Students can go to court over Covid refunds after all. What happens next?

Every so often, legal firms pop up purporting to be able to pursue “class action”-style claims on behalf of students who’ve faced common problems with the delivery of their course, like industrial action.

Most of the time they amount to little – and in fact instead the firms seem to have been using the sign-ups to cream off lucrative Equality Act 2010 claims on a no win, no fee basis.

So I was sceptical when I first came across the so-called Student Group Claim that has been doing the rounds in the aftermath of Covid-19 and its myriad restrictions on in-person teaching.

But over the months, it’s become clear that this one is serious. For a sense of the thrust of the case(s) and the approach, it’s worth a look at the piece that Ryan Dunleavy, a Partner at law firm Harcus Parker, wrote for us back in February.

Broadly, they’re going for one university at a time – with the UK’s biggest provider bar the Open University, University College London, first on the list.

In the end the initial hearing in the High Court on whether the claim against UCL could proceed or whether students should first be compelled to use UCL’s own complaints procedure (up to and including the Office of the Independent Adjudicator) was delayed until late May.

At that point the case picked up plenty of media coverage – and now a couple of months later, Senior Master Fontaine has handed down her verdict. And the big news? The claim can continue.

Two thousand claimants and counting

Broadly, Anna Boase KC and Patricia Burns (instructed by Asserson Law Offices and Harcus Parker Limited) are representing some 924 student claimants, although there are apparently now an additional 2,147 claimants waiting in the wings to join in.

Their case will be familiar to anyone that was listening to students during Covid. It’s basically breach of contract – over what they say is UCL’s failure to provide in-person tuition during the academic teaching years 2017-2018, 2019-2020, 2020-2021 and 2021-2022, where teaching days were cancelled due to strike action, and/or where tuition was moved online and access to facilities restricted due to Covid-19.

Their argument is that in law, they are consumers who contracted with UCL on standard terms for the provision of in-person tuition and campus facilities, and who paid substantial tuition fees for those services ranging from £9,250 p.a. for home domiciled undergraduates to £25,000 p.a. or more for UK graduate students and international students – but did not receive the services for which they contracted and paid.

The students and ex-students are effectively applying for a Group Litigation Order (GLO), a thing that allows a number of claims which concern common or related issues (of fact or law) to be managed collectively by the courts.

In a bit more detail, their draft GLO covers the following:

• Whether UCL owed an express contractual duty, or if not an implied contractual duty, to provide the claimants with (i) in-person, campus-based tuition and/or (ii) physical access to facilities to support the claimants’ learning in one or more of the academic years 2017-18, 2019-20, 2020-21 and 2021-22.
• Whether (if such a duty was owed) UCL breached its contractual duty to provide the claimants with in-person, campus-based tuition by cancelling teaching during the periods of industrial action in one or more of the 2017- 18, 2019-20 and 2021-22 academic years.
• Whether (if such a duty was owed) UCL breached its contractual duty to provide the claimants with (i) in-person, campus-based tuition and/or (ii) physical access to facilities to support the claimants’ learning by (a) cancelling teaching, (b) moving teaching online, and/or (c) restricting physical access to facilities during the Covid-19 pandemic in one or more of the 2019-20, 2020-21 and 2021-22 academic years.
• Whether UCL is entitled to rely on any contractual clauses which purport to allow it to (a) cancel teaching, (b) move teaching online and/or (c) restrict physical access to facilities, without providing compensation to the Claimants, or whether any such clauses are unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 or the Consumer Rights Act 2015 (as applicable). [so-called “force majeure” clauses]
• Whether the Claimants have suffered any recoverable loss, including non-pecuniary loss, in respect of any breach of contract by UCL, and the formulae by which damages are to be calculated, if the Claimants have suffered recoverable loss.

On the case itself, UCL “denies liability, causation and quantum” in a defence that it submitted in April. No view has been expressed yet on the case itself per se – but UCL also argued that before getting to the merits of the case itself, the claims should be referred to the state-backed Alternative Dispute Resolution (ADR) service (ie the OIA) – and that the claims were “inadequately particularised”.

On those issues, the judge has issued a view.

There are some pretty obvious benefits to going down this route for the students concerned – but UCL argued that there should be a stay of proceedings to enable the students to use UCL’s processes and the statute-backed ADR scheme put in place for resolving student complaints without the need for court proceedings.

