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Fifteen reasons why students could complain over Covid – so their rights become much clearer

This article is more than 2 years old

Jim is an Associate Editor at Wonkhe

Over on the main site, we’ve set out the case for every student that feels dissatisfied about a provider’s action or lack of action, or about the standard of service provided by or on behalf of the provider, to make that heard via a complaint.

Here we’ve set out in some more detail the fifteen reasons why the basis on which making that complaint remains confused and unclear – but why making those (large group) complaints might flush out some much needed clarity both during and after the pandemic.

Context circles

Before we come to those, it’s worth asking whose job it might be to help. There are (at least in England) what I might call four external “circles of regulatory concern” here, which tend to overlap – but they’re not concentric, don’t map exactly and the different focuses can create confusions.

  • You have the Competition and Markets Authority, the key regulator for the enforcement of consumer protection law. It has issued guidance on how CPL impacts students and universities back in the middle of the last decade, and has done a bit of follow up on course change issues, but has lost interest since – and has barely said a word about universities and students during the pandemic – leaving the issues to be dealt with by OfS, despite the fact that OfS doesn’t cover housing or indeed the rest of the UK.
  • You have the Office for Students, which worries mainly about its (education and outcomes-based) regulatory objectives. It does think about consumer protection law insofar as it has a regulatory condition that requires providers to demonstrate they’ve thought about it, but it inevitably focuses on CPL from the perspective of teaching and assessment, and is not the body empowered to enforce breaches of consumer protection legislation – that power rests with the courts, the CMA and (bizarrely) local trading standards officers.
  • You have the Office of the Independent Adjudicator, which acts as an alternative dispute resolution service and takes into account consumer protection law in its decisions. But it’s also concerned more generally with concepts of fairness and reasonableness – and as a result can make decisions that aren’t about CPL, and in the absence of a clutch of case law, could be making decisions that are incompatible with it.
  • And then there’s the courts and local trading standards officers, neither of which have been troubled by anything other than a tiny handful of casework – and in case of trading standards don’t appear to have much idea that these are indeed contracts that they have jurisdiction over anyway. 

1. What can you complain about?

One of the biggest confusions surrounding complaints continues to be what a student can and can’t complain about. Ministers have spent a year saying that they expect universities to maintain the “quality, quantity and accessibility of tuition”, and that any student who is unhappy to that end should complain to their university, and if they remain unsatisfied, to the OIA – “which can lead and has led to fee refunds”.

But while OIA says it can look at complaints about what was promised and what was delivered (ie quantity), it can’t look at concerns that involve academic judgment “such as the quality of academic provision”. And university complaints procedures tend to reflect that prohibition.

OIA says that it draws the line between what it can and can’t look at as follows:

We 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, or the delivery method did not work for them; that a provider did not support its students adequately; or that the provider did not follow a reasonable assessment process.

It continues:

But an assessment of the quality of what has been delivered is likely to involve academic judgment, which we can’t look at. Academic judgment is not any judgment made by an academic; it is a judgment that is made about a matter where the opinion of an academic expert is essential. This means that we can’t look at a complaint that teaching was not of an adequate academic standard, or that an online teaching session was just not as good as it would have been face to face.

That makes some sense – but that does generate the “biology practical” problem highlighted by Bristol SU’s David Ion on the site:

Imagine you’re a student studying Biology. You think your online practicals haven’t been worth the money – you think watching people do a practical is nothing like as useful or valuable as doing it yourself, and some of what you’ve had are YouTube videos that you could get for free anyway.”

The point is that the way in which something is delivered is surely an aspect both of consumer expectations and of academic quality. So if your main beef is that what’s been delivered online isn’t good enough, will that be treated as a potential “broken promise” issue (which could be considered), or an academic quality issue (which couldn’t)?

If we can’t say with clarity whether a student is or isn’t entitled to complain on this basis, SUs could err on the side of caution and encourage them to do so anyway.

2. She’s nicked me slot

There are related issues. Imagine synchronous hours have been halved on taught humanities courses this year and your online seminars have sixty people in them, robbing you of any meaningful opportunity to participate.

