Elsewhere on the site we’ve looked in detail at the aspects of the student experience and the student-university contract – where there remains confusion about what students can and can’t complain about, but where those aspects appear in principle to be covered by consumer protection law or related legislation.
Here we’ve pulled out some of the key aspects of guidance from the Office of the Independent Adjudicator (OIA) to attempt to look in detail at what students definitely can raise a complaint about.
While OIA covers England and Wales much of the material would apply to complaints in Scotland and Northern Ireland.
As ever the detail and context of an individual student or group of students’ situation can impact – as can the detail of what a student was or wasn’t promised, has or hasn’t been told about, how something has impacted them, when things happened, the precise nature of the university-student contract, and so on.
Five core tests
In a number of its case summaries OIA sets out a series of things it expects when it reviews a provider’s handling of complaints. They act as a useful checklist for students and SUs:
- Whether the provider acted reasonably and treated the student(s) fairly;
- What the provider did at the time to minimise disruption for students affected by the circumstances, to try to put things right;
- What the provider promised, what the student could reasonably expect in terms of contact hours and other learning opportunities – and whether that was broadly equivalent to its usual arrangements;
- What the provider did to ensure that students were not disadvantaged academically and could achieve their learning outcomes;
- Where there has been a shortfall of delivery, what were the consequences for the student, and whether the provider has considered those consequences.
Keeping promises
In principle universities should keep any promises made to students. “Consumer protection legislation has not been suspended for students”, says one section – echoing messages from OfS. This means that in OIA’s view providers still should have delivered learning “and other services” that have been consistent with students’ “reasonable expectations”.
This “reasonable” thing shifts – it says that what providers can “reasonably” be expected to have delivered is likely to have “changed and evolved” as circumstances changed and evolved, especially as restrictions tightened again.
But it says that providers should have been “planning to deliver what was promised – or something at least broadly equivalent to it – and to ensure that learning outcomes can be met”. It’s unlikely to have been reasonable not to do that.
The questions of what has been reasonable and “broadly equivalent” again are about judgment here and the lack of case law is unhelpful. For example OIA might decide that a provider has been reasonable but the courts may not – in some cases for example the courts have held that a service provider has to see out the delivery of the contract even if doing so becomes very difficult or even financially ruinous.
Refunds
Many SUs have been thinking about what to do about demands from students for refunds – and a number of universities have issued blanket refusals to hand out refunds because of Covid-19.
OIA says that where providers have not or decide they cannot deliver what was originally promised they will need to consider how to put that right.
They say that any stated blanket refusal to consider tuition fee refunds in any circumstances is not reasonable. That’s because there may have been groups of students that have been particularly affected, and providers should have taken steps to identify those groups and address their issues. But they also need to have considered concerns raised by students about their individual circumstances.
Force majeure
There’s bad news for universities hoping to rely on “Force Majeure” clauses in relation to this academic year that allow them to avoid legal liability for not delivering on their contractual obligations.
OIA notes that during the initial crisis period (ie last academic year) providers may have been able to rely on those clauses. But the situation is different this academic year.
When it gets a complaint, OIA says it will:
- Look at the wording of any FM clause and whether it meets the requirements of consumer law
- The precise reason the provider was not able to deliver the teaching*
- Whether the provider has taken appropriate steps to mitigate the disruption, and
- Whether it is reasonable for the provider to rely on the clause.
*we think this is an unfortunate bit of wording – because complaints can (and often do) concern other issues than “teaching” not being delivered – and indeed a number of Covid complaints might actually refer (for example) to loss of access to services, facilities or other types of support.
It goes on to note that clauses that attempt to exclude a provider’s liability for failing to deliver the educational service to the required standard, and those giving the provider a wide discretion to change significant aspects of the course of study, contrary to students’ expectations, are unlikely to stand up to scrutiny.
Providers, it said, had time to prepare and plan for the longer-term effects of the pandemic, and so those effects are unlikely to be considered an extraordinary event outside of the control of providers “that is preventing them from delivering the service they have promised”
Quality – what can students complain about?
In its guidance OIA attempts to address a major issue previously identified about what a student can and can’t complain about – but it doesn’t really make things much clearer.
The central idea that it’s trying to hold on to is:
We can look at complaints about what was promised and what was delivered, but we can’t look at concerns that involve academic judgment such as the quality of academic provision.
The problem of course is that these two ideas may be in tension. What if you were promised something “high quality” and in a students’ view the online replacement isn’t? Is it enough to dismiss a complaint that the provider says issues of quality involve academic judgment? Or would a provider have to show that it followed some kind of policy or procedure to assure it as “quality”?
