and quality assurance with regard to standards of conduct and governance. Therefore, higher education does not have the inherent safeguards of these duties divided amongst different bodies with respective statutory duties that prevent commercial, financial and self-interest overriding student needs.

The Public Audit (Wales) Act 2004 took away the power of the Auditor General for Wales to intervene and take over the running of an HEI on the grounds of financial mismanagement. HEFCW has a Memorandum of Understanding with the Welsh Assembly Government to provide value for money. However, the Welsh Audit Office WAO has confirmed they have no powers of intervention and that members of the public have no right of complaint to the WAO, to the institution or its  auditors.

HEFCW claims it has a procedure for dealing with allegations of financial mismanagement, which from experience amounts to referring the complainant back to the institution. In theory HEFCW have the power to impose conditions on HEI’s but there is the danger that in doing so is going to be viewed as a failure to regulate. I suggest this is relevant to the reasons why there has been no inquiry into the failure of the University of Wales Lampeter.

Higher Education Act 2004 Student Complaints Scheme

My complaints while at Lampeter were outside the remit of the Office of the Independent Adjudicator for Higher Education (OIA) and unfortunately were eventually heard by the then Visitor Bishop Carl Cooper after a bizarre battle lasting several years. During this time, I had to explain to both the Visitor and Academic Registrar at Lampeter what the rules were by sending them both a student leaflet. Recent contacts from students at Lampeter are evidence that rules and procedures are still being ignored, and I doubt if the OIA would have made the effort or has the remit to investigate serious issues of corporate maladministration.

The growing number of complaints to the OIA which attracted media attention during the middle of this year does not tell the full story and there is growing concern that the independent adjudicator being four fifths owned by the universities is not as ‘independent’ as they claim. Under the Act student complaints to the OIA, carry privilege from legal action for any allegation they may make. However, it is common practice for students to have to apply to make a complaint on an Application for Consideration of a Complaint Form. The form clearly states that any complaint the university thinks unjustified will be dismissed without consideration, and will not hesitate to take action against any student that it considers to have made a malicious accusation.

This is no idle threat I can testify that students will receive a letter from solicitors in my case Eversheds threatening a claim for damages and being prevented from repeating such accusations by means of a High Court injunction. The student is required to sign an undertaking never to tell the truth again in generous consideration of the University not taking any further action. The psychological effects of this having been the victim of injustice or abuse are no different from having them beaten up down a dark alley to keep them quiet; it can leave them just as dead. For these reasons, very few students will stand up to this kind of intimidation and we may never know the full extent of what goes on inside these autonomous public spending bodies.

Under the Act students have a right to complaint to the degree awarding body and for many that is the Federal University of Wales who also have or did have a policy under Appendix J of their financial regulations concerning the Public Interest Disclosure Act (PIDA), which includes students. All universities are required to have a policy but few actually comply with the law. In pursuing a complaint, I was informed by the OIA that as the Federal University does not have any complaints procedures then they cannot investigate any complaint. This despite a requirement by the guidelines issued by HEFCW, the Committee of University Chairmen (CUC), the QAA, the Nolan Committee on Standards in Public Life, and Administrative Law to name but a few and something that HEFCW has chosen to ignore.

I wrote to the Visitor HM the Queen who while HM does not have any powers she did write to the former First Minister Rhodri Morgan the issue, who upon receiving it placed it on file and ignored it as it said nothing new! Attempts to force an investigation under their policy under PIDA, which is not enforceable in law were unsuccessful.

Quality Assurance and Accountability

Previous attempts to involve the Quality Assurance agency in my complaints about the University of Wales Lampeter were met with the reply that the QAA has quote “no locus in the matters that you raise”. Further questioning their role to reassure the public about standards in higher education simply referred me back to this response. However, with the passage of time the QAA who by monitoring my website has in effect validated all my concerns about Lampeter

In August 2008, the QAA devised a Cause for Concern (CFC) procedure which according to its own guidelines on complaints all students should be informed of its existence and right to make a CFC complaint accordingly. Unfortunately, knowledge of this procedure is not finding its way to the students who need to know; in fact, it is being withheld while universities hide behind the law to conceal maladministration. The Quality Assurance Agency unlike ESTYN does not have any statutory duties it is simply contracted by HEFCW to fulfil its statutory duties as stated by Jane Hutt

“HEFCW has a statutory obligation under section 70 of FHEA 1992 to ensure that provision is made for assessing the quality of education provided in institutions where HEFCW provide, or are considering providing, financial support.”