If the university’s website says this:

Seminars are usually smaller than lectures, typically with groups of up to thirty students. They’re usually less formal than lectures, and provide you with opportunities to ask questions and debate themes and ideas. Seminars give you the chance to develop skills like communication and presentation and help you to build your confidence in speaking to an audience.”

…is what you’re experiencing this year a quantity/accessibility issue or an “academic judgement” issue?

And let’s not imagine that those that have regained access to their library, lab or studio are now in the “no complaint zone”. In all of these cases, the extent to which there has been a resumption of access is limited by a lack of capacity or slots that may be different to that which they promised, that which they might have reasonably expected and that which they need to succeed or do at least their best.

If students are unhappy with the level of access they’ve had to that which is shared, they could therefore raise it formally.

3. You say quality, but…

It’s worth remembering that the “quality” prohibition is only really something that’s emerged over the years. The legislation that created the OIA and its scheme rules talked about “academic judgement” to stop students from being able to complain about their results. But it necessarily has a broader use, insofar as to make sense it has to describe both examining and grading students, and the setting and teaching of the syllabus that is assessed.

HE legal expert David Palyfreyman discusses the issue here, and wonders whether the “cloak of immunity” can survive when that kind of professional judgement immunity has been removed by the courts for all other professions.

The bind that OIA has here is as follows. First, OIA says that it could look at what the provider had done to check the quality of the provision – in other words, when it says it has used its quality assurance systems in order to safely rely on “academic judgement”. On the one hand, lots of providers would struggle this year to argue they have used robust systems to quality-assure what has amounted to a giant delivery pilot that has been much easier to characterise by the effort underpinning it than the attainment. Providers might say “well, we followed QAA guidance”, but would that be enough?

And anyway, how on earth would students know that they could challenge a provider’s dismissal of a complaint on the basis of academic judgement by asking to see how the programme had been quality assured?

On the pilot issue, all consumers who are being provided with a service have the right to have it carried out with reasonable care and skill. But teaching online is hard, and new, and many didn’t get the right training or practice or kit to do it well. So is max effort but poorly delivered teaching in a pandemic “reasonable care and skill”, or “unreasonable care and skill”, and is deciding whether it is or not a matter of untouchable academic judgement?

Generally, ministers, OfS and OIA have all intimated that they believe that pivoting to online delivery is “reasonable” during a pandemic. They may be right. But we don’t know if the courts would agree. And given OIA is supposed to take into account consumer protection law when making its decision, it’s stuck in a tension between its tendency toward reasonableness and uncertainty as to how the courts would view it.

So any student worried about the quality of the provision they’ve experienced this year could raise their own judgement of quality, but should ask how the provider has reached that judgement of quality.

4. Skill and care

The ultimate consumer protection law right is that services and carried out with reasonable skill and care. But despite herculean efforts, and without any apportioning blame on academic staff, plenty of students would argue that the teaching and support they have received has not been delivered with reasonable care and skill. That’s largely because the year has been a long and giant experiment/pilot.

So any student worried about the quality of the provision they’ve experienced this year could also raise concerns about the extent to which a provider has delivered with reasonable skill and care.

5. Active and enthusiastic consent

In the first part of the pandemic, the working assumption was that as long as what was delivered was reasonably equivalent, a complaint could be dismissed. The basis for that was that most university-student contracts contained a so-called “force majeure” clause, which allow changes to be made when things happen outside of an organisation’s control. The government even made reference to this in its impact assessment of the Coronavirus Act 2020:

Where there are concerns to protect HEPs from being sued for reneging on their consumer protection (and/or contractual) obligations in the event of course closure we believe force majeure would be relevant.

But in Part 2 – effectively from the start of this academic year – both OfS and OIA issued guidance indicating that they no longer believed that such a clause would apply, because universities had the chance to warn students about changes and obtain consent for them. The question is about that consent.

Most providers took the mere act of (re)enrolling as a signal that students accepted the new and revised package – but there are open questions as to whether students realised that that was what they were doing, whether they felty reasonably warned, and whether the options available to them if they didn’t agree were clear (or had to be). It certainly doesn’t feel like students realise they gave their consent – but maybe only the courts can tell us whether the process that was gone through to obtain it was fair.

