It’s fair to say that there has been a considerable amount of interest in our approach to complaints arising from the coronavirus pandemic.
The mainstream media has shown a lot of interest in students, often from two apparently conflicting angles: students are at the same time put upon and deserving and should be getting tuition and accommodation fee refunds, and feckless and partying and should be disciplined for causing spikes in local infection rates.
It’s likely that we will see complaints arising from both angles but so far we have received relatively few, almost all of which have been about the period following the initial lockdown back in March.
This period has been so challenging for everybody and throughout we have tried to give as much guidance as we can to students and providers, based on our experience of dealing with complaints about other disruptive events and our understanding of consumer law and Competition and Markets Authority (CMA) guidance, and the guidance from government and sector bodies that is available.
But one of the best ways to illustrate what we think good practice looks like and how we approach complaints is to give some real examples. It’s taken us a while to pull together some representative case summaries because of the time lag between students raising their complaints with their provider and bringing them to us.
We also wanted to wait until we had a good range, each illustrating a different point, so that people could see a more rounded picture – but the first batch of case summaries is now live.
A lot of complaints came to us too early. In some cases the student hadn’t complained to the provider at all and in others the student had tried to make a complaint but the provider had not engaged with it.
There have been some conflicting views circulating about whether it’s fair to expect students to go through the provider’s internal processes before complaining to us. We think it is. It’s generally better for everyone if providers have the opportunity to address students’ concerns first. But we have encouraged providers to think about streamlining their internal processes, especially where a number of students are raising similar issues.
We are thinking about how to do this ourselves and the current consultation on our proposed Rules for a new streamlined process for looking at large group complaints is part of this. We’ve always been able to look at group complaints from students raising the same issues but the new process aims to increase efficiency whilst maintaining fairness by reviewing large group complaints collectively.
We’ve tried to take a pragmatic approach to complaints that get to us too early. Where the student hadn’t made any attempt to complain to their provider, we haven’t accepted the complaint for review. We’ve given the student information about how to make a complaint to their provider.
But some students hadn’t been able to complete their provider’s internal processes because the provider had declined to engage with the complaint. In most of those cases we have decided that this wasn’t reasonable and referred the complaint back for the provider to consider.
In some cases the provider has given us enough information to reach a decision on the complaint ourselves. In other cases, we’ve asked the provider for the information so that we can look at the complaint because we are already looking at a related complaint from the same student, and it seemed sensible to deal with the related complaints together.
Meeting learning outcomes
Providers obviously had to act quickly to adapt teaching, learning and assessment when lockdown hit, to comply with public health advice and protect the health and safety of students, staff and the general public. We don’t underestimate how difficult it was to do that.
It’s to providers’ credit that so far we have not seen any cases where the student has been directly academically disadvantaged because of the disruption. Providers have worked hard to ensure that assessments are modified, deadlines are adjusted, and students know what they need to do to progress.
This means that (so far) the students who have complained to us have not been prevented from meeting the learning outcomes that the provider has set for them – they have not actually failed anything because they haven’t been taught the material.
But just as we saw in complaints about industrial action, some providers have done more than others to mitigate disruption to students’ learning opportunities. Some have managed to deliver something that is broadly equivalent to their usual arrangements, and some have not.
We have seen innovative examples of how providers have supported remote learning: recorded lectures, live seminars and interactive discussion sessions, flexible office hours, online group, practical and project work. In some cases, first year students are being allowed to join teaching sessions that they missed, in their second year. Library and other services have been made available online and providers have continued to offer support and wellbeing services, social events and even online outings.
This has worked better for some than for others at the provider level, course level, even at the module level. Some students have missed out on a significant chunk of their learning because subjects or topics that should have been delivered in person were not delivered at all. Where we think a student has missed out in this way and that the provider has not done enough to make up for what has been missed, we have recommended compensation.
When we have recommended compensation, our starting point has been the annual fees, the expected number of teaching hours, and the number of notional hours lost and not mitigated. We’ve taken into account the fact that students couldn’t access some facilities but that some facilities and services were still available to them. We’ve looked at these things in the round and made an assessment of what we think is fair in the circumstances.
Several providers have told students that they won’t consider requests for tuition fee refunds because their terms and conditions allow them to make changes to the course in the event of a pandemic.
We gave some guidance on exclusion clauses in our second briefing note on our approach to coronavirus complaints. Clauses that seek to allow a provider to exclude liability for changing or cancelling part or all of the programme are subject to the test of fairness under consumer legislation.
The CMA guidance indicates that terms allowing a provider a broad discretion to change significant aspects of course such as the course content should, amongst other things, be narrow in scope and effect, set out how the provider will deal with any changes that become necessary (for example taking all reasonable steps to minimise disruption to students), and give the student the ability to terminate their obligations where they are adversely affected by the change.
Some of the clauses we’ve seen allow the provider to cancel all or part of the programme without taking any steps to minimise the resulting disruption to its students or giving the student a corresponding right to terminate their obligations. We do not think that those clauses are fair – they would not meet the fairness tests outlined.
It’s just not the same
So far we have upheld complaints where the provider hasn’t properly engaged with the student’s concerns, or where the provider hasn’t done enough to make up for the disruption and deliver something broadly equivalent to its usual arrangements and what the student reasonably expected.
We have not upheld complaints where the student hasn’t identified any specific disadvantage, either an academic disadvantage, or something that they expected to learn that they missed out on.
We have not upheld complaints about periods where the provider stopped all teaching, as long as what was missed during that period was delivered in some form later on.
We have not upheld complaints where the provider acted reasonably and treated the student fairly, and took reasonable steps to minimise disruption so that the students could meet their learning outcomes and where what it delivered was broadly equivalent to its usual arrangements.
Of course this isn’t the end of the story. The complaints we have included in the summaries all relate to the 2019-20 academic year. It always takes a while for complaints to work their way through to us and students have 12 months to bring them.
We are currently considering some complaints about accommodation and the policy that providers put in place for refunds during 2019-20.
We’re just now starting to see some complaints come through about the current academic year. It’s likely that we’ll get complaints about accommodation during 2020-21 as well. We also think it’s likely that there will be more complaints than usual about academic and non-academic misconduct. We’ll be publishing some more case summaries next year.
One response to “Learning from the first wave of students’ Covid-19 complaints”
Universities legal teams should expect to be busy, there’s more actions being planned: https://goodlawproject.org/news/university-accommodation/