To quote the QAA

“We carry out services under contract with HEFCE and HEFCW and our contracts are web-published. QAA has no statutory role, has no formal connection with Parliament and we are not covered by the Parliamentary Ombudsman.” http://www..qaa.ac.uk/aboutus/contracts/HEFCW2006-09.pdf The current contract expires at the end of 2009.

In November of this year, I made three Cause for Concern CFC complaints to the QAA concerning the University of Wales, Trinity University College and the University of Wales Lampeter in some cases dating back to 2002/3. More details about the procedure are here http://www.qaa.ac.uk/causesforconcern/default.asp I have raised concerns with the QAA about the structure of this process with regard to complex issues concerning injustice and abuse.

On Friday the 27th November for fear of further abuse I was  no longer able to continue with my CFC complaint. There is no doubt in my that was the sole reason it was published. I immediately submitted a complaint to HEFCW and asked the QAA what they proposed to do about the situation and what protection were they going to offer to prevent such deliberate attacks on students or staff who blow the whistle. I was told that the matter would be discussed between senior staff but unfortunately, I have not received a reply and suggest the answer is nothing and the QAA is content to ignore the matter. In reply to my complaint Richard Hirst Director of Finance and Corporate Services stated

“The term was used only as a shortcut to a specific page which had previously been accessed.”

My server logs state as fact that the specific page in question concerns the suicide risk to students at the University of Wales Lampeter. I include this because there is a real the possibility that these issues may well be raised in a Coroners Court, and I suggest you compare the impact of a sick mind using such terms if they came from the head of a school, college, or children’s services department or any public servant outside of higher education.

Despite this being gross misconduct and libellous my complaint was not taken seriously, no action was taken, I have not received an offer to make amends, and I have not been informed of the name of the person concerned. Moreover, server logs suggest that I was the topic of conversation between a number of interested parties. I have evidence that board members are fully aware of these matters and in my opinion, they have a case to answer for failing in their duty either legally or morally to act and demand an inquiry.

Under HEFCW complaints procedures this matter will be referred to the Chief Executive, then a Complaints Board and then to the Public Services Ombudsman.

I will resume my CFC complaints to the QAA together with another CFC complaint about HEFCW, however, as I have already stated the QAA is only a contractor and commercial issues may well out weight student concern. By comparison, ESTYN would have nothing to fear from addressing such appalling conduct from a financial provider with regard to schools and colleges.

I have already sought advice from the Public Services Ombudsman with regard to the QAA in this matter and I am waiting for a reply from their legal department, however, I suggest HEFCW will have to answer for any failure by the QAA in these matters. I expect there will be an inquiry by the PSO into HEFCW so if it can be proved that members of the board are involved or have failed to act then I can petition the Assembly to remove them from office.

HEFCW and Freedom of Information FOI

I have made a formal complaint to the Information Commissioner concerning the refusal of HEFCW to supply a copy of the Haines Watts report into the finances of the University of Wales Lampeter. In their reasons given for their refusal the Chief Executive has failed to act reasonable nor has he reached his decisions in a reasonable way. Based upon recent rulings he fails to understand the difference between commercial and financial interests and that he is concealing the failure of HEFCW to ensure proper governance for fear that the merger with Trinity University College will not take place. He fails to understand the FOI cannot be used to conceal maladministration.

It is an example of where we the taxpaying public have every right to know what went wrong and why nobody has been held to account. The Welsh Assembly needs to bring an end to kind of serfdom and adhere to the old saying no taxation without representation.