So any student that doesn’t feel that their consent was obtained, enthusiastically, they could raise it.

6. Out(side) of (our) control

Related to all that is another question that compares what students are saying on social media with the theoretical realities. In theory force majeure clauses shouldn’t give a provider too much power to vary or not deliver a contract and clauses to that end become null if they do. The killer question is therefore – did universities provide enough information to the student signing on the enrolment line?

OfS said that:

Students will need to understand what a provider is committing to deliver in normal circumstances and in different scenarios, how this will be achieved, and the changes that might need to be made in response to changing public health advice. Sufficient information needs to be provided to allow prospective students to make an informed decision about whether they are willing to start a course and accept those possible adjustments or whether they would prefer to defer until the provider is able to deliver the course as normal, or whether they might choose a different course or different provider.

But the reality in most providers is that students were told the year would be blended, and universities would follow Public Health Advice. In other words, there’s both question marks over the scenario-predictability of the pandemic, and the amount of information (taking into account scenarios like “6 months of lockdown where you can’t come back to campus”) that was given to students about the implications of those scenarios.

And more importantly, there’s the prospect that just saying “we did say we’d have to follow Public Health advice” as a way to dismiss a complaint about the spring term in and of itself represents a new and unlawful force majeure clause that gave a university too much power to vary its provision. Which? says:

Consumers need to understand and be able to foresee prior to signing a contract when the terms of that contract may change. Simply providing advance notice of changes will not guarantee the contract is fair, nor will a right to terminate a contract in the event of a change if that is not practical in the circumstances. Similarly, a term providing a remedy in the event of a variation is more likely to be fair where the remedy is sufficient to ameliorate the impact of the change.

Again, what OfS decides to regulate on and what OIA argues is reasonable may not match what CMA would say if it could be bothered, and what the courts would say if a case got there.

So in any event if students think their provider has grabbed too much chance to change things (and not make redress promises to make up for them), they could raise them.

7. Variation and cancellation

Think back to last August. For both incoming and continuing students, the CMA says that where circumstances could prevent the supply of services agreed (or a version of them that the student has indicated is acceptable) then fairness is likely to require that the student should have a “genuine right” to cancel the contract. To allow genuine freedom to end the contract, a term must not confer just a formal cancellation right, but one that is capable of being exercised freely.

The student should not be left worse off for having entered the contract, whether by experiencing financial loss or serious inconvenience, or any other adverse consequences. Factors relevant to the genuineness of a right to cancel are likely to include whether the student was given sufficient notice of the alteration, and any practical difficulties in finding an alternative supplier.

The key ruling in a case about german gas was as follows:

That would not be the case if, for reasons connected with the method of exercise of the right of termination or the conditions of the market concerned, the consumer has no real possibility of changing supplier, or if he has not been informed suitably in good time of the forthcoming change, thus depriving him of the possibility of checking how it is calculated and, if appropriate, of changing supplier. Account must be taken in particular of whether the market concerned is competitive, the possible cost to the consumer of terminating the contract, the time between the notification and the coming into force of the new tariffs, the information provided at the time of that communication, and the cost to be borne and the time taken to change supplier.

Given when students were informed of changes last summer and the ease with which they would have been able to then switch, it feels unlikely that the right to cancel was capable of being exercised freely – particularly if (for example) if they were already tied into rental accommodation contracts and would have found it difficult to switch.

So students that felt they had no choice but to re-enrol could complain.

8. You only get what you pay for

…goes the old saying, but what is it that students are paying for? There are lots of answers to that question – but let me suggest that three have been in dominant use throughout the pandemic.

  1. The first is that you’re paying for the “learning outcomes” and that these haven’t been affected, or at least students have still been able to obtain them. OIA has tended to disagree here over strike complaints – partly because you need to be able to pay full price and fail, and partly because OIA has consistently argued that students enrol for “l;earning experiences” as well as outcomes from those experiences. It hasn’t, however, stopped lots of senior people using the argument in meetings with students and their unions.
  2. The second is that you’re paying for the “course” generally, and the “teaching and assessment” specifically. Let’s assume that “teaching” includes things like academic support services and dissertation supervision. This is effectively the focus of CMA guidance and OfS guidance last summer, both of which interpret and give examples of consumer protection law’s “material information” about a course (the information that the consumer needs to make an informed decision) as being things like what a course will cover and where it will be delivered.
  3. The third is more of a popular imagination thing – the “student experience”. The trouble is that that includes all sorts of things a student probably can’t complain about, in the same way that someone on a two week holiday to Magaluf can’t complain about the weather.

