Jim is an Associate Editor at Wonkhe

For much of the year student representative organisations – both national and local, formal and informal – have variously been campaigning for types of compensation, rebates and refunds from the four governments.

It feels like every week brings a new student-led campaign group calling for more or less the same thing. This new one based out of Bristol University (“Write Off, Right Now – WORN”) is fun, partly because it encouraged students across the country to “take over” social media to spread the message, and partly because they look like they’ve got a jaunty new single out next Friday.

Student and WORN campaign leader Lianna Denwood said it was time for the government to “take ownership” of the situation and recognise students “haven’t been provided with the education they were sold”. Campaign vice president Scott Weavers said it was “morally unfair” for students to have to pay their full fees when education in lockdown had been limited to “inadequate zoom lectures”:

We were promised when we signed up for university that we would receive sufficient access to facilities, course equipment and social contact to help us achieve our degrees. This year we have acquired anything but that standard, and yet we’re still expected to pay full price.”

It may be morally unfair Scott, but politically it’s not going to happen. If the Budget was the final nail in the coffin of that hope, the debate in Parliament following the May 17th announcement was the funeral. A Westminster government that can only be bothered to find £15m for student hardship for this term isn’t going to stump up the vast and expensive structural solution students want unless it really has to.

What if I could change the path of time

That leaves students’ unions in particular in a bit of quandary, because the anger and dissatisfaction has to go somewhere. If SUs point it towards universities, encouraging a raft of local rent strikes, complaints and refund claims, they run the risk of both falling out with their local university and shooting future students in the foot – because if successful, funding the redress will come from budgets for future students

On the other hand, pointing it at government looks both exhausting and exhausted as a tactic. Students can’t make a formal complaint about the government until the next election, are still in full-on “where’s my refund” mode, and it’s a reasonable bet that the only circumstances in which governments would fund universities to fund claims is if they were made en masse, and were largely successful.

It’s why, for those in England and Wales, the confirmation that the Office of the Independent Adjudicator will go ahead with a change to its scheme rules to process Large Group Complaints is so intriguing – because it vastly reduces the opportunity costs of taking part for an individual student. OIA thinks that it’s unlikely that single, shared complaints involving hundreds of students is “the kind of situation that will occur very often” – but what if it’s wrong?

Complaints are not only useful information (both locally and nationally), but are also:

expressions of dissatisfaction by one or more students about a provider’s action or lack of action, or about the standard of service provided by or on behalf of the provider”

Surely if there is indeed lots of shared dissatisfaction, that deserves to be heard? If so many of them are still unhappy, don’t we all have a duty to encourage students to express that formally?

Even Universities UK says the answer is to complain:

All universities have complaints procedures which should be students’ first port of call where they do have concerns. Students can also contact the OIA if their complaint remains unresolved.”

What if we aimed to stop the alarms

The question is whether the experiences faced by students would count as “shared” enough for a “large group complaint” to fly at departmental or even institutional level. Bristol SU, along with twenty other SUs, has written to the Competition and Markets Authority to argue that most students have lost key parts of their educational experience and many having been sold a promise of “blended learning” that has not been delivered:

Almost all students have experienced a diminished experience in comparison to that which was originally promised and advertised to them. Most have been denied access to campus facilities and services, many have had practical material components of their course removed or dramatically changed, and hundreds of thousands of them have been asked by the government to not return to campus accommodation that they are still being charged for. None, that we are aware of, have actively consented to the changes that have been made to the educational offer from their higher education or accommodation providers, and we are not aware of any systemic rebates or refunds for students outside of the university-run accommodation sector.

Whether you believe in students as “consumers” or not, most of us agree that universities ought to keep their promises to students. It’s how far that principle stretches during Covid that matters – and there’s a couple of killer opening gambit questions in this note from Which? that don’t half focus the mind when you look at the renewed calls from students for fee rebates and compensation:

Is your university or course provider trying to deliver your course in a way that’s different to what was promised in your contract? If so, they may be breaching the contract and you can seek redress.

Is there a term in your contract that allows your university or course provider to make major changes to your course? If so, this contract term might be unfair under the Unfair Terms in Consumer Contracts Regulations.

Answering these questions was hard when Which? published that note years ago, but they are much harder over Covid. It says that consumers should be treated fairly by universities, and not misled about their rights. Yet on several aspects of the “student consumer” relationship, it’s really hard to work out what students’ rights really are.

In other words, while the opportunity and process to complain is actually fairly clear, it’s still really hard to discern the basis on which you might make a successful complaint or claim. As that letter puts it:

Our members are telling us that while they understand the process they might go through to make a complaint, they are not clear on the basis upon which a complaint might be justified.

In England, the advice that’s out there in a Covid context is almost all provider-focussed, and promised guidance from the OfS-led “Consumer Benefit Forum” never materialised despite being promised back in November 2020:

The forum is currently working on new ways of making students aware of their rights and raising awareness about providers’ internal complaints processes, how students can access these and what the process entails.

In Wales all we’ve seen is summary guidance and “nothing to see here” assertions from the boss of the funding council, and unless we’ve missed it, nothing at all in Scotland or Northern Ireland.

CMA says that this is a complex area legally and that it has published its view on refunds, which explains how it thinks the law applies:

We know that this is not straightforward but students can refer to this statement when talking to their accommodation providers or universities.

But that’s generic advice, and it’s difficult to discern how it actually applies to students or universities.

What if we would open up the doors

So setting aside the ideological objections to students as consumers, and the wider questions of how refunds or compensation would be paid for, I’ve compiled my top fourteen examples of what look like shared problems – a sort of compilation of many of the bits and bobs I’ve written about on the site over the past year that students are saying they are unhappy about institution-wide where the basis of a complaint might be unclear – all in pursuit of understanding them and considering how we might address them.