HEFCW and the Charity Act 2006

After considerably lobbying by myself with the Charity Commission I am pleased to say that the Charity Commission has confirmed that unlike its English counterpart HEFCE, HEFCW will not be the regulator for Welsh Universities, that job will be undertaken by the Charity commission itself.

The main evidence for stating that HEFCW is unfit for purpose was pointing out to HEFCW who claim to have a responsibility for financial management. I pointed out to HEFCW the guidelines issued by the then Department of Trade and Industry DTI on these matters. The response from HEFCW was that “DTI guidelines were a matter for them”, they totally disregarded the fact that such guidelines are also referred to by the Charity Commission as applying to Charity Companies or ‘Charcoms’ such as universities and that HEFCW had a duty to investigate and ensure compliance. HEFCW has demonstrated a total disregard to ensure value for taxpayers’ money.

Other Quality Assessments

“The Assembly Government seek the advice of the QAA as to whether the institution has met the criteria.” Jane Hutt

The QAA is neither independent or impartial it is only a contractor with no statutory duties nor accountability to the Public Services Ombudsman and as such has the inherent danger that commercial concerns may outweigh the public interest. It has yet to prove itself of being able to investigate concerns regarding HEFCW in the same way it would investigate a University.

The Need for Change

I make no apology for raising the above issues as it is evidence to substantiate the advice from  an expert in University governance that the only way to bring this sort of maladministration to light is to publish it in a magazine or journal. However, getting such material published is not easy and so the only way to tell the truth is by publishing it to the Internet with resulting threats of legal action at public expense to conceal their own misconduct. I have responded with the invitation to go ahead in the knowledge that what I am saying is based on fact and explains why the invitation was ignored.

Clearly, the above issues need to be addressed to prevent Universities from hiding behind academic independence to conceal maladministration; moreover, something needs to be done about the culture of denigrating students who complain.  Ministers and Assembly Members are choosing to ignore their constituents in these matters.

Students as Vulnerable Consumers

The introduction of loans and special help for the disadvantaged has meant the erosion of social class based entry into higher education; however, what is disturbing are the reports of a 75% drop out rate of students in this group.

With poor regulation, inadequate accountability and vast amounts of debts from loans hanging over their heads, students are in a vulnerable position with regard to making any complaint for which there seems to be automatic retribution as a conditioned response. Worse still is the abuse of office, position and power in the sexual predation of students.

The doctrine of ultra vires was used by the Thatcher government to curb student power and has gone too far.  To balance out this inherent disadvantage so that students and staff can as those in higher education claim to ‘work in partnership’, then students should be designated vulnerable consumers to create a level playing field.

Eversheds LLP – Abuse of Dominant Market Position

Eversheds LLP has around 100 UK universities on their books including the University of Wales Lampeter and I believe Trinity University College. Various listings on the internet for higher education solicitors state that Eversheds has the higher education market ‘sewn up’. I think ‘stitched up’ would be a better description. Eversheds were instrumental in setting up the Office of the Independent Adjudicator for Higher Education (OIA) for which it provided legal advice. The OIA does not meet the standard of impartiality in other regulatory bodies nor in the mind of students or Joe Public.

This situation is evidence that the dominant market position of Eversheds not only acts against the interests of students as vulnerable consumers but those of the taxpaying public and society as a whole.

Lecturers Regulation and Registration

Lecturers should be subject to the same regulation the same as teachers and registered with the equivalent as the General Teaching Council whose purpose is as follows:

• To deal with cases where it is alleged that a teacher has behaved unacceptably or their teaching is seriously below standard. Cases can be referred by employers, government departments students, families or the public.
• To issue various sanctions, ranging from a reprimand to a prohibition order, which bans the teacher from teaching.
• To have a responsibility to act on these allegations which is set out in the Code of Conduct and Practice for Registered Lecturers.

Public Appointments

I have complained to the Commissioner for Public Appointments about the Chair of HEFCW but she decreed that the appointment did not break and rules, but then the same was said about the abuse of MP’s and AM’s expenses which also complied with the rules and I suggest changes based upon the same principles are made accordingly.

Change in the Culture of Higher Education

To look at the culture more closely here are the current Higher Education and Funding Council (HEFCW) Council Members from the HEFCEW website.

