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Pandemic surpluses should mean Covid compensation

When Covid caused campuses to close, student protests were ignored. Ryan Dunleavy explains how a student group claim is fighting back
This article is more than 1 year old

Ryan Dunleavy is a Partner at Harcus Parker 

When industrial action took weeks out of students’ tuition, petitions were signed demanding money back from universities.

When the pandemic led to tuition moving online and campuses being shut, similar petitions grew exponentially.

Students are consumers of an educational product, and they should have consumer rights. They were well aware of this and were understandably aggrieved with their universities.

Unlike other suppliers of services, such as private schools, universities did not reduce their fees to their customers to reflect the sub-optimal service that they provided during strikes and lockdowns.

When student petitions failed, and political lip-service produced nothing, it was natural for students to consider a legal route to seek redress based on breaches of contract, underpinned by consumer protection legislation.

Student demonstration

The number of students joining the Student Group Claim has, at the time of writing, ballooned to nearly 80,000. By using the website they have jointly instructed Harcus Parker and Asserson law firms to pursue cases for compensation from their universities.

We are doing this under a no win, no fee structure, and have taken out financing to pay for expenses as we progress the cases.

We are not arguing that students should be fully reimbursed their fees.

We are saying that the amount they were required to pay in tuition should have reflected the value of the services provided, which were not worth as much as what the students were promised by their universities.

As the lead claimant in the UCL case, David Hamon, put it to ITV London:

There’s a reason online degrees are usually cheaper than in-person degrees. It’s because the experience is not equivalent and the tuition is not equivalent.”

To use an analogy for what we are arguing, if you bought a Rolls Royce but were given a Renault and told that this was due to third party supply issues with getting Rolls Royce parts, you would at the very least want the seller of the car to refund you the difference in value between the two vehicles.

To say that they both have engines, wheels, go up to the maximum of the speed limit and get you from A to B would not be a “get-out” allowing the seller to pocket the money for the full price of the Rolls Royce.

We say that the same sort of principles apply to the strike and lockdown-affected students. Their courses were not delivered to the standard of what they were promised.

Exhausting procedures

In early February we were due to hear from the High Court whether the claim against UCL could proceed in the court or whether, as UCL, which is the defendant in that case, is arguing, students should first be compelled to use UCL’s own complaints procedure.

I find this argument odd considering that UCL has already said in legal letters to us that it accepts no liability to pay compensation to our clients because, “UCL should not be held accountable for the circumstances it and its students found itself in.” Would UCL make a volte-face on this position if the students halted their court proceedings and instead used UCL’s own internal complaints procedure?

As it happens, today’s hearing has been delayed for procedural reasons – but should be re-listed in the next few weeks, and possibly even later in February.

How did we get here?

Readers of Wonkhe will be aware of the student experience during lockdown – the Zoom classes and the closed facilities.

Fewer will be aware of the fact that many universities earned huge surpluses in the pandemic years. For the 18 universities that we have sent letters of claim to, their financial surpluses exceeded £1billion in 2021, their net assets were more than £16billion, and many of them accepted furlough money. In short, these universities had bumper financial years during the pandemic.

Those 18 universities also increased their student numbers and as a consequence, revenue from student fees, possibly because online courses are not constrained by seating capacity in lecture theatres and tutorial rooms. To take UCL as an example, between 2018 and 2021 it increased its revenue from student fees by 41%.

Meanwhile, our clients are often now recent graduates who struggle to find jobs from employers that do not value their degrees as much as they would have done if they had been taught in pre-lockdown years.

As Jowita Maniak told 5 News:

I have not been able to find a job in forensic science … because I am told I do not have the experience necessary. I have to sit in an interview and try and convince them that actually, attending a crime scene over Zoom is the same as doing it in real life – which, of course, it is not.”

I am not saying that there were easy choices for universities during strikes and the pandemic. What I am saying is that the financial impact has not been borne by the universities themselves. There was never an appetite by the universities simply to charge the students, their customers, less, unlike other service providers.

Instead, the financial fall-out was pushed onto students, whose protests were largely ignored, leaving them feeling infantilised, frustrated, and angry.

Many of our clients are in a vulnerable position. Often they have no income, no assets, and they’re in a lot of debt for the first time in their life. Individually they are much weaker than their universities.

By grouping together, and with the backing of two law firms, a top team of barristers, including a King’s Counsel, and a third party litigation funder financially supporting the claims, students and recent graduates have a fighting chance of getting the compensation they believe they justly deserve.

2 responses to “Pandemic surpluses should mean Covid compensation

  1. Fascinating.

    The issue of compensation by way of a partial fees refund for strike action is the easy bit – the OIA has set a figure of some £125/150 per week of lost T. And arguably Us should be dishing that out on a quasi-automatic basis rather than making Ss jump through internal complaints hoops.

    The issue of similar compensation for the substitution of remote T delivery for F2F delivery is much more complicated and one must note the lack of success in the 150+ class actions in the USA where the Courts have not been able to find any express commitment to deliver F2F within the vague U:S B2C contract.

    If, IF, ever this English law class action gets anywhere there could emerge welcome & valuable clarity on many aspects of the U:S contract that have never been tested in the higher courts – eg were the warnings Us issued to Ss in the summer of 2020 sufficient to justify the material change under CRA15 from F2F to remote.

    And anyway ultimately the Us might play the HE industry’s Get Out Of Jail Free Card – in our academic judgement, which is beyond challenge in Court, the remote delivery was just as good as F2F. Plus, what loss have the punters really suffered? – they still got the credential on time!

    Our para 12.115 (as updated on line) in the 2021 third edn of The Law of Higher Education (OUP) sets out the legal context for all of the above – including the point that the OIA has awarded chunky compensation where very obviously the remote provision of certain kinds of T (eg hand-on fine arts T) could not possibly be a credible sub for F2F in the workshop/studio.

  2. Is it practical to put thousands of complaints through the internal procedures of a university? As a ballpark figure I’m already dealing with a trebling of casework in comparison with the pre-covid era. I’ve excellent metrics in terms of defending OIA complaints but after three years of battling ‘permacrisis’ I’ve reached a point where workload pressures are affecting my health. When you have been working in this area for a decade it is surprisingly difficult to transition to other areas of university administration.

    Irrespective of the merits of this particular claim, the increasing involvement of lawyers has made the world of complaints/appeals a much more adversarial and abrasive working environment. A decade ago, students did not respond to contract cheating allegations by hiring lawyers and accusing Registry staff of breaching the Equality Act. How did we get here?!

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