Three problems with Nadhim Zahawi’s invitation to revolt over online learning

The Secretary of State for Education says he's giving students upset about Zoom lectures his "full backing". Jim Dickinson wonders whether he really means it.

Jim is an Associate Editor at Wonkhe

Students who were made to pay £9,000 tuition fees for Zoom lectures should revolt, Education Secretary Nadhim Zahawi says.

That’s the headline in the Mail, which does seem somewhat at odds with his government’s general view on protest embodied in the Police, crime, sentencing and courts bill.

Sadly, on closer inspection it would appear that in this case “revolt” turns out to mean “sign a large group complaint and progress it as far as the Office of the Independent Adjudicator”.

Minister for further and higher education Michelle Donelan is involved too – she’s even tweeted that she’s going to hit the phones:

In Zahawi’s “open letter “ to students to which the Mail article refers, he goes on to say that if students feel that they are not getting the face-to-face teaching they signed up for, or that they would expect, they should talk to their university or college:

I know that students expect and deserve face-to-face teaching and support, and you have my full backing.”

Correcting his previous mistake about who to complain to, he tells students that while they can “notify” the Office for Students about course quality, to get their share of the compensation pie they should ask their SU for help to to join a joint complaint to their provider, and then to the OIA – a process which he notes resulted in more than £450k being paid out in compensation in 2020:

This is intended for complaints from a large group of students at a single provider where there is a high degree of commonality between the complaints.

Two responses tend to accompany this kind of now-familiar pronouncement. The first is to bemoan the general lack of support from ministers for the sector. The second is to question the obsession with and preference for “in-person” teaching.

But we should also ask – is he right on complaints?

What does he mean?

Before we get further with this, it’s clear that Zahawi isn’t talking about all online learning or electronic resources. He’s not arguing that powerpoint slides shouldn’t be uploaded onto the VLE, and he’s not trying to ban that lecture capture setup in Lecture Theatre 5. He means hours that used to be delivered in-person, but are now being delivered “live” exclusively online, or as recordings:

While virtual learning can complement and enhance the learning experience, I do not want to see students who were promised face-to-face education receiving anything less than the highest quality teaching.”

Now suspend your disbelief for a minute and resist the temptation to point out to me that it’s all more complicated than this. To get a case upheld, Zahawi rightly points out that students would first need to be not getting the teaching they “signed up for” or that they “would expect”. This is a simplified reference to a basic tenet of consumer protection law – the idea that service providers have to do what they promised.

As such Problem #1 with Zahawi’s messaging is that not all students will have been explicitly promised that the hours that used to be delivered in-person will actually be delivered in-person.

The Competition and Markets Authority says that included in the “material information” that students need to make decisions about their choice to come to university and to choose a provider, information about the composition of the course and how it will be delivered, and the balance between the various elements, should be included. OfS has gone on to refine that advice as follows:

This includes the extent to which the course may be delivered online rather than face-to-face and how the balance between, lectures, seminars and self-learning may change. Prospective students will be particularly interested in the volume and arrangements of contact hours and support and resources for learning if this may take place online and virtually.

Hence even if we ignore any changes made to cope with the pandemic, if a provider was vague about that balance while they might have been in breach of CPL, it feels like a much weaker case to base a complaint on than Zahawi suggests. And it certainly suggests that undergraduates in their third or fourth year are likely to be in a much stronger position than others given how providers will have qualified their promises since March 2020.

But what about the pandemic?

Problem #2 is that providers might have been justifying changes to delivery on the basis that their own pandemic risk assessments require them to. In a sense, the exhortations of ministers that they are “prioritising” face-to-face teaching and that there are “no [pandemic safety related] excuses” for not doing so are besides the point. What matters is what the contract said.

It might be, for example, that both for continuing students and for new students, the contract contained variation clauses that the provider says allowed them to switch some teaching online if they needed to because of Covid. Here the consumer protection law test is whether the variation clauses strike a fair balance between the higher education providers’ rights and obligations and those of its students and whether such a “surprising” clause was sufficiently accompanied by that siren emoji 🚨when the student signed.

As such, the student not only needs to have been explicitly promised the F2F volume they’re now upset about, they also need to have signed something that doesn’t give the provider carte blanche to switch online if Omicron comes along. Or – they’re complaining about the wording of a variation clause, which doesn’t feel quite so exciting – or a viable route to resolution.

Of course it could be that the student suspects (or that the students suspect) that the “real” reason for a switch online is that even without omicron, the university wouldn’t have the physical space to deliver lectures in-person if it wanted to – an issue often caused by Zahawi’s predecessor via that examnishambles. Or it could be that the university would like to use the pandemic as cover for switching that kind of teaching online on a permanent basis.

But how on earth would a student go about proving these things one way or the other?

How long has this been going on

Problem #3 is the process itself. Let’s set aside that not all students’ unions have the capacity and capability to help students with large group complaints. Right now I’m aware of a pretty straightforward large group complaint at a largeish provider that has been going on for over 21 months. Is that really the sort of process that Zahawi wants to tie students up into?

And what of the students who don’t sign the group complaint? If Zahawi is right that the process is designed for cases where there is “a high degree of commonality between the complaints”, why is it that only those who sign on the line get redress?

Where that all gets us to is that it is not easy for students to identify instances where they have not received the service they were promised and to seek redress. This means that students’ consumer protection rights are not enforced when what they have been promised, in terms of quality, contact time, support, and so on, is not delivered.

And we should consider whether a model that relies primarily on individual students challenging a provider for a breach of contract places a burden on students in an undesirable way.

Those aren’t my words, they’re the words of the Office for Students in a board paper from 2019 on the development of OfS’ approach to consumer protection. It’s a paper that basically says that not only is all of this stuff really complicated, we need interventions from the regulator on the contracts that are being signed before a student gets to a position where they would need to make a complaint. In other words, make it easier for the little people to kick off, or wheel in a big person to save them from having to. OfS doesn’t seem to have done either.

As such, it’s no good Nadhim Zahawi or Michelle Donelan behaving like they’re presenting a bad episode of Watchdog. If they really believed this stuff and were genuinely giving students their “full backing”, they’d be leaning on the largely absent Competition and Markets Authority and the Office for Students to intervene. That they haven’t and won’t either means that they don’t really think students have a case, or that if they do, they’re not prepared to fund the implications.

3 responses to “Three problems with Nadhim Zahawi’s invitation to revolt over online learning

  1. The article is exactly right about the fuzzy vague implied (or not!) contractual terms in the usually rather sparse U-S ‘contract’ and hence the problem for the S – leaving aside the possible validity of any force majeure clause – in proving he/she was ever promised F2F delivery of T. The 100+ class actions in the USA calling for fees refunds on the basis that F2F was pledged and/or Zoom delivery was inferior to F2F have largely now run into the sand – and the few reaching the US appeal courts also look like floundering. And whether Zoom delivery was up to snuff means the Court entering the sacred zone of judicial deference to the proper exercise of (supposedly) expert academic judgement – and no courts anywhere ever go there. The hope must be that at last there comes into being a standardised clear comprehensive and fair U-S contract based on the Consumer Rights Act 2015 – perhaps the UUK, OfS, CMA, OIA, NUS, Which?, et al, will manage to agree on such just in time for the next global pandemic that disrupts HE activity in c2075!

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