Chair - Mr Roger Thomas

Former:  Chair of Governors and Pro-Chancellor of University of Glamorgan, and Chairman of Chairs of Higher Education Wales.  In the latter capacity, he was a member of the Chairs’ Group of Committee of University Chairmen (CUC) and also a Member of the Board of Universities and Colleges Employers Association (UCEA); and the Joint Negotiating Committee for Higher Education Staff. A former senior partner at Eversheds solicitors and DCELLS Ministerial Advisory Group Review of Higher Education in Wales

Chief Executive - Professor Philip Gummett

Members

• Mr David Allen Registrar and Deputy Chief Executive, University of Exeter
• Dame Sandra Burslem Former Vice-Chancellor, Manchester Metropolitan University
• Professor Mari Lloyd-Williams Professor and Director of Academic palliative and Supportive Care Studies Group, University of Liverpool
• Professor Leni Oglesby Former Senior Deputy Vice-Chancellor, University of Teeside
• Professor D Garel Rhys Former Director of the Centre for Automotive Industry Research, Cardiff University
• Mr Kenneth Richards Honorary Research Fellow at the Cardiff School of Social Sciences
• Professor Sir Brian Smith Former Vice-Chancellor Cardiff University
• Mrs Pauline Thomas Head of Abertillery Comprehensive School
• Professor Robin Williams Former Vice-Chancellor, Swansea University

The Concept of Groupthink

The list of notable academics has created a situation whereby academics provide a public service, academics provide the money, academics provide the regulation for the money, and academics are responsible for standards, as a result, consultation and accountability is purely ‘academic’ and out of touch with the real world. Moreover, I suggest the rights of the individual and public consultation is ignored and that politicians and civil servants seem to be afraid of making any sort of challenge despite the obvious maladministration staring them in the face. From the Wikipedia.

“Groupthink is a type of thought exhibited by group members who try to minimize conflict and reach consensus without critically testing, analyzing, and evaluating ideas. Individual creativity, uniqueness, and independent thinking are lost in the pursuit of group cohesiveness, as are the advantages of reasonable balance in choice and thought that might normally be obtained by making decisions as a group. During groupthink, members of the group avoid promoting viewpoints outside the comfort zone of consensus thinking. A variety of motives for this may exist such as a desire to avoid being seen as foolish, or a desire to avoid embarrassing or angering other members of the group. Groupthink may cause groups to make hasty, irrational decisions, where individual doubts are set aside, for fear of upsetting the group’s balance. The term is frequently used pejoratively, with hindsight.

Causes of groupthink

Highly cohesive groups are much more likely to engage in groupthink, because their cohesiveness often correlates with unspoken understanding and the ability to work together with minimal explanations (e.g., techspeak or telegraphic speech). Vandana Shiva refers to a lack of diversity in worldview as a “monoculture of the mind” while James Surowiecki warns against loss of the “cognitive diversity” that comes from having team members whose educational and occupational backgrounds differ. The closer group members are in outlook, the less likely they are to raise questions that might break their cohesion. Although Janis sees group cohesion as the most important antecedent to groupthink, he states that it will not invariably lead to groupthink: ‘It is a necessary condition, but not a sufficient condition’ (Janis, Victims of Groupthink, 1972). According to Janis, group cohesion will only lead to groupthink if one of the following two antecedent conditions is present:

• Structural faults in the organization: insulation of the group, lack of tradition of impartial leadership, lack of norms requiring methodological procedures, homogeneity of members’ social background and ideology.
• Provocative situational context: high stress from external threats, recent failures, excessive difficulties on the decision-making task, moral dilemmas.

Social psychologist Clark McCauley’s three conditions under which groupthink occurs:

• Directive leadership.
• Homogeneity of members’ social background and ideology.
• Isolation of the group from outside sources of information and analysis.

Symptoms of groupthink

To make groupthink testable, Irving Janis devised eight symptoms indicative of groupthink (1977).