  1. We don’t know what students can complain about. Ministers say students should complain if they feel they’re not getting “quality”, “quantity” or “access”, but OIA says you can’t complain about “quality” because that involved “academic judgement”.
  2. Much of what is put out to students stresses the content of teaching – but much of what students are upset about relates to restricted access to that which is shared. Even if studio-based students are back in, is an hour a week enough?
  3. We’re told that universities can rely on dismissing a complaint about quality if they can demonstrate how they’ve reached that (academic) judgement – but how would one do that in the chaos of Covid?
  4. Despite herculean efforts, and without any 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, a legal right in any consumer contract. What’s reasonable in a pandemic?
  5. When students (re)enrolled in September, they basically gave consent for lots of changes to be made to their courses because of Covid. But did they know what they were doing, were the alternatives sufficiently clear, and was that consent given enthusiastically?
  6. Most of them also signed up their provider having to make further changes if public health advice dictated so. But were clauses like that unfair – did they give providers too much power to change things without appropriate redress?
  7. In theory, unis making changes had to give students a “genuine right” to cancel – students not left worse off or seriously inconvenienced, given sufficient notice, and not left with any practical difficulties in finding an alternative supplier. As such it doesn’t feel like there was a genuine right to cancel – but would the courts agree and would other financial remedies should apply?
  8. What is the fee for? Is it the teaching and assessment on the course, access to wider physical facilities and services, or even the wider student experience? Unless we know the scope we don’t know what students can complain about.
  9. The consumer regulator says the law means providers can’t pressure consumers by saying “pay up or we’ll go bankrupt”, but it does feel like that’s the message students have been getting this year. If they’re not allowed to say that, shouldn’t students raise it?
  10. If the tuition fee pays for a package of things that have only been part-delivered, do students have the right to a proportional rebate for the aspects they’ve not experienced?
  11. Consumer protection law protects us from being misled – both by omission and by what’s proactively said in advance. Students feel misled this year – but is that inevitable in a pandemic or should the sector have warned them more explicitly?
  12. The costs of taking part in a service on offer are supposed to be clear upfront – but plenty of students have forked out extra for software, laptops and even heat and light at home. Do they have the right to any of that back?
  13. Consumer case law says that where a major or important object of a contract is pleasure, relaxation, peace of mind or “freedom from non-molestation”, it is arguable that “disappointment” from breach of contract can result in damages. Does it here?
  14. Where students have been unable to access what’s been on offer this year – especially if they are disabled students – was the issue put right, and why wasn’t it anticipated as the law suggests it should have been?
  15. And where providers are running distance learning versions of courses for a different price – is it sustainable to maintain the higher price for “in-person” given the year we’ve had?

What if we could help each other more

There’s a couple of ways to look at this “basis” problem. One would be to say “that’s confusing, and it’s important that the grown-ups clarify for students what their rights are so they know whether to make the effort to complain”. But because no one shows much sign of wanting to answer the questions with clarity – and because students are still upset – it looks like large group complaints are all that’s left.

That need not be seen in a negative light. Even if students now have a low chance of obtaining formal financial redress from their provider for the year they’ve had, in England and Wales OIA, OfS and DfE will see, feel, touch and taste the level of ongoing unhappiness from students systematically through a series of (very) large group complaints – and if nothing else that gives OIA the chance to produce sensible recommendations for the future like it did over GSM London.

In other words, if it’s the case that students feel aggrieved, they should raise it. If they feel the “quality“ isn’t there and they don’t know if it’s the kind of quality they can complain about, they should say so in a large group complaint. And so on. Universities will set out their view, OIA will give us all a sense of what’s reasonable, it’ll need to interpret and anticipate some of the legal questions in the process, and it’ll end up telling DfE and OfS where the issues and guidance is unhelpful or unfit for purpose, both in a Covid and a wider post-pandemic context.

If nothing else, most of the questions above appear to apply to other sorts of massive disruption, and there’s a serious prospect of mass industrial action across the sector in the near future.

So yes, students should launch mass complaints. OIA’s new rules mean that it need not clog up university complaints handling processes unnecessarily. And crucially, students will feel heard – which would surely be a much better place to be than where we are now, hoping that the dissatisfaction will go away when they go away. The marmalade has to go somewhere.

2 responses to “How should students express their dissatisfaction now?

  1. Ironically, the CMA yesterday published a self-congratulatory report which “shows how concurrency arrangements with other regulators have helped deliver benefits for consumers over the past year”.

  2. The root problem is the vagueness of the supposed U-S contract. Since 1982 Dennis Farrington has argued that there needs to be a national standardised fair and comprehensive contract – a suggestion that in Farrington & Palfreyman on The Law of Higher Education we repeated for the 2006, 2012, and now the 2021 edition. Without such it is hard to see just what was ‘promised’ as ‘the student experience’ – as we explore in para 12.115 (pages 537-544) in terms of fee waivers, refunds, rebates in the context of the Consumer Rights Act 2015 and the role of the OIA. It is this same lack of contractual clarity that is seeing the many class-action claims launched last year by aggrieved students in the USA being ‘tossed’ by the courts in various States – the U did not explicitly promise anything more than appropriate teaching (not necessarily F2F) and then fair examination/assessment procedures such as to provide the opportunity to earn the degree. The NUS could focus on demanding what Dennis has called for over the past thirty years so that in future its members are not left with such uncertainty as to just what £9250;’buys’.

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