With all this lovely weather, I’ve been yearning for a holiday – but I’m not sure this offer I’ve just been made by a tour operator really stacks up.

“Because of Covid-19”, says the brochure, “by the time your holiday due date arrives we might not be able to get you there and even if you get there yourself, we might not have any of the facilities open. If that’s the case and you book anyway, please note you’ll neither be entitled to a refund nor a discount, but you will get to watch some people swimming in a pool on YouTube. You’ll also be able to join in with our holiday chat on Zoom. And you jolly well better risk booking it – because holidays will be much harder to come by next year!”

Sounds pretty unreasonable to me. And probably unlawful.

Do you remember

The RSA’s Matthew Taylor has a good blog up this week pointing out that while it’s natural to think about the next few months of the pandemic as “the crisis” and “the world afterwards” it may be more useful to think of three stages – the immediate crisis, the transitional period and the emergence of a new normal.

Emergency powers and measures that have worked for weeks aren’t right for an extended period of time, not least because “Gold Command Committee 3” is going to start to sound impossibly silly after Easter Monday. And given both next term and next academic year will now start during the transitional period, we need to think about what that might mean.

The UK is already looking like a less attractive country to come live in for a while than it was, given the sick man of Europe has been Boris Johnson himself – international students have spent weeks trying to escape what the international press seems to believe is a fundamentally unsafe country. It’s therefore looking increasingly likely that the sector will be prepping up for a September start – if for no other reason than to avoid sending a signal around international markets that the UK is shut for the Autumn.

It’s certainly the signal that Michelle Donelan seems keen to send, both to home and international applicants. In both FAQs like this on the DfE website and appearances like this on social media, the message is – we might be partially online, but it’s still “business as usual”.

That does mean that the choices facing prospective students – and indeed continuing students – are stark, and full of problematic risk/opportunity conundrums to weigh up. On the one hand, the experience of enrolling in September when we might be bouncing in and out of social distancing like a student in and out of a set of halls with a faulty fire alarm might be utterly miserable – especially because most UK enrolment is as much about academic tourism as it is about “learning outcomes”.

On the other hand, to the extent to which university is also about class signalling, it may well be massively difficult to get into uni the year after – especially if by then there’s double the applicants and a whole clutch of providers have collapsed. And if you’re a continuing student, there’s your mates and that housing contract you’ve already signed and YOU’RE SICK OF BEING AT HOME. So do you gamble?

The news is good

In theory the good news for students is that they shouldn’t have to take those sorts of risks personally. When universities were publicly funded their university or student experience would be, basically, state protected. And now it’s funded significantly more privately through loans, or upfront fees, there’s both student protection plans and a wider consumer protection regime to help.

And the great news is that the law on the latter is really clear. Contract terms that allow a higher education provider to vary something – such as the course content or major facilities – are unfair where they allow wide discretion to the provider to make changes to important aspects of the service. “It is important”, says the Competition and Markets Authority, “that students receive what they expected, rather than something different”.

So enforced properly, that takes the risk out of September – both for prospective students who’ve relied on the “material information” about their campus experience, and continuing students who would need to explicitly agree to a variation to what’s been offered, a failure to provide would mean refunds and compensation kick in. Universities won’t be allowed to generate formal legalese that matches my made up “risk it for a biscuit” opening paragraph, because that would be unfair to applicants. And for continuing students, what was OK to just impose on students during an emergency becomes something students have much more agency over in a prolonged crisis.

But given the circumstances, and the fact that we’re all in this together, are these sorts of student rights reasonable? No university is going to be able to offer this kind of certainty, are they? And what even is “reasonable” now?

We all need to be reasonable

One of the things that’s long annoyed me about the National Student Survey is that when students give their scores on each of the factors, it’s never been clear what they’re being asked to judge an institution’s performance against. It is highly likely to have been the only higher education provider a respondent has ever attended, so they’re not comparing assessment fairness or teaching quality with other universities. And because the actual standard on offer on any of the question’s factors is never set out for students, they’re not comparing against the provider’s promises either.