My best guess is that in fact, the student is “sold” something in between 2 and 3 above. It suits the sector to talk about teaching and assessment, because that’s mostly been moved online. But students were clearly “sold” facilities and services that are not specifically about the course at all.

Yet DfE, OfS and even OIA all focus in on “course” – and as a result don’t make clear to students that the rest really matters, potentially:

The pandemic has inevitably resulted in changes to how courses are delivered. If your provider has offered you different but broadly equivalent teaching and assessment opportunities in a way that you could access, it is not likely that you will get a fee refund for that.

What we don’t know is whether, if a university-student contract similarly honed in on course characteristics, a court would agree that these wider things that students are wheeled around on open days do matter, and are an implied part of the contract – and if they are, how much that matters in the overall scheme of things.

So if students feel they’ve missed out on things, they could set them out so that issue can be handled properly.

9. We’d go bankrupt if we gave everyone a fee rebate

I don’t know whether there’s a VC that has said that specific sentence out loud to an SU officer or not – but it feels like that that’s an aspect of the sector’s position. That’s interesting because last year when thinking about nurseries, CMA issued the following guidance:

The CMA is aware of examples where early years settings have expressed their fears to parents that their service will not continue unless full (or substantially full) payments are continued to be met. Such a request may infringe a specific prohibition in consumer law that a trader must not require a consumer to buy a service on the basis that – should they not do so – the trader’s business or livelihood is at risk.”

Some students would argue that the long and tall of the message they’d had from the sector has been “I know it’s not been what you expected but we’d be bust if you all had a refund”, but would the courts interpret that message the same way that CMA does above?

So if students have heard that argument, they could raise it – so we have clarity on it for the future.

10. Part payment for a package?

Last summer, CMA put out generic guidance out on consumer contracts, cancellation and refunds during the pandemic that looked specifically at the provision of ongoing services:

Where a consumer receives regular services in exchange for a regular payment as part of an ongoing contract, the CMA considers that consumers will normally be entitled to a refund for any services they have already paid for but that are not provided by the business or which the consumer is not allowed to use because of lockdown laws (this may be a partial refund of the total amount the consumer has already paid, to reflect the value of the services already provided); consumers will normally be entitled to withhold payment for services that are not provided by the business or which the consumer is not allowed to use because of lockdown laws; a business may be able to require the consumer to make a small contribution to its costs until the provision of the service is resumed, but only where the contract terms set this out clearly and fairly and the consumer is free to end the contract if they do not wish to pay these fees.

Big questions arise from all of that. If the fee a student pays is for a package of services, some of which can’t be delivered (see issue 5 above), a way to read that CMA guidance is that they shouldn’t be paying in full and could even withhold payment for rather than try to recover later.

Would the courts agree? OfS has nothing to say on this but OIA has tended to use a sort of magic calculator in the past to cost up lost teaching, where it takes the fee a student pays, splits it in half (because half is for all the things other than teaching) and divides that half by the number of hours “lost”.

Would it do something like that over lost services and facilities? What if universities have threatened expulsion or even deportation over part withholding of fees? Why can’t home undergrads ask the SLC to withhold payment in part?

Students who feel they ought to be entitled to a part refund on this basis could raise it so we all know how this should work in the future.

11. Panic and planning underneath the surface

Last summer, behind the scenes, there was a lot of planning going on and a lot of panic that students might not enrol. If the government’s pact with the sector was “your bailout will be your enrolments”, the pressure to paint a pretty picture was significant – but has led to students wondering if they were treated honestly in the run up to the autumn term.

Under the Consumer Protection from Unfair Trading Regulations, organisations are not allowed to use misleading actions to get us to sign contracts. So in the context of a degree course, it could be a misleading action if the course was described as having particular core attributes which were in fact not the case. There are specific rights to financial redress under the regulations if a student has been the victim of misleading actions.

