CAF has responded to a consultation by the Office of the Independent Adjudicator (OIA) on its proposed student complaints scheme, warning that thousands of undergraduates and postgraduates at English universities could wrongly conclude that they have nowhere to take a free-speech complaint unless the ombudsman adopts CAF’s proposed changes to its draft guidance.
The consultation follows the Government’s January 2025 decision to exclude students from the Office for Students’ (OfS) new free-speech complaints scheme. Due to commence on 1 September 2026, the scheme will instead be available only to university staff, non-student members and visiting speakers. Students will have to rely on the OIA as their sole specialist external route for complaints alleging breaches of the duties inserted into the Higher Education and Research Act 2017 (HERA) by the Higher Education (Freedom of Speech) Act 2023 (HEFSA).
As CAF explains in its submission, part of the difficulty is that the OIA operates under an older statutory framework. Established under the Higher Education Act 2004, it cannot consider complaints “to the extent that” they relate to matters of academic judgment. Traditionally, that has prevented the ombudsman from deciding the merits of academic decisions and, in particular, whether a student deserved a higher mark, whether a dissertation met the required scholarly standard or whether an examiner reached the correct academic conclusion.
That is not, in itself, the problem. The OIA has long considered complaints involving freedom of speech and, as its own guidance explains, students “can complain to us about anything their provider has done or failed to do”. And yet the legal landscape has changed considerably since 2004, with HERA now imposing a statutory duty requiring universities to take reasonably practicable steps to secure freedom of speech within the law for students.
Importantly, the OfS has made clear that those duties are not confined to decisions taken by governing bodies, and may also be engaged by decisions about teaching, curriculum, reading lists, research and research ethics. Decisions taken by academic staff may therefore form part of the conduct through which a university’s compliance with its statutory free-speech duties is assessed.
So what happens when the same facts raise both an issue of academic judgment and a possible breach of those duties? As it happens, the OfS confronted precisely that question when designing its complaints scheme, which at the time was intended to accommodate students as well as academics. It concluded that complaints involving academic judgment should not simply be excluded, explaining:
“The Act will require us to consider every complaint that is capable of being referred under the scheme. It does not preclude us from considering matters of academic judgement. Under our proposals, we will seek expert academic judgment to inform our review where we consider that appropriate.”
That approach is significant because it is consistent with the possibility that a single complaint may simultaneously involve both an issue of academic judgment and an allegation that the provider failed to comply with the new statutory free-speech duties.
It is certainly true that the OIA’s draft guidance confirms that complaints involving procedural unfairness or bias may still be examined. But those familiar categories do not exhaust the possible relevance of HERA, since viewpoint discrimination does not always announce itself as bias or the misapplication of institutional policies.
A complaint may, for example, allege that a student’s work was penalised because it advanced a lawful but controversial or politically unwelcome conclusion, or employed a methodology to which an assessor objected on ideological grounds. Yet much of the dispute may still appear, on its face, to concern the dry and academically respectable language of methodology and scholarly standards.
Such a complaint may therefore initially look like an ordinary dispute about academic judgment. But it may also raise a distinct statutory question: whether the university, acting through those responsible for supervising or assessing the work, took the reasonably practicable steps required to secure the student’s lawful freedom of speech.
Indeed, the student may not even recognise the distinction themselves. As the OfS acknowledged when consulting on its own scheme, a free-speech claim may raise the question “whether there has been a breach of the relevant duty, and this may include breaches that the complainant does not explicitly allege”.
CAF’s casework on behalf of Solent University PhD student Matthew Keehan provides a good illustration. Keehan alleges that his research attracted hostility after he introduced the conservative philosopher Roger Scruton into seminar discussions of aesthetics, and that ideologically charged objections to his ethnographic work were subsequently expressed in the language of methodology.
Whatever the eventual outcome of his individual complaints, his case shows why the OIA’s public-facing documents should leave the relevant questions open for proper examination rather than appearing to close them off at the outset.
At present, CAF does not believe they do so with sufficient clarity. That matters because students consulting those documents may already have spent months in deteriorating relationships with supervisors or departments, while the future of their degree or academic career hangs in the balance. Following the Government’s decision to exclude them from the OfS complaints scheme, they have no other specialist external body able to determine whether their university breached its statutory free-speech duties and, where appropriate, provide a route to redress.
While the true scale of the problem is necessarily difficult to measure – not least because many students self-censor, abandon potentially controversial lines of inquiry before any formal dispute arises, or simply leave academia altogether – CAF has encountered further cases which traverse the same uncertain boundary between academic judgment and a possible breach of the statutory free-speech duties.
These include cases involving gender-critical postgraduate researchers, in which concerns arose from an ostensibly defensible refusal of research-ethics approval or pressure to steer research away from methodological approaches treating biological sex as a relevant variable.
As in Matthew’s case, such conduct may be capable of analysis as bias or procedural unfairness. But it may also raise a separate question as to whether the provider complied with its duties under HERA. The point is not to presume how the OIA would resolve such complaints, but to ensure that its public-facing documents make clear to students that this possibility remains open for examination.
CAF’s concern is therefore not that the OIA lacks experience of freedom-of-speech complaints, but that its draft guidance does not make sufficiently clear whether, before treating any part of a complaint as excluded academic judgment, the ombudsman will first identify whether the same facts also raise a question under HERA. Without that clarification, students may conclude that complaints arising from marking, supervision or curriculum are liable to be excluded before the free-speech issues they raise have been properly identified.
To address that ambiguity, CAF has proposed two modest changes to the OIA’s student-facing guidance. Neither would expand the OIA’s jurisdiction or require it to second-guess academic decisions about marking, dissertations or other matters of academic judgment. They would simply help ensure that students with nowhere else to turn are not left believing that the ombudsman’s door is closed to complaints like theirs.