Can students get a discount on their fees this year?

Are students entitled to fee refunds or discounts this year? David Palfreyman and Dennis Farrington assess the chances of a successful legal claim.

There has been much discussion in the media about whether students are entitled to discounts on, or partial refunds of, their 20/21 tuition fees given Covid disruption to the delivery of teaching, as well as to the wider campus experience.

It is even suggested that ambulance-chasing law firms are circling the campus in the hope of getting enough students signed up for a class-action – as has already happened at dozens of US universities.

It is arguable that, in returning to university during September 2020 after being duly notified of the potential changes to teaching delivery and campus life, the student has implicitly varied their existing “contract to educate” and as a consequence the student is probably now on weak ground to challenge the university. In some cases returning students may have signed and returned a notification of changes – making their acceptance of a variation explicit.

For new students, the contract again will have been varied from whatever were supposedly to be the terms as notified in the contract to admit.

Of course, the counter argument could be that the possible changes as indicated have been, as actually experienced so far, way beyond anything the student signed up for.

Let’s be reasonable

In employment law and in health and safety law, much is made of what the “reasonable” employer could and should do – in contract law the key word here is “substantial”, as in has the university delivered pretty well what the contract (as now varied with the hopefully express agreement of the student) promised in terms of there still being “substantial” performance – or as a leading contract text expresses it, without “substantial” failure (“Treitel on The Law of Contract”, 2020 15th edition).

As usual, a fundamental source of confusion and uncertainty arises from the fact that for decades the higher education industry has resisted the use of a standard clear, comprehensive, and fair contract to educate – see the discussion in our book The Law of Higher Education. See also our earlier Wonkhe piece on this area of refunds/discounts, force majeure clauses, etc.

And that contract should not be muddled up with an entirely separate accommodation contract which the student may have with the university – such muddling is taking place as students threaten rent strikes as allegedly justified in part by deficiencies in teaching delivery as well as denial of the full “student experience” as they are locked-down in halls.

It is to be hoped that soon the Office for Students will recommence its efforts to explore the possible imposition of a standardised contract to educate as interrupted by the Covid crisis over the past six months. (David Palfreyman is a member of the OfS Board but here writes in a purely personal capacity – Dennis Farrington has been calling for such a contract since the early 90s!)

What does the law say?

So, just what is said in consumer law which might relate to the student’s right to demand a discount/refund – and what is in contract law about “substantial” performance/failure?

First, the Consumer Rights Act 2015 – Chapter 4, Services. Here the university is the “trader” and the student is the “consumer” within a business-to-consumer, university-student contract to educate:

  • Section 49 – “the trader must perform the service with reasonable skill and care”.
  • Section 50 – a “change” to “any of the information” supplied about the contract as required by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 as “made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader”.
  • Section 54 – “If the service does not conform to the contract [as perhaps now bilaterally amended], the consumer’s rights… are – a) the right to require repeat performance… b) the right to a price reduction”.
  • Section 55 – The latter is triggered only if the trader can’t deliver the repeat performance “within a reasonable time and without significant inconvenience to the consumer” (unless doing so is “impossible” – and impossible means just that, not a bit inconvenient or a tad more costly for the university as the trader; as also in the Law Reform (Frustrated Contracts) Act 1943).
  • Section 56 – The “price reduction” is to be by “an appropriate amount” (including “a refund for anything already paid above the reduced amount”) and it must be made “without any undue delay”.

In addition, general contract law applies given that section 54 of the Consumer Rights Act 2015 states that the consumer is not prevented from “seeking other remedies for breach of a term… instead of or in addition to a remedy”. As such “other remedies” could include “claiming damages” or “seeking specific performance”. So, what of this concept of “substantial” performance/failure?

Has the alleged shortfall in performance – or the supposed failure in the degree of performance – by the university been such as to cause serious prejudice to the student, by way of the quality of the service or the quantum of its delivery – and so as in effect to deprive the student of “substantially the whole benefit”? We would suggest that this is unlikely.

Can any shortfall that is not “substantial” be more appropriately compensated for by the award of damages for breach of contract? And how can the court assess the loss within a fee of £9250 that covers the shift from the August promise of blended/hybrid teaching delivery, to the October/November entirely virtual delivery for part of a term/semester?

It may come down to questions like what was promised in the (fuzzy, thin, obscure) contract, what has changed, is that change significant, and has that change caused the student any measurable loss that needs to be compensated for.

Wider considerations

We would need to consider whether the business to student contract to educate ever promised the sort of wider student “experience” that has gone missing – as opposed to library, careers, mental health services still being accessible. Restricted access to specialist shared facilities may be more important on some courses.

Other issues include whether the timetable for the completion of the degree course remains on track – and whether professional bodies remove recognition of the degree on the basis that it has contained insufficient teaching of a specific kind so as to be validated as a qualifying degree for entry to said profession. Employers in some fields may also explicitly declare a cohort of graduates to be unemployable because they are deficient in some way. Can the student with the awarded furniture restoration degree restore furniture?

In any event, can the university be said to have been at fault, to have failed in some way to deliver the service with “reasonable skill and care” – bearing in mind that higher education still has a strong degree of immunity conferred by judicial deference to the proper exercise of academic judgement?. It is suggested that the student will find it hard to assert any breach.

In short, we do not see the student having much of a case against the university under either the CRA15 or in general contract law. But it all may yet become more a “simple” matter of politics than lawyers haggling over the application of the CRA15 and of the general principles of contract law – let alone an issue of morality.

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