• Illusions of invulnerability creating excessive optimism and encouraging risk taking.
• Rationalizing warnings that might challenge the group’s assumptions.
• Unquestioned belief in the morality of the group, causing members to ignore the consequences of their actions.
• Stereotyping those who are opposed to the group as weak, evil, biased, spiteful, disfigured, impotent, or stupid.
• Direct pressure to conform placed on any member who questions the group, couched in terms of “disloyalty”.
• Self censorship of ideas that deviate from the apparent group consensus.
• Illusions of unanimity among group members, silence is viewed as agreement.
• Mind guards — self-appointed members who shield the group from dissenting information.

Groupthink, resulting from the symptoms listed above, results in defective decision making. That is, consensus-driven decisions are the result of the following practices of groupthinking

• Incomplete survey of alternatives
• Incomplete survey of objectives
• Failure to examine risks of preferred choice
• Failure to re-evaluate previously rejected alternatives
• Poor information search
• Selection bias in collecting information
• Failure to work out contingency plans.

Yours sincerely

Trevor Mayes
Appendix 1

Innovation, Universities, Science and Skills Committee - Eleventh Report

Students and Universities

Session 2008-09

Press Release - 2 August 2009

UNFIT STANDARDS SYSTEM, ‘DEFENSIVE COMPLACENCY’ FROM THE TOP AND DISCRIMINATION AGAINST PART-TIME AND MATURE STUDENTS

MPS DELIVER WAKE UP CALL TO HIGHER EDUCATION SECTOR

The Innovation, Universities, Science and Skills Committee calls for urgent changes in the higher education sector, in a report published today examining students’ university experience.

The report says the current system for safeguarding standards is out of date, inconsistent and should be replaced. The Quality Assurance Agency should be transformed into an independent Quality and Standards Agency with a specific standards remit.

The Committee also says that the culture at the top of the sector should change. The Committee found defensive complacency in the leadership of the sector and no appetite to explore key issues such as the reasons for the proportional increase in first and upper second class honours degrees in the past 15 years.

It is unacceptable to the Committee that Vice-Chancellors could not give a straightforward answer to the simple question of whether first class honours degrees achieved at different universities indicate the same or different intellectual standards.

Support for and treatment of part-time and mature students should be improved - the current system amounts to a form of discrimination. The Government’s forthcoming review of fees needs to examine all aspects of support for part-time and mature students, both direct financial support and changes to allow universities the flexibility to attract and retain part-time and mature students.

The Committee also says the current bursary arrangements introduced to cushion the effect of top-up fees on students from poorer backgrounds need to be replaced with a national system. It is not fair that students from identical backgrounds with the same financial need receive significantly varying bursaries depending on which university they attend.

The report also says:

• Further education colleges should play a larger role in the development of higher education. Following the model of American community colleges, a student should be able to start higher education in a further education college and then transfer to a university.

• The Government should help create a credit transfer system which will allow credit earned in one institution to be transferred to another.

• Schemes such as those run by Leeds University for students from disadvantaged backgrounds should be standard practice across the sector.

• There is a lack of consistency across the higher education sector, despite excellent practice in places, and codes of practice applying to all institutions receiving public money should be introduced.

• Elements of chance in the admissions process should be reduced so that students get a fairer deal on access to university.

•  Protection for whistleblowers should be addressed - current arrangements are inadequate.

Phil Willis MP, the Chairman of the Committee, said: “We do need to recognise that our higher education system is regarded as world class, and we celebrate that. But to remain competitive in the 21st century the complacency we detected must be addressed.

“We are extremely concerned that inconsistency in standards is rife and there is a reluctance to address this issue. The QAA needs radical transformation if we as a country are going to meet the needs of a 21st century higher education system with 2 million students.”

“Much more needs to be done to help part-time and mature students. There has to be equal treatment for all students and a system that has the flexibility to take account of the needs of, for example, a mature student who has family commitments.”

“The current bursary arrangements are not working. On any objective test—widening participation, meeting student need or fair access to higher education—they fail both the student and the taxpayer.  We therefore call for a national system anchored to student need.”

http://www.parliament.uk/parliamentary_committees/ius/ius_020809.cfm