OIA says it can consider (for example):
- a complaint that a provider did not cover subject areas that it said it would
- that a student’s supervisor was unavailable
- that a student didn’t benefit from teaching because they could not access it
- the delivery method did not work for them
- that a provider did not support its students adequately
- that the provider did not follow a reasonable assessment process
But an assessment of the quality of what has been delivered is likely to involve academic judgment, which it can’t look at. This means OIA says it can’t consider (for example):
- A complaint that teaching was not of an adequate academic standard
- That an online teaching session was just not as good* as it would have been face to face
- That the student’s work was worth a higher mark
- Or that a postgraduate student did not get the right academic guidance from their supervisor.
*We think that OIA means “not as good” academically here but it isn’t clear. Without clarity this suggests that a provider would be able to argue that an “online year abroad” was “just as good” and a student couldn’t argue that it wasn’t “just as good”!
It says that it will look at whether what the provider has done is reasonable in the circumstances (so reasonable delivery in the middle of lockdown is likely to look different to reasonable delivery in a more managed and planned environment) but nevertheless this still looks confusing.
Specific types of student
OIA does put an emphasis on students’ individual circumstances and makes clear that arrangements that might have worked well for many students may not have worked for all – and so providers should have been “proactive” about identifying and supporting students who may have needed additional help.
There were several aspects that are helpful from an SU perspective that are worth noting:
For example:
- “Students are likely to encounter all sorts of accessibility issues.
- “Online teaching arrangements may not work for some students with learning or processing differences.
- “Some students will be shielding or have caring responsibilities that continue even after lockdown restrictions are eased.
- “Some will have poor internet connection – some will not have access to IT equipment at all.
- “Some will simply not be able to work effectively from the space they are living in.
OIA said that careful thought and planning was needed to address these issues in advance, whenever possible. Planning that starts with meeting the needs of those likely to have accessibility issues was more likely to result in arrangements that work for everyone. So a question for students is – did they have to proactively raise an access issue that should have been predictable and predicted?
OIA says that providers should have sought out students who were not engaging with online delivery, and those whom they knew may find it difficult because of their individual circumstances.
Some students such as those who had planned to study abroad or take up industry placements may have faced additional uncertainties. Providers may have needed need to give those students more support and advice, for example on accommodation and financial issues. A “rigid adherence” to regulations and processes is unlikely to have been fair: empathy and flexibility are key.
Communication
There are several aspects on communication with students – both collective and individual – in OIA’s guidance. These are important because when OIA looks at a complaint if these aspects – which are adapted from its best practice framework – have not been followed, OIA trends to take a dim view on its fairness and reasonableness tests.
It says:
- It has been essential for providers to work with their students to explain the practical constraints they are under.
- Providers have been expected to listen to and understand students’ concerns and try to resolve them.
- Clear communication was crucial as plans were made for this year and has been important as the national situation has continued to change and develop.
- Students should have been kept informed and been actively involved in resolving potential concerns and finding solutions.
Making choices
Students need to have felt, prior to enrolment, that they had a genuine and informed choice as to whether to go ahead this year. Here OIA largely repeats and summarises OfS’ guidance on consumer law and the information that students needed to make choices. As such it’s especially helpful for SUs in Wales where consumer law applies but OfS regulation doesn’t.
There are three crucial aspects. Students needed:
- To understand what changed and what they were to expect.
- Providers should have obtained the agreement of students if significant changes were being made to what was on offer.
- Providers should have explained to students what their options were if they did not accept the changes.
Deferral
Clearly some students might have wanted to pause and a major issue last summer was whether students were allowed to defer. OIA lays out some example reasons fo deferral:
- Because the way a students’ course was to be delivered had changed materially
- Because their personal circumstances had changed
- Because they were shielding or were very anxious
It says that providers should have considered requests for deferrals sympathetically and should have been ready to depart from their normal policy where it was reasonable to do so. What’s clear here is that OIA would not look kindly upon a blanket “no deferral” policy being deployed last summer.
Are all students consumers?
As you may know, a student who is studying for the purpose of their trade, business or profession may not fit the definition of “a consumer” in consumer protection legislation.
But OIA makes clear that its view, something that would be unlawful for students who are consumers under the legislation is likely to be unreasonable for those students who are not. So it effectively treats all students as eligible for protection when it makes its decisions.
Practical learning opportunities
In one case a student was awarded £5,000 in compensation because their placements had been cancelled.
Last March the provider stopped all clinical placements as a result of the coronavirus pandemic, and arranged for final year students who had reached the required level of competence to graduate early, but OIA said that the provider did not consider the impact of the lack of expected clinical placements on the student’s experience, and the significant disappointment and inconvenience this caused.