UCL also argued that that there was no basis for making a GLO for the following reasons:

• The claims, it said, have been formulated at an “inappropriately high” level of abstraction. In other words it argued that the level of “particularisation” needed to advance or resolve any of the individual students’ issues underline represent a lack of commonality;
• It also argued that because different students in the group had different contracts and therefore contractual terms, as well as representing different programmes, modules, years of study, strike dates and effects of Covid-19, that there were in fact numerous different small groups of claims within the claim.
• It also argued that case law makes clear that before everyone gets stuck in to group litigation, it’s crucial to consider whether there are other means of managing the litigation outside of a GLO.
• UCL also drew the court’s attention to the costs already incurred, and the fact that the solicitors’ “no win, no fee” agreement with the claimants is that they will take up to 35 percent of any recoveries made.

To back up the case, UCL’s solicitors deployed a range of arguments drawing on case law that are worth a look if you’re interested in that rabbit hole. Unsurprisingly, the group claim’s solicitors also deployed a range of arguments drawing on case law to support their case. It’s the discussion and determination on those arguments that matters here.

You can’t make us

First, the judge draws on a bit of case law herself. In R(Maxwell) v OIA the Court of Appeal the judge considered the OIA scheme in the context of a complaint about a failure of a university to make reasonable adjustment for a Disabled student. The Court held that the courts were:

…not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues,…. which “usually involves making decisions on contested questions of fact or law….”

It also held that:

If the approach advocated by … [the counsel for the claimant] were correct, it is difficult to see what point there would be in having a scheme, which was established under the 2004 Act not as another court of law or tribunal, but as a more user friendly and affordable alternative procedure for airing students complaints and grievances.”

In particular Senior Master Fontaine says that it’s apparent that the OIA doesn’t attempt to determine the legal rights of the parties in considering any complaint.

Sure, ADR schemes like the OIA can take legal rights into account. But she finds that the group’s complaint that the OIA’s scheme is not equipped to make determinations on the legal issues involved – like interpretation of the contracts, whether exemption clauses are binding or their rights as consumers – to be a valid objection.

She isn’t thrilled that internal procedures and ADR haven’t already been tried, and so still accepts that ADR is worth pursuing if both sides are up for it – given that if a compromise can be achieved, that can often be “a more satisfactory outcome than incurring significant costs, and a risk of an adverse costs order.”

But she nonetheless finds many of the group’s concerns about using the OIA to be valid.

She notes that the OIA’s approach is likely to be to assess whether UCL acted “reasonably” in relation to the challenges of strike action and the Covid pandemic. That is, indeed, the OIA’s topline approach. But she also had a shufty at some of the OIA’s case summaries – and worries that there does not seem to have been any consideration as to whether it was “reasonable” for UCL to mitigate the impacts of strikes and Covid without providing a (partial) fee refund:

If such an approach is maintained, i.e. determining the question of UCL’s reasonableness from the perspective only of what was done to enable teaching and access to facilities to continue in a different format, without considering the effect upon the students, who were asked to pay the same fees for the more restricted delivery of courses online as they would pay for delivery of such courses in person, where there would also be physical access to facilities on the university premises, then ADR through the OIA scheme is likely to be unproductive.

Can we handle a deluge?

Next, Fontaine gets concerned that neither the UCL complaints procedure nor the OIA referral process may be equipped to deal with the number of complaints likely to be made in a reasonable time frame.

UCL had supplied plenty of evidence of complaints being made and being resolved, but the judge found no information about the number of such complaints, what payments were made, what type of courses were in issue or how long such complaints took to be resolved.

The OIA didn’t give her much reassurance either. It may have introduced new rules for group complaints, but its evidence said that it was difficult to estimate the time that it may take to resolve a group complaint of this size:

This will depend on exactly what the students remain dissatisfied with at the end of the provider’s internal process; whether the students are well placed to coordinate their views and to respond to any questions we may have. It is very likely that we would consider a complaint from a group of this size as a high organisational priority.”

Quantum leaps

The third issue in the discussion was concerns from the student group over how UCL or the OIA will assess “quantum” – will all sorts of factors in play, like how many days of a student’s course was affected by online reaching/access to resources, whether their course involved practical work that was not possible, such as science, engineering, geography and medical courses, and comparators with other courses delivered wholly online.

She figures that the group ought to be ready to supply information to that end, and says they should be prepared to make proposals as to how different cohorts of students in similar factual circumstances could be grouped together for the purposes of making progress as to how “quantum” could be assessed – a feature of the big student complaint that the OIA considered over Covid at the Royal College of Art.

As such it’s sort of a conditional approval to the application for GLO to go ahead, albeit with a gauntlet laid down for the group in an attempt to avoid it:

…I do not consider that the GLO application is able to proceed until some proposals are made as to what information is needed from the Claimants and UCL to enable consideration of the factors…Without this information the court will not be in a position to determine whether there are sufficient common or related issues, and what they are likely to be, for the purposes of making a GLO.”