In this DfE blog post, students are told that as long as “reasonable efforts” are being made to enable students to continue their studies, and that as long as the online replacements for learning and support are “adequate”, then they shouldn’t expect a refund. But at least before Covid-19 students could in theory point to broadly agreed definitions of “reasonable” care and skill, broadly agreed national standards and guidelines on “adequacy”, and to the things that they were explicitly promised. Who knows what they’re supposed to point to now, when they do as DfE says and consider a complaint if unhappy.

OIA says in a briefing to providers that moving online could depend on students having access to reliable fast broadband (and being able to use it), and separate arrangements will need to be made for those who don’t or can’t. But can students rely on that as an implied standard? Is that reasonable? And how would they know? It’s not as if OIA is saying that to students.

OfS says that communications on changes to courses and assessment for next term should set out the options available to students in order for them to avoid the changes without being adversely affected, expects providers to consider making reasonable alternatives available to students, and would have “regulatory concerns” if providers failed to do this – adding that providers should consider whether students should be offered the opportunity to be taught and assessed in the “normal way” when the situation allows. Can students rely on that as a right? Is that reasonable? Who’ll foot the bills?

QAA doubtless means well when it says that some providers are planning to “move final-year degree shows to online platforms”, or points out that “live performance in theatre and drama” is being replaced in some providers with “written assessments”. But with the needle on “acceptable” shifting so dramatically (with some of the squarest pegs in history being wedged into very round holes) are we really sure some of these emergency changes are reasonable? And will they still be so in September when there’s been six months to prep?

Michelle Donelan says that “an important source of support during this period of isolation” will be “bolstering existing mental health services”, and “adapting delivery to means other than face-to-face”. That’s not quite what she said to students, though. Can students rely on those promises? In every higher education provider? In that long tail of private providers this Government was so keen to tempt onto the register? Is that… reasonable?

Her department also says that the Government has “made it clear that if institutions are unable to facilitate adequate online tuition then it would be unacceptable for students to be charged for any additional terms – effectively being charged twice”. But OfS suggested you could choose to avoid online and wait. Can you? If you can’t, what is “adequate”? By what standard? And is this “won’t be charged twice” thing legal right now? Even if it is, who’s paying the wider costs for another term? Is DfE going to extend the maintenance system for another term? More debt? Half a year’s housing?

And what’s a “reasonable” adjustment for a Disabled student right now? Is the anticipatory nature of the duty still anticipatory? Why are none of the national bodies pumping guidance out here? Where’s that Disabled Students Commission gone? And when can Disabled students anticipate that it will revert to being reasonable for their provider to start to… anticipate?

Part of the reason that all this matters so much is that as well as the immediate issues, there probably aren’t many universities in the country right now that aren’t thinking about dramatic savings they might have to make to survive the next year. Promised new facilities that don’t get finished. 24 hour libraries that have to become 12. A final year module catalogue brimming with choice that suddenly becomes more “core” than “optional”. You know the sort of thing.

If these are changes that aren’t “material” and that students won’t see or feel, the obvious question is why they weren’t made a few years back. More likely they will be material, and providers technically will have to seek permission from both applicants and continuing students to offer a demonstrably worse experience than they’ve already been “sold”. But maybe they won’t. Maybe OfS will turn a blind eye, maybe CMA will have bigger fish to fry, and maybe DfE will keep pumping out generic, amateur hour legal advice to students on their contracts. Maybe only a handful of students will get as far as the OIA. Again, you know the sort of thing.

Leave off will you

I say all this not because I’m desperate to point the finger at “failing” providers in the middle of a pandemic, or because I think anything other than students like everyone else in society have to take a bit of pain and make a bit of sacrifice here. It’s also pretty clear that over the past month almost everyone involved in UK higher education has been going at a million miles an hour, and doing their very very best in “unprecedented circumstances”. It is, for example, amazing that so many student nurses are right now working on “placement” in hospitals. It’s also outrageous that they’re still paying “tuition fees” to do so.

I say it because as September edges closer, with the adrenaline gone and the nights drawing in, the sacrifices and reductions in delivery and protection from public services we might have expected citizens to endure over the past month in an emergency are going, in our sector, to start to be replaced. What’s coming if we’re not careful is a deep, visceral and entirely justifiable outrage that we expect students to chip in so much fee income privately, but to respond collectively and publicly when things get tough. All of which, I suspect, will mean the very opposite of higher education “business” as “usual”.

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