Misleading omissions are also banned under the Consumer Protection from Unfair Trading Regulations, where a company or organisation can’t hide or leave out information which would lead someone to change their mind about signing a contract. Which? says that might include being told about the headline cost of a course before sign up, but not being told about other fees or charges that someone would have to pay. You can’t claim financial redress for misleading omissions.

I don’t know whether the uncertainty, panic and paddling under the surface last summer as people scrambled to put out information (and weighed up whether they really needed to share the worst scenarios) would count as a misleading omission or a misleading action. What would the courts say if they saw all the minutes or watched back the Zoom recordings?

What we do know is that students feel misled – so they could raise it.

12. Hidden costs

What if students have faced additional costs of participation that they weren’t warned about (but could reasonably have been expected to be warned about) like broadband, or software – or even hardware arising out of the transfer of the costs of campuses into people’s homes?

And there’s another issue too. We assume that universities aren’t on the hook for rent – but students can claim damages for breach of contract as well as remedies like refunds and “repeat performance”. The general rule is that damages should seek to place the student in the same position as if the contract had been performed, which would normally entitle students to any losses (including consequential losses like, say, renting a property they didn’t need) that are caused by the breach of contract, that were reasonably foreseeable at the time the contract was entered into, and that could not have been avoided by the student taking reasonable steps to mitigate their losses.

Would the courts regard costs like rent as consequential? If they did, was the lockdown reasonably foreseeable by the student when they took out the rental contract? Who knows.

But any student that has faced extra unanticipated costs that haven’t been reimbursed by DfE’s magic money twigs should could make the issue formal.

13. Damages for disappointment

Where a major or important object of the contract is pleasure, relaxation, peace of mind or “freedom from non-molestation”, it is potentially arguable that “disappointment” from breach of contract can result in damages.

If that all sounds a bit off, do check out the Rycotewood case, in which students got damages partly because:

These claimants did not have the pleasant and agreeable time that they had hoped for and legitimately expected at Rycotewood, and that for much of their time they were annoyed, anxious, angry, frustrated and disappointed that the course was not providing what it should have provided”.

At the risk of retrofitting my paraphrasing, I think it’s fair to say that social media tells me that students have not had the pleasant and agreeable time that they had hoped for and legitimately expected at university this year, and that for much of their time they were annoyed, anxious, angry, frustrated and disappointed that the experience was not providing what it should have provided.

And you know what’s amazing about that? I think I’ve heard ministers, mission groups and VCs all basically say versions of that statement out loud too. So imagine – just imagine – what would happen if the courts agreed that the miserable year students have had would very much count here in the “pleasure, relaxation, peace of mind or freedom from non-molestation” damages arena!

Any student who’s not had the pleasant and agreeable time that they had hoped for and legitimately expected at university could raise, it formally.

14. Equality acts

As well as consumer protection law, there’s important equality legislation to consider in detail. All the way through OfS has stressed that all providers should consider how their approaches to any lockdowns will affect all students, and in particular those who might be most vulnerable to disruption. Last summer it said that that included students suffering from coronavirus or who need to self-isolate, international students, and students unable or less able to access or effectively engage in remote learning for whatever reason, together with care leavers, those estranged from their families, and students with disabilities.

The lazy assumption is that the pandemic has been godsend for disabled students, and while that’s true for some it’s also true that it’s been a complete nightmare for others. The duty both to anticipate and make reasonable adjustments simply hasn’t been met in many cases. The question, then, is the extent to which any access failures represented adjustments that were reasonable to expect generally, reasonable to expect during a global pandemic and advice that came (mostly) late and should have been anticipated.

If students don’t raise these things formally, we may never know.

15. And finally

One final one. For any provider that offers distance learning versions of some of their current courses that has been extracting full fees for the in-person version, it’s hard to see how that’s justifiable even if it is legal. If the state decides that it’s happy to continue to put its subsidy in then fair enough – but surely students ought to be able to expect some recompense for this one?

Again, students should raise it formally if they feel it, so we know how to address those sorts of issues in the future.

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