Education and Skills Funding Agency

4. Mr N complains about the decision the ESFA reached about a search and drug swipe test carried out in his son’s room at a Further Education (FE) college (the College) following its re-investigation of his complaint.

5. Specifically, he says:

• the ESFA incorrectly said in January 2023 the College’s accommodation licence gave it the right to carry out an unaccompanied and unconsented search and drug swipe test, and that the guidance and legislation quoted by him during the complaints process did not apply to FE institutions.

6. As a result, Mr N says the ESFA failed to recognise the College’s accommodation licence contravened the law and government guidance. He says the accommodation licence gives the College the right to carry out searches in contravention of the law and this removed his son’s rights and is a risk to other students’ rights. He says this has caused him and his family further frustration because the search and drug swipe test were pivotal in the College’s decision to dismiss his son.

7. By bringing this complaint to us, Mr N would like the ESFA to reconsider the events and recognise the accommodation licence is flawed and in contravention of the law and government guidance. He would also like the ESFA to take steps to ensure the College updates its accommodation licence in line with the law and government guidance. Finally, he would like the ESFA to apologise for its error.

8. Mr N’s son lost his wallet on the College’s campus in 2019. When the wallet was found by staff, a substance alleged to be cocaine was found. The College subsequently investigated the matter and expelled Mr N’s son. During that investigation, the College performed a search of Mr N’s son’s room.

9. In January 2023, the ESFA told Mr N the search of the room was in-keeping with the College’s policies and procedures. Mr N said while the College’s policies and procedures may make provision for the search to take place, they are not in-keeping with national guidance and the law.

10. In September 2023, Mr N brought his concerns to us.

13. Mr N complains the ESFA incorrectly said in January 2023 the College’s accommodation licence gave it the right to carry out an unaccompanied and unconsented search and drug swipe test in his son’s room. He says the ESFA also told him the guidance and legislation quoted by him during the complaints process did not apply to FE institutions.

14. On 27 January 2023, the ESFA told Mr N the College’s accommodation licence, which his son had agreed to when he enrolled, allowed staff to access a student’s room for the purpose of ensuring all rules and regulations imposed by the College are being followed. The accommodation licence appears to be silent on any other provisions or conditions surrounding the search of a student’s room. The ESFA also told Mr N the legislation and guidance he had made it aware of did not apply to FE institutions but the contents of which could be seen as best practice.

15. Mr N told us the ESFA was incorrect.

16. He said if the ESFA allowed the College to continue to act outside of the law then the rights of students, including his son, were being removed. We recognise Mr N’s strength of feeling on these matters. His son was expelled from the College following an investigation regarding drugs, and Mr N says clear mistakes by the College led to his son’s expulsion. He turned to the ESFA to try and ensure the College was held to account.

17. In our role, we cannot give a legal view on matters pertaining to alleged breaches of law, as this is for a court. However, to consider Mr N’s complaint about maladministration on the part of the ESFA we have considered the legislation he brought to the ESFA’s attention, as well as the DfE guidance.

18. The DfE’s ‘Further education residential accommodation: national minimum standards’ says any search of a residential students’ personal belongings should be carried out in accordance with current legislation, and any guidance issued by the Secretary of State. This guidance references the ‘Further and Higher Education Act 1992’ as the relevant legislation.

19. Section 85AA and 85AB of the ‘Further and Higher Education Act 1992’ says a student’s possessions can only be searched in the presence of the student and another member of staff, except where there is a risk that serious harm will be caused to a person if the search is not conducted immediately and where it is not reasonably practicable to summon another member of staff. We understand a student’s room is treated as being part of their ‘possessions’ in this instance.

20. Our ‘UK Central Government Complaint Standards’ say organisations should give fair and accountable responses by giving a clear and balanced account of what happened, based on established facts. They should provide clear references to any relevant legislation, standards, policies, procedures, or guidance and should be accountable for their mistakes. They also say organisations should reach conclusions based on the evidence available.

21. After considering what the ESFA told Mr N in January 2023, and the legislation and guidance that appears applicable to this situation, we consider the ESFA did not act in line with the ‘UK Central Government Complaint Standards’. This is because it told Mr N the legislation and guidance he had provided to support his complaint did not apply, when it appears that it does.

22. We consider this has caused Mr N frustration and annoyance. This is because his view is that the legislation and guidance is not overly complex and is specifically written for situations like this. He says the ESFA should make sure the institutions it has oversight over should comply with the law, to make sure students’ rights are protected.

23. During our initial enquiries, the ESFA recognised it had not been as thorough and clear as it otherwise could have been when it wrote to Mr N in January 2023. As such, we asked the ESFA to apologise and reconsider its view, taking advice where necessary, and write to Mr N with the outcome.

24. This is because our ‘UK Central Government Complaint Standards’ and ‘Principles for Remedy’ say organisations should identify suitable and appropriate ways to put things right for service users who raise a complaint and, if possible, put people back in the position they would otherwise have been if not for its mistakes.

25. Further, our ‘Severity of Injustice Scale’ says we think an apology is appropriate in situations where an organisation’s mistakes have led to frustration and annoyance, and similar emotions, which a health adult would be expected to deal with on a regular basis without external support.

26. We have spent some extensive time discussing the matter with the ESFA, and as a result of that work, the ESFA has agreed to apologise, reconsider this issue, and write to Mr N by 31 May 2024.

27. With this in mind, we consider the ESFA has agreed to put things right for Mr N and we will take no further action as we have achieved a resolution (pending the completion of the agreed actions) in this instance.

1. We have carefully considered Mr N’s complaint about the Education and Skills Funding Agency (ESFA). He complains about the way the ESFA responded to his complaint. We recognise the matters Mr N has brought to us continue to be a source of frustration for him and his family.

2. We have seen that the ESFA’s complaint handling fell below the standards we expect, as set out in the relevant guidance. We have discussed this with the ESFA in the course of our work and it has agreed to take action to put things right for Mr N.

3. We have therefore decided to take no further action regarding Mr N’s complaint. We explain the reasons for our decision below.