Some students are more seriously affected than others – complaints during Covid-19

Independent Adjudicator Felicity Mitchell sets out how the OIAHE will examine complaints from students relating to Covid-19

Last month we published our second briefing note in response to the coronavirus situation. We published our first note in mid-March as we were moving towards lockdown.

That already feels like a different age, and things have moved on considerably since then, so we think it’s timely to offer some more thoughts. We’ll shortly be publishing updated FAQs for students.

Governments, regulators and other sector bodies have published helpful guidance as everyone grapples with the additional complexities of teaching, learning and supporting students in this strange new world. Some themes are emerging around the need for careful planning, clear communication, maintaining quality, and ensuring students can meet their learning outcomes. Our briefing note builds on those themes and looks at our own role, as we move towards the new academic year when expectations will quite reasonably be higher than in the initial crisis period of the pandemic.

First things first

In complaints that we uphold we often see missed opportunities – to get off on the right foot, and to put things right when they have gone wrong.

At the first level, this is about engaging with students and their representative bodies to understand their concerns and perspectives and involving them in decision making. We know that, although there have been practical difficulties, many providers and student representative bodies are already doing this to good effect. Students who have been actively involved in finding solutions to the current challenges in their studies are more likely to accept arrangements, even if they are not what they originally thought they were going to get. Clear and ongoing communication is also essential.

It’s going to be different

We think it’s reasonable to expect providers to try to agree any significant changes with students as this is in everyone’s best interests. Where this is not possible, it’s important to explain to students what their options are. From our perspective, we would not be prescriptive about what this looks like in practice but we would look at whether the provider has taken reasonable steps to consult with students and enable them to make informed decisions.

Providers will be planning for a range of scenarios, including potential re-tightening of restrictions, as we approach the new academic year. In this uncharted territory it’s going to be difficult to anticipate and plan for every eventuality, but students need as much information as possible, so that they know what to expect in different scenarios.

Now that providers have had some time to plan for the longer-term effects of the pandemic, it is in our view unlikely to be reasonable for providers to rely on exclusion clauses that allow the provider to make significant changes to what it has promised, or not to deliver it at all, in the new year.

Where it’s not possible to deliver something that is at least broadly equivalent to what was promised, or to meet an individual students’ needs, the provider will need to think about how to put that right. It’s best to do this proactively without waiting for formal complaints to be raised.

Students who are more seriously affected

There are groups of students whose studies are particularly badly affected by Covid-19 disruption and where significant changes are needed to their courses. It’s important to identify those groups and try to address their issues. Some students may feel unable to continue with their studies because the way their course will be delivered has changed materially.

Providers will also be aware of and looking out for students who are vulnerable or less able to access replacement provision. Some of these students too may feel unable to continue with their studies, for example because their personal circumstances have changed, or they are shielding or very anxious.

In such extraordinary times we think it’s reasonable for students to be considering deferring or interrupting their studies, although this may not be their best option. We think providers should be considering requests sympathetically, helping students to understand their options, and should be ready to depart from their normal policy where it is reasonable to do so.

Internal complaints and appeals processes

Students whose concerns can’t be resolved informally should have the opportunity to make a complaint so that their provider can consider their individual circumstances. We don’t think it’s reasonable to have blanket policies such as refusing to give tuition fee refunds in any circumstances or refusing all requests for deferral, or not engaging with individual students’ concerns.

We have already seen a worrying example of this among the first coronavirus-related complaints that have reached us. A provider declined a request for a partial tuition fee refund from an international student on a course involving clinical teaching that was postponed. The provider cited government guidance to universities and said that it would not be adjusting tuition fees for its students at the moment. The provider did not engage at all with the individual student’s complaint that they had paid higher fees this year specifically for the clinical teaching that had been postponed.

Our role

As an ombuds body, our role is to independently and impartially review unresolved complaints from individual students (or groups of students) when something has gone wrong for them, after they have been through the provider’s internal processes. We also share learning from the complaints we see to help improve practice. We will continue to fulfil this role in these challenging times.

When we review a student’s complaint we look at whether the provider has followed fair procedures, and whether it has acted reasonably in the circumstances. We always take into account relevant legislation and guidance. In the current context this means relevant guidance from the CMA, OfS, QAA and Professional, Statutory and Regulatory Bodies. We also consider the national and sector context, what it is reasonable to expect in the still very challenging circumstances and examples of good practice we have seen, as well as the individual circumstances of the student’s case. But we are not a court and we don’t make legally binding decisions about individuals’ rights. A student’s contractual terms and conditions are important but we look more widely than that, at what is fair.

Concerns about alternative course delivery

Complaints about course delivery take many forms and have many aspects. We can look at many of them, but we can’t look at academic judgment. The Higher Education Act 2004 specifically excludes academic judgment from our remit (section 12: a complaint is not a “qualifying complaint to the extent that it relates to academic judgment”). This is reflected in the Rules of our Scheme.

It is ultimately for the courts to decide what is a matter of academic judgment. We define it narrowly: not as any judgment made by an academic, but as a judgment that is made about a matter where the opinion of an academic expert is essential. It’s relatively rare to find a complaint that is solely about academic judgment.

Where is academic judgment likely to come into play in the context of complaints arising from the coronavirus situation? The best way to answer this is to look at some examples.

A provider delivers its Psychology modules through a mix of online and face-to-face teaching. This works well enough for most students. But Student A hasn’t got access to a computer; Student B still has their young children at home; Student C has a chronic condition and medical advice is that they should not leave home; Student D has anxiety and they find the prospect of public transport terrifying. We would hope that all of those students could approach the provider for support so that they could find a way to access their course fully. If not, they could complain to us.

Student E can access all of the teaching. But they feel the teaching overall is not of an academic standard that they expected. We could look at whether all the expected elements of the course were covered, and at Student E’s concerns about people delivering and assessing the course, such as tutors not being available or an examiner being biased against them. We could look at what the provider had done to check the quality of the provision. But we couldn’t judge whether the teaching itself was of the right academic standard or quality.

So we could not look at those aspects of students’ complaints that are squarely about academic judgment – and as things stand the courts would not either.

Of course it does not follow that because we can look at a complaint, we will necessarily uphold it. In the context of a global pandemic, almost all students’ studies will have been affected. We are most likely to uphold a complaint where a student has been disproportionately affected, and the provider has not taken appropriate steps to put that right.

In summary

Providers, students and those who represent them have already shown huge commitment, adaptability and resilience in responding to the impact of coronavirus. Providers will be trying to deliver learning opportunities flexibly so that students can achieve their expected learning outcomes, to ensure that students have not been disadvantaged in their assessments, to support students to access what was available, to listen to and try to resolve students’ concerns, and to communicate clearly throughout. Where they manage to do that, their students are more likely to be satisfied with what is offered, even if they may still be disappointed that their higher education experience has not been what they originally expected. We want to help providers and their students to get to this point where we can.

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