Pretty much every time Westminster universities minister Michelle Donelan talks about the pandemic, she reminds students that they can complain to their provider and then to the Office of the Independent Adjudicator if they feel the quality isn’t there. Even though they can’t.
Outgoing Welsh Education Minister Kirsty Williams tends to be more sparing in her use, although she can also be guilty of overselling the OIA’s magical powers from time to time. The other day she said in Plenary to the Senedd:
Undoubtedly, I understand that students will have concerns about the quality of the teaching that they have received this term as a result of Covid, especially where this term the majority of that has had to be delivered remotely… I have to say to date, we’re not seeing a huge amount of increase in complaints than we were in a usual year.“
That’s fine, but “we’re not seeing an increase in the types of complaints that students aren’t allowed to make” isn’t really the reassurance she thinks it is to be honest.
Nevertheless there are some things that students can complain about – and following part one in late November, we now have the second exciting instalment of OIA’s occasional series of pandemic related case summaries that seek to illustrate its approach to the issues it presents.
They’re not case law as such, but they’re the closest thing we have to it – because they give students and providers clues as to how OIA would treat future, similar complaints. And in many ways they reveal an unforgivable gap between the expectations being raised of what it might do, and the reality of its powers and decisions.
Housing a problem
Take accommodation, and the issue of having to pay for a room that students have been asked not to occupy. A particular Donelan favourite both last Spring and now is to argue that government has asked accommodation providers to make [rent rebate] decisions with students’ “best interests of students at heart”, to “welcome” that many universities and private accommodation providers have already offered rebates, and to remind students in university run or operated halls that the OIA can look at their complaint. But what happens when the rebate tap is turned off?
In one case last March a provider had sent students several messages in the run up to and immediately after the first national lockdown was announced, and OIA concluded that it was reasonable for the student to understand those messages to be an instruction to leave their accommodation and return home if they were able to do so. The provider decided not to ask any students to pay the third rent instalment when it became due in April, but refused to refund the amount the student had paid for the six-week period before that.
OIA found the complaint “not justified” for several reasons – the terms of the accommodation agreement didn’t permit the student to give notice to terminate (except in exceptional circumstances and by following a specific process), the accommodation was not completely closed (some students stayed), and the student had left their belongings in their room.
If you run that set of principles through, you can see how that decision harms the prospects of a lot of complaints that students might make right now. What OIA doesn’t say is how its understanding of consumer law and Competition and Markets Authority (CMA) guidance affected its decision – any student reading this, for example, might conclude that they ought to be entitled to a refund for all the weeks they weren’t in the property for.
But given that spectacularly unhelpfully, CMA has said zip all on student accommodation, you can’t blame OIA for having to make up its fairness as it goes along.
Outputs and outcomes
We know from its approach to industrial action complaints in the past that OIA likes to differentiate between academic disadvantage and “learning” disadvantage – in other words if a provider can’t teach something that a student was led to believe they’d be learning about, it’s not enough to simply not assess that thing. The academic output is as important as the academic outcome.
In one of the case studies, 14 hours of teaching had been missed during periods of industrial action where the provider had not put in place replacement sessions or alternative provision of the missed content – and even though it later offered the chance to sit in on replacements the following year, it was too late for some bits. Here OIA recommended compensation using its now near-famous algorithm:
Based on the notional cost of the teaching hours missed, reduced by 50%, taking into account that higher education providers have to provide and maintain buildings, IT and library facilities, wellbeing and other student support and administration.”
What’s interesting about the example is that when teaching moved online in March 2020 because of the nationwide lockdown, the provider 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. Although the student was unhappy about the move to online teaching, they had not suggested that they had missed out on any learning as a result – so OIA did not uphold that part of the student’s complaint.
Again, if you run that set of principles through, you can see how that decision harms the prospects of a lot of complaints that students might make right now. OIA doesn’t say if the provider’s contract gave it the legal ability to materially vary the delivery of the course from what had been offered (or what it thought of the contract) – but this does suggest to students unhappy with this year that they’d need to argue that replacements were inaccessible rather than just poor. The latter involves academic judgment, after all.
Where things look more hopeful for complaining students (and therefore challenging for providers) is anything practical. A student on a one-year healthcare Masters programme had a promised lab-based practical research project kaiboshed by Covid. The provider gave the student two options – an alternative project, or the chance to return the following year to complete the practical project.
The student (who took the alternative) argued that they had not learned practical techniques that employers require, and would therefore be at a disadvantage when applying for jobs.
And while the provider had taken steps to try to ensure that students were not disadvantaged academically, could meet most of their learning outcomes, and could complete their qualification, that wasn’t enough for OIA. It concluded that doing the practical lab work at a later date was not a practical or affordable option for the student, and although the student had achieved the qualification, their experience was not as valuable to them as they reasonably expected. £1,500 compensation for inconvenience and significant disappointment was awarded – with amazing, eye-watering implications if we read across the plight of PGRs this year.
In another case a final year international medical student had all their clinical placements cancelled in March when the pandemic struck. They argued that even though they were able to register with the General Medical Council, they hadn’t benefited from clinical experience that had been promised in the final year.
The provider tried to argue that although international students paid higher fees for clinical years, clinical placements were funded by the Health Education England (HEE) directly to NHS trusts, not through tuition fees. That argument buttered no parsnips with OIA – it decided that the experience fell well short of what could be reasonably expected and recommended that the provider pay the student £5,000 in compensation for the severe disappointment and inconvenience.
Where does all this leave students and providers? There’s a few things to note.
First, in all of these upheld or partially upheld cases, OIA recommends compensation rather than fee refunds per se. Providers that have been telling home undergraduate students that refunds would have to come off their loan balance and would therefore have little impact won’t want this secret getting out (or at least becoming clear).
For students led on by ministers into complaining about being charged for accommodation they’re being asked not to use or about not rating the “quality” of online teaching, there’s little prospect of success with OIA. The fact that neither CMA, OfS or HEFCW haven’t clarified for students what they believe students’ rights should be in these areas is shameful – but that’s hardly OIA’s fault.
There’s no news here on the “other half” of OIA’s algorithm. As a reminder, when it calcs up compensation for lost teaching, it counts the contact hours, divides the fees by the hours and then halves it because “providers have to provide and maintain buildings, IT and library facilities, wellbeing and other student support and administration”. We don’t yet know what will happen if and when a student makes a complaint focussed on some of the buildings, IT and library facilities, wellbeing and other student support and administration services they’ve missed out on that in many cases are harder to replace online.
As I said, where things get really crunchy is over this practical component stuff. Providers, it seems, can’t rely on bodging things so that students meet the learning outcomes without them – even if QAA says you can. Alternatives have to be actually provided, and it has to be actually possible for a student to take advantage of those alternatives. Whether the restriction relaxation arrangements in England and Wales make that meaningfully possible in every case remain to be seen – but anyone who’d made grand promises about practice placements, final year shows or significant practical projects ought to be nervous.
What remains unacceptable about it all is the extent to which that which are shared experiences will only result in compensation for complainants. The system is designed for individuals to raise rarities – but the (partially) upheld cases above clearly involved entire cohorts.
In an ideal world Donelan and Williams would now ask for honesty from providers about what can be done by the end of the year and arrange for compensation for cohorts where it can’t be. But it suits them to point at providers, it suits providers to point at government, and it’s students that don’t have the resilience and determination to see complaints out to the end that miss out the most.