On 17 April the Guardian published a letter from a firm of solicitors touting for students to join an “action group”.
The plan was to launch a group “compensation” claim for “lost teaching time”, with a promise that there would be no financial risk to the students.
The Law Society Gazette published an article stating that the firm says it is seeking the support of a litigation funder for the claim. It is hard not to agree with more than one of the comments under that article that this is “grubby”.
The Law Society article also mentions another firm: planning to act against the universities involved for breach of contract and under the Consumer Rights Act over missed teaching time. This firm has made its name in the personal injury and medical negligence claims. Claims of this type have given rise to the expression “ambulance-chasing” and their rapid increase saw a crackdown on “whiplash” claims. The firm has announced that it has already been instructed to pursue a student compensation claim, naming one student and inviting others to “sign up”.
On 24 April the first firm announced that it had over 1,000 signatures, which triggered the number needed to apply for a Group Litigation Order. Press coverage reported that the claim was now underway but the application for a GLO requires the definition of the “common or related issues of fact or law” which arise, and that is likely to involve much preliminary determination by the court, as explained elsewhere today on Wonkhe.
There are the many questions about how – if it is successful – a refund could actually be managed. Student loans are paid directly to the provider by the Student Loans Company (SLC). Would any refund to a student sent from an institution be sent on to the SLC in order to reduce the loan by that amount? What would happen to the interest already accrued on the loan? That interest would have grown during the years litigation could potentially take. Considering past performance, would the SLC get the sums right in every case? The solicitors orchestrating the claim have been quoted as envisaging a flat sum for all students who say they have been affected if the claim succeeds, but students have been making it clear that their loss of teaching is varied in quantity and in distribution across their courses. And it does not seem clear how the consumer rights of a student articulated by the Competition and Markets Authority (CMA) might be handled by the courts as a group, not an individual claim.
Rights and responsibilities
These planned actions – and there will surely be more firms jumping on this bandwagon – are to be for breach of contract. If they go ahead they are likely to provide useful clarification at a number of levels, not least with respect to the expectation that student “learning” involves more than passively receiving teaching which is “provided” in promised quantities – as explained previously on Wonkhe.
Learning for sale
The most fundamental question is whether the student contract is a standard consumer contract at all, that is, a deal in which something is sold and something is bought and paid for. I was one of those invited to the “roundtable” discussions when the CMA was framing its “advice” on the fairness of the terms of student contracts. This was published in March 2015 and followed up by compliance checks but became a “case closed” in February 2017. This CMA decision was taken as it became clear that “compliance” checks on even a few universities were taking a long time.
I remember well the discussion of the practical difficulties of framing student contract terms that “potentially allow” providers “discretion to vary fees or course content and/or withdraw courses”, but not to an extent that would make them unlawful. The CMA’s lawyers had to grapple with the reality that buying a well-made sofa may give you a done deal, but buying a degree course cannot in practice be treated in the same way.
Relatedly, the Siddiqui case against the University of Oxford failed in February 2018. The claimant had tried to insist that his poor performance in a key paper was due to:
“negligently inadequate teaching (teaching which also breached the relevant standard of care in the contract between the Defendant and him to provide teaching to him in his chosen subject)”.
The court disagreed.
The forthcoming claims are going to be alleging that where lectures were not given because of strike action, it is the quantity rather than the quality of the teaching which entitles the student to compensation. But the judge in the Siddiqui case concluded with a warning that although students are incurring substantial debts to pursue their university education, and there may be some rare cases where some claim for compensation for the inadequacy of the tuition provided may succeed, litigation is costly, time- and emotion-consuming, and runs significant risk of failure. The problem, he stressed, will be to establish a causative link with any alleged “injury”.
The new sheriff
Some universities may be preparing a defence to which the Office for Students (OfS) has perhaps been alerting them unawares. The OfS has published guidance for students encouraging them to take action (at least internally) if they feel aggrieved over lost teaching: “You may be able to submit a claim for this to be taken into account” in forthcoming examinations, it helpfully suggests.
But the OfS has also published a blog on learning analytics. This urges providers to track student activity electronically for their own good so that any problems they encounter can be picked up promptly by the provider and support offered. This will give the provider a record of an individual’s actual attendance at lectures or active use of available “contact hours”. So a student who has been recorded as missing “learning opportunities” could be hard-put to show that missed teaching allegedly leading to poor performance could be put down to a few days of lecturer strikes. There are even excitable blockchain aficionados wishing to log every contact hour, as explained on Wonkhe.
Digital tracking of student activity can count only what can be counted and denigrates the complexities of the satisfactory educational relationship which should really be the core of the “student experience”. But, for the purposes of reigning-in a rush to student compensation claims, it may have its place.
It might also assist the Department for Education (DfE) in making the “estimate … of the number of students whose classes have been cancelled” called for in a 19 April Parliamentary Question, with the admission that the DfE had made none as yet.
Update: This article was amended on 9/05/18 to correct the reference to the content of an article on The Law Society Gazette.