The current public health emergency has led to institutions having to make significant changes to their teaching, assessment and other student services. As last week’s OfS letter to providers, setting out its approach to regulation during the Covid-19 crisis made clear, the requirements of consumer protection law are not suspended over this period.
So what should institutions be thinking about as they go about adjusting their operations?
For all students who accepted an offer of a place after 1 October 2015, the starting point is the Consumer Rights Act. Under this Act, the information that was published by institutions about their courses, services and facilities at the time the students accepted the offer of a place forms part of the contract and thus cannot be varied without their express agreement. Failure to deliver in accordance with this published information would, in the absence of any enforceable right to make changes, entitle students to claim certain remedies dealt with further below.
Institutions’ terms and conditions will also form part of the contract, provided that they were drawn to students’ attention at or before the point they accepted the offer of a place. These terms and conditions will include a force majeure clause or a right to vary clause, and many institutions will be relying on these to justify making changes to courses in the current circumstances.
Because of the potential for such clauses to cause real unfairness to consumers, they are generally interpreted very strictly and any ambiguities construed in the manner most favourable to students. Questions that are likely to arise include:
- Is the clause in plain English, intelligible, accessible and reasonable?
- In particular, does the clause cover the circumstances in which we find ourselves? Many clauses used in the sector follow the pattern of stating that they apply to circumstances beyond the institution’s reasonable control, followed by a non-exhaustive list of examples of such circumstances. If pandemics are not expressly listed as an example, the question will be whether a pandemic is a circumstance of a type or nature clearly analogous to the examples listed. If an institution has defined force majeure events in a narrow and exhaustive way, then unless a pandemic is expressly mentioned, the clause is unlikely to be enforceable.
- What is the stated degree of disruption before the clause can be invoked? Some clauses only apply where an institution has been prevented from delivering its services, others even where delivery has only been delayed. They generally do not apply simply where it has become more difficult or more expensive to deliver.
- Does the clause release both parties from their contractual obligations? A clause that purports to allow the institution not to deliver any service at all, while requiring the student to continue to discharge all their obligations, is at greater risk of being unfair and unenforceable.
These are the kinds of factors courts usually take into account when determining disputes about the enforceability of force majeure clauses. There is however no precedent for the circumstances in which the sector finds itself and legal opinion is divided as to the overall approach the courts may take to disputes arising as a result of the pandemic, with some lawyers thinking that the courts may take a comparatively generous approach to interpretation, provided the party relying on them has tried to act reasonably in all the circumstances.
What happens if a clause is held to be unenforceable? If students are able to identify things that were promised but not delivered then they have the right to a repeat performance of services that were not provided in accordance with the contractual description, or a discount on fees paid to reflect how far short of the promised standard the services fell. In addition, students may be entitled to other reasonably foreseeable losses caused by the failure to deliver the relevant service or facility. However, such losses must be caused by the institution’s breach of contract and not the wider disruption caused by the pandemic and students are under a duty to mitigate their losses as far as they reasonably can, including by using any alternative services offered by the institution.
Government guidance will also be relevant in this regard, and this has evolved over recent weeks. From the point at which the government advised everyone to stay at home unless absolutely necessary, institutions will have a good case to say that students could not safely have used services and facilities in any event. However, until fairly recently, government advice was that students should attend education as normal.
What can institutions do to minimise the risk of complaints and claims? Wherever possible, they should do all they reasonably can to offer alternative services rather than no services at all. And they should try to reflect the different impacts of the disruption on different types of students, different courses and even different cohorts on the same course. A one size fits all approach may not be appropriate, because it may mean that steps that could reasonably assist a particular group are overlooked.
Providers should be listening to what students are saying about the impact on them right now, not waiting for complaints or formal representations, as this may enable them to take steps to reduce the negative impact on students and thus reduce any future claims. Institutions should also make sure that all parts of the university are properly and diligently engaged in considering how the impact of the disruption can best be mitigated for students so that there is a consistency of approach.
Finally, as always, communication will be key to reassuring anxious students in a prompt and timely way and thus reducing the chances of future complaint.