For universities, colleges and other constituent institutions, the scheme introduces a new source of regulatory scrutiny and reinforces the importance of demonstrating compliance with freedom of speech obligations.
The purpose of the scheme
Universities and colleges in England are under a duty to take reasonably practicable steps to secure freedom of speech within the law. The OfS free speech complaints scheme provides a route for certain individuals to complain where they believe a provider has failed to meet that duty.
The scheme is not intended to act as a general complaints forum. The OfS makes clear that it cannot adjudicate all disputes between individuals and institutions and that its jurisdiction is confined to matters concerning the statutory freedom of speech framework.
Which institutions can be complained about?
The scheme applies only to:
- Higher education providers registered with the OfS.
- Constituent institutions of registered providers, including constituent colleges, schools, halls and similar bodies.
Complaints must therefore relate to organisations falling within the OfS’s regulatory jurisdiction.
What can be complained about?
A free speech complaint must allege that:
- An individual has suffered adverse consequences as a result of something the governing body of the institution has done, or failed to do; and
- Those adverse consequences arose because the institution has breached, or may have breached, its duty to secure freedom of speech within the law.
Importantly, complaints are not limited to decisions formally taken by a governing body. The OfS expressly notes that complaints may concern actions such as:
- Disciplinary action taken against an individual;
- Restrictions on research activity;
- The cancellation of a speaking event involving an invited speaker.
The scheme does not protect unlawful speech. The OfS also recognises that there may be circumstances in which institutions are entitled to impose restrictions on speech consistent with their legal obligations.
The importance of 1 September 2026
The scheme only applies to actions or omissions occurring on or after 1 September 2026. Complaints relating solely to events before that date fall outside its scope.
However, the OfS provides examples showing that post-1 September 2026 actions connected to historic events may still be considered. For example, disciplinary action taken after 1 September 2026 could potentially be reviewed even if it concerns speech that occurred years earlier. Conversely, a complaint process completed after 1 September 2026 will not become eligible merely because the underlying event pre-dated the scheme’s commencement.
The OfS has also introduced transitional arrangements for complaints that straddle the commencement date.
Who can bring a complaint?
The scheme is deliberately limited to specific categories of “eligible persons”. Individuals may complain if they are or were:
- A member or member of staff of a registered higher education provider or constituent institution;
- An applicant for an academic staff position;
- A person who was, or was invited to be, a visiting speaker.
This means that eligibility extends beyond employees and can include external speakers and applicants who have never formally joined the institution.
Students are generally excluded
One of the most significant features of the scheme is that students cannot ordinarily bring complaints through it. Instead, students are expected to:
- Use their institution’s internal complaints procedures; and
- If dissatisfied, pursue the matter through the Office of the Independent Adjudicator (OIA).
The OfS notes that individuals who are students but also hold another qualifying status, such as a staff role, may be able to complain where the issue relates to that other capacity.
Internal processes must normally be used first
The OfS expects institutions to have the first opportunity to address concerns.
A complaint will normally only be accepted:
- Once the relevant internal complaints, appeals, grievance or disciplinary process has concluded; or
- Once 90 days have elapsed since that process began.
Accordingly, the scheme functions primarily as a secondary review mechanism rather than a first-instance forum.
What cannot be complained about?
The guidance identifies several important exclusions.
Pre-September 2026 events
The OfS cannot investigate actions or omissions that occurred before 1 September 2026, subject to the transitional principles described above.
Matters before the courts
The OfS will not review a complaint where the complainant is or has been involved in legal proceedings concerning the same subject matter. The regulator may, however, exercise discretion where proceedings have been formally stayed or adjourned.
Anonymous complaints
Anonymous complaints will not be considered because the OfS must be able to assess the adverse consequences allegedly suffered by the complainant. Individuals concerned about disclosing their identity may contact the OfS separately regarding protective arrangements.
How a complaint is made
The OfS has established a structured process for submitting complaints.
The complainant, or their representative, must complete the prescribed complaint form and provide information including:
- The identity of the institution;
- Their relationship with it;
- Any previous internal complaint processes;
- Any related court or tribunal proceedings;
- Details of the complaint and supporting evidence.
Complaints can be submitted by the complainant directly or through an authorised representative, which may include a trade union representative, colleague or lawyer.
The OfS may also treat multiple related complaints as a group complaint where appropriate.
How the OfS investigates complaints
If a complaint proceeds, the OfS will notify the institution’s accountable officer and chair of the governing body and invite a response. Institutions will normally be asked to respond within 14 days, although extensions may be granted.
The regulator may also:
- Request further information;
- Hold meetings with the institution;
- Seek evidence from the parties;
- Obtain input from independent experts.
Information provided by one party will generally be shared with the other party to enable a fair and informed process.
How decisions are reached
The OfS applies a “more likely than not” standard when assessing complaints. This suggests it will conduct its own review of actions afresh and not apply something akin to a judicial review unreasonableness or perversity standard. Providers will therefore be under more intense scrutiny.
A complaint will be found justified where the OfS concludes that:
- The institution has breached, or is breaching, its free speech duty; and
- The complainant has suffered adverse consequences that are more than minor or trivial as a result.
A complaint will be partly justified where a breach is established but the complainant has suffered either no adverse consequences or only minor or trivial adverse consequences.
If no breach is established, the complaint will be found not justified.
Before a final decision is issued, all parties are given an opportunity to comment on the provisional findings.
Recommendations and financial remedies
Where a complaint is justified or partly justified, the OfS may make recommendations to the institution. These may include:
- Issuing an apology;
- Revising policies or procedures;
- Changing institutional practices;
- Paying a sum of money to the complainant.
The OfS states that it intends, where appropriate and possible, to formulate recommendations aimed at restoring the complainant to the position they would have been in had the relevant circumstances not occurred.
Importantly, failure to follow recommendations may lead to further engagement by the OfS as part of its wider regulatory oversight and, in appropriate cases, could escalate into regulatory action.
Publication and reputational impact
Transparency is a significant feature of the scheme.
The OfS expects normally to publish:
- The outcome of a complaint;
- The identity of the institution concerned;
- The reasons for its decision;
- Any recommendations made.
Although individuals’ names will not usually be published, the OfS acknowledges that identities may sometimes be inferred from the information released.
The regulator also plans to publish statistical information concerning complaint volumes, outcomes and handling times.
Cost recovery
The scheme includes a further regulatory consequence that institutions should note. Where a complaint is found to be justified or partly justified, the OfS may require the institution to reimburse its costs incurred in reaching the decision. Any such requirement will be communicated alongside the Notice of Complaint Outcome.
Key takeaways for providers
As the scheme comes into force, providers should consider:
- Reviewing freedom of speech policies and procedures.
- Ensuring disciplinary, event management and complaints processes properly account for free speech obligations.
- Maintaining clear evidence trails and decision-making records.
- Training staff responsible for events, academic affairs and disciplinary matters.
- Assessing carefully the risks associated with recommendations, publication of findings, reputational impacts and potential cost recovery.
The new scheme creates more than a complaints process. It introduces a dedicated regulatory mechanism capable of producing public findings, recommendations for financial payments and further regulatory scrutiny. Universities and colleges will therefore need to ensure that their approach to freedom of speech is not only legally compliant but also capable of withstanding detailed review by the OfS.
If your institution requires help with reviewing its internal policies or with complaints themselves, please contact James Murray.