The case highlights how important promised practical components and experiences of courses are even if they do not count directly towards “learning outcomes” for a qualification. Students have the right to experience that which they were promised, and OIA appears to argue that this is especially true where some of the things not delivered might be considered to be particularly “valuable”. It also highlights how important to OIA it is that providers consider the consequences on students of any delivery shortfalls.
In another case students said they missed out on access to executive facilities (including meals that were covered by the fees), summer school activities, visits to businesses, and networking and career development opportunities. It confirms that learning and development activities and opportunities that might not have been “core” to the formal assessed programme matter to students too – and can be the subject of a formal complaint.
Alternatives have to have been available
In one case a student was in the second year of a three-year undergraduate programme. The student complained to their provider about disruption to their studies during the 2019-20 academic year resulting from industrial action and the Covid-19 pandemic. They weren’t assessed on what they missed, but the student argued that they’d nevertheless not been taught what they were promised.
That highlights the important difference between academic disadvantage and “learning” disadvantage. As the adjudicator Felicity Mitchell argues here:
Some providers appear to have done nothing to make up for lost teaching on the basis that there is no contractual obligation to provide a specific number of taught sessions. They have argued with some vigour that students have suffered no loss provided they are not academically disadvantaged. The logical conclusion of that line of argument is that it doesn’t matter what you have taught your students as long as they come out with a degree at the end of it.
We have taken the view that if a student is led to believe they will learn about a specific topic, then the provider cannot make up for failing to deliver that learning simply by not examining the student on it.
In many cases OIA uses a now established algorithm – it takes total fees, total contact hours, calculates the notional cost of the teaching hours missed, and then reduces the figures by 50% to take into account that higher education providers have to provide and maintain buildings, IT and library facilities, wellbeing and other student support and administration.
Shared facilities
In one case a group of students on a creative arts-based taught Masters course complained to their provider before the pandemic about timetabling issues, particularly in relation to guest lecturers and events, lack of access to facilities and equipment, and pressures created by a larger number of students being admitted on the course.
It demonstrates that students can complain about shared things like facilities or teachers, particularly in cases where (for example) seminar class sizes are exceptionally large, or studio or lab facilities are difficult to access because there are so many students around.
Can students demand in-person teaching?
Students don’t seem to have the right to in-person teaching even if promised it. In one case a student was unhappy that teaching moved online in March 2020 because of the nationwide lockdown. However they had not suggested that they had missed out on any learning as a result – and the provider said it had ensured that all the subject areas were covered, for example by offering podcasts, making tutors available during scheduled lecture times to answer questions, and holding online seminars. OIA didn’t uphold this part of the complaint.
Practical projects
It looks like students have the right to experience promised practical projects (especially if they’re “valuable” or if a student has moved home)
A student was on a one-year healthcare related Masters programme. The programme normally involved a lab-based practical research project. In March 2020 the provider moved all students to remote learning which meant students could not complete the lab-based project. The provider put in place an alternative research project and told students that, alternatively, they could request a leave of absence and return the following year to complete the practical project.
The student said they had missed out on the opportunities to develop a research project based on their own practical lab work, had not learned practical techniques that employers require, and would therefore be at a disadvantage when applying for jobs. The provider rejected the complaint because the move to online learning was unavoidable, and it said it had offered reasonable alternatives to students.
On this one OIA reckoned that the provider had taken a number of steps to try to ensure that students were not disadvantaged academically, could meet most of their learning outcomes, and could complete their qualification. However, on the question of the project it said that while a replacement data analysis project was an acceptable alternative for some students, it could not deliver the training in techniques or the experience of working as a lab-based researcher that had been promised and that were particularly important to this student.
And while some students might have been able to benefit from the opportunity to do the practical lab work at a later date, that was not a practical or affordable option for this student.
So the “reasonable alternative” was not reasonable from the perspective of the student.
In another case some practical aspects of a one year master’s were cancelled. A student had to complain even to get an offer that they be run when restrictions allowed (after completing the course) – but OIA noted that the student had had to return to their home country and obtain full-time work to support their family, so they were unable to benefit from the provider’s offer to deliver practical components at a later date.
In the end OIA stepped in and the provider agreed to waive the final instalment of the student’s tuition fees. Again, a student has to be able to actually take advantage of alternatives to practical components.
Students do have to complete uni procedures
A student complained to OIA about changes made to the third term of their first year as a result of the lockdown. The student had not complained to the provider because they believed a complaint would be rejected – OIA decided that the complaint was Not Eligible, because the student had not complained at all to the provider and it would not be fair for OIA to consider the complaint before the provider had a chance to resolve it.