She also gets concerned about the 14 different sets of contractual terms that cover graduate and undergraduate students who commenced studies in 7 different academic years; the differences between science, medical and engineering courses, and arts and humanities courses, the fact that some students accepted their offers after the effects of Covid were known, and when UCL say that it had made it clear that in-person teaching and access to physical facilities would be restricted. Again, the message is – find a way to establish commonalities and also distinctions.

And she worries about costs, the amount that might end up in students’ hands at the end of it all, and the fact that UCL is a charitable institution, and the fact that:

…its management time and funds could be more productively spent than on substantial legal costs.

The gauntlet is also laid down for UCL, and on its behalf, the OIA. Fontaine sought assurances of how the university’s internal process would operate in this case, for the potential number of students who would bring complaints and within a reasonable timescale.

Dansa pausa

But regardless of all that, she resolves not to make the claimants engage in ADR, but instead to press pause (“make an order for a stay”) to encourage both sides to engage constructively in some form of ADR:

The claimants have stated that they are willing to engage in ADR, both in open court and in correspondence in May and July 2022. They are just not willing to do so via the medium of the OIA scheme. Whether their objections to that scheme, if persisted in, are reasonable or not will be a matter for future determination.

And the encouragement is… strong:

…I encourage parties in the strongest possible terms to engage in an appropriate form of ADR…If UCL/the OIA can provide satisfactory assurances as to the concerns…then there is a ready made ADR process that will, if successful, limit costs substantially because legal representation may be unnecessary.

The pause is set at 8 months – but there’s a break clause on the basis of her concerns over:

1. whether UCL and the OIA have sufficient resources to deal with this volume of complaints;
2. whether UCL/the OIA are prepared to consider not just the reasonableness or otherwise of moving courses and facilities online (which is not disputed by the Claimants) but also the reasonableness of charging full fees for the delivery of teaching and facilities solely online
3. whether the parties will be able to find common ground in agreeing on a method of ADR that would be acceptable to each party
4. whether the parties can agree on a process for each of them providing information to enable the individual claims to be determined

No.2 in particular is a thorny one. Generally universities settle these sorts of claims, either directly or through the OIA, without wanting to accept legally that they were in breach of contract – or that if they were, they were still entitled to rely on any “force majeure” clause getting them off the hook for doing so.

That’s unlikely to change in the next four months.

Right. What’s next?

What happens next, then, will be fascinating. It’s hard to see how the OIA might be able to handle a case of this size – but even if it could, the OIA isn’t really in the business of issuing legal interpretations of consumer protection law, so if UCL doesn’t concede on the contract stuff, it’s hardly as if the OIA will be in a position to resolve that.

As for alternative alternative dispute resolvers, I suspect UCL wouldn’t be thrilled with the Competition and Markets Authority (CMA) taking on the role even if it wanted to, and whether this is one where OfS’ National Trading Standards (NTS) partnership could step in remains to be seen.

Maybe the claim will eventually settle out of court. But arguably the bigger prize for the law firm(s) is getting their a day in court and establishing some case law that can be applied to the 17 other universities it’s been gathering signatures on, and the tens of thousands of students daunted by the idea of making a complaint, making an appeal, going to the OIA and still not getting a proper view over their rights.

Many in the sector will be deeply troubled by the idea that going to the OIA can’t be insisted on here. But it was never set up for this sort of case, there’s a complete void where some judgements should be on much of the consumer law stuff (see for example my notes here on industrial action), and as long as it’s impossible to advise students on what their rights actually are, and the realistic prospects of enforcing them, there will be a need for a case like this to drive some change.

In my own view, too often the sector and its sponsoring ministers treat students as partners in public services that have to suck it up when things go wrong as long as their provider does its best, or in OIA parlance, “acts reasonably”. But arguably the fees thing changed all that – and it‘s now long overdue that students know whether a provider “doing its best” is nonetheless, in law, still not good enough.

Kathleen Armour, UCL’s Vice-Provost of education and student experience, said:

Throughout the pandemic we prioritised the health and safety of our whole community and followed UK Government guidance, working tirelessly to make our campus and all UCL premises as safe as possible so that a high-quality academic experience could continue to be provided.

We respect the right of our students to complain and seek redress if they feel that they have not received the support they expected from us.

We still believe our complaints procedure represents the most efficient, cost-effective and swiftest way for students to resolve their complaints. We are pleased that the High Court has ordered that proceedings be stayed to allow for the parties to attempt to resolve the students’ claims without the need for further litigation, and that the Court has recognised the part our complaints procedure can play.

We remain confident that our complaints process is the best route for our students. Should anyone be unsatisfied with our response to their complaint, they also have the further option of asking the Office of the Independent Adjudicator for Higher Education, the appointed independent body for student complaints, to review UCL’s decision.