Every year, hundreds of university students whose degrees, wellbeing, or future have been damaged by the mistakes of their university are unjustly deprived of rightful compensation.
Even when universities admit fault, they either offer no compensation or a sum that falls well short of what it should be.
Students should be wary of accepting the first offer made by the university. The problem is that students and SU advisers are often unaware of how to assess compensation.
In one case, the university offered £1,000 before eventually agreeing to pay £45,000. In another, the university offered £3,000 before agreeing to pay £85,000.
It’s your fault
Elisabeth (not her actual name) was a disabled medical student who required an ergonomic chair during exams. She would otherwise suffer from painful spasms in her back. The university agreed to provide her with such a chair for each exam.
In one of the exams, the university failed to do so. The chair was mistakenly taken to the wrong exam hall. Elisabeth sat the 3-hour exam in considerable discomfort and failed by the narrowest of margins. As a result, she was withdrawn from her medical degree.
Using the university’s procedure, Elisabeth appealed the decision twice, without success.
The university said it was Elisabeth’s fault for not raising the issue of the missing chair during the exam.
With the university refusing to acknowledge fault, Elizabeth complained to the Office of the Independent Adjudicator (OIA), the ombudsman service for higher education. The OIA upheld her complaint, noting that the university had failed to meet its obligation to provide an ergonomic chair and that its decision to reject her appeals was unreasonable. The OIA invited the university to reconsider the case.
The university did so and agreed to reinstate Elisabeth and allow her to progress to the next year of study. By then, two years had elapsed since the failed exam. The university offered her £1,000 in compensation.
Despite her aching back, Elisabeth only just failed the exam. It was the only exam she had failed. An ergonomics expert wrote a report explaining the benefits of the chair and how an ordinary chair would likely affect someone suffering from Elisabeth’s back condition.
There was strong evidence that, with the chair, she would have obtained the few extra marks and progressed to the next year of study. She would have started work as a doctor two years earlier than she did.
The dismissive way in which Elizabeth was treated by the university and the long delay in resolving the problem also caused her significant psychological harm.
Elisabeth claimed compensation for pain, suffering and loss of amenity, loss of earnings, legal fees, and the cost of a report from an ergonomics expert to comment on the impact of the chair on her academic performance.
The case was settled pre-litigation for £45,000, a far cry from the £1,000 university’s first offer.
Counting the losses
Elisabeth’s case is not unique. There are likely many students who accept offers that do not come close to reflecting their actual loss.
The relationship between a student and the university is a contractual one. In contract law, the overarching principle is that damages should place students in the same position as if the contract had been properly performed. In other words, the law tries, so far as possible, to put students in the position they would have been in had the university’s error not occurred.
Central to this exercise is comparing what would have happened without the university’s errors with what has in fact happened. It is then possible to assess the difference between the two scenarios to establish fair compensation.
SU advisers, whose role is to advise students on the reasonableness or otherwise of a university’s offer, should adopt a cautious stance towards offers made by the institution and understand the correct way to calculate loss and damage. This will require either training or the assistance of lawyers skilled in that exercise.
The valuation of damages, especially future losses such as loss of earnings or earning capacity, and what lawyers call “PSLA” (for pain, suffering and loss of amenity), can be challenging even for experienced lawyers.
Ideally, universities should avoid errors that result in harm to students. If such errors do occur, universities should own up to them and resist the temptation to take advantage of the ignorance or financial hardship of students by making derisory offers.
Okay, so what I take from this is that to avoid the potential for costly legal action, the University in question settled for something which would still have been cheaper than a full-on court case. It doesn’t necessarily mean that they would agree that the £45,000 was merited for the case, but it was probably a risk-based decision.
I note that you don’t state whether £1000 would have been a reasonable sum if it had been offered much nearer the incident in question, which I think would have been a very pertinent question in any OIA consideration and loss of potential income, etc (which generally, in my experience, the OIA won’t consider unless it can be proven to be the case).
I am also curious as to whether a re-sit was offered or similar at the same attempt, based on the missing chair; its often not possible to say that a particular issue is worth a certain number of marks, so the implication above that the student would have passed the exam if they had had the right chair might be true, but equally it might not and generally the way that the sector approaches such questions would be to offer a further attempt under the same conditions (but with the chair present). It’s not clear to me from the above, whether, from a legal perspective, you are suggesting that such an approach would be inappropriate and that the nominally missing marks should have been awarded somehow; that would be a very different stance to the one that the sector has moved to in recent years, but it may not actually be what you intended to imply.
Dear Crysanthemum,
Thank you for your comment.
The University would very likely have lost at trial, at least on the question of liability. The key area of dispute was quantum (i.e., the value of the case).
There would not have been any need to pay £1,000 had the uni accepted their oversight at the outset and offered the student an immediate opportunity to resit. An apology would have been sufficient. However, the uni denied fault and blamed the student instead. The student had to fight tooth and nail to get justice, exhausting the internal procedures and seeking redress from the OIA.
By the time the uni allowed the student to sit the exam again, two years had elapsed since the incident.
For medical students, such as Elizabeth, the usual remedy is an opportunity to resit the affected assessment rather than assuming the student would have passed the exam. The report from the ergonomics expert was obtained to anticipate the response “but the ergonomic chair would have made no difference to the outcome!”.
I hope this helps.
Daniel Sokol
I have every sympathy with the position of the university. Elizabeth failed an examination and made a post-Board Equality Act claim informed by her narrow failure. These cases are difficult because the student is often playing the system, and the medical evidence is ‘made to order’ but at the same time the provider should have implemented the necessary adjustments. In these cases, the student never says ‘you didn’t implement my adjustments’ in the period between exam and result. It is always the moment that the result is released. The OIA are scared of judicial review/lawyers and invariably these cases go in the student’s favour. In my mind these cases are little different from the post-Board declarations of mental health/bereavement etc, but these cases are far less successful at the OIA where the ‘you should have raised this earlier’ line seems to hold. In my mind at least they are the same case.
Hammer’s position partly explains the challenges some students face when making an appeal, namely the institution’s presumption that the student is “playing the system” and that the medical evidence, although produced by a medical doctor, is somehow “made to order”. This is a far cry from what the institutions write on their website and prospectus about supporting disabled students.
His assertion about these cases “invariably going in the student’s favour” at the OIA stage is also not my experience.
So what exactly is “a fair number” of the complaints the authors have come across? The readers are not told. OIA decisions are subject to judicial review. But do you know what, the proportion that do are tiny and the proportion of that number that are successful is also small. Maybe one a year? If you search hard, you will find an example that tugs at the heart strings and fits the supposed argument that universities go out of their way to cheat students out of compensation. But you only reach such a conclusion if you ignore the weight of the evidence stacked against this hypothesis.
The majority of cases of undercompensation will never go near the OIA. The student will simply accept the derisory sum offered by the university and that will be the end of the matter. Hence, I don’t think anyone knows exactly how prevalent this is but we have seen quite a few cases. The problem, of course, is that if you are a lawyer (or other adviser) acting for the university then you are likely to recommend making a low offer (making sure it is in “full and final settlement”), at least in the first instance. After all, the lawyer/adviser’s primary interest lies with the university, not the student. The approach changes if it is apparent the student has legal representation and litigation is in contemplation. The university’s lawyer would then need to conduct a proper valuation of the claim, especially if the student has made a Part 36 offer. When that happens, the offers suddenly become more sensible.
It is important to point out that these are not cases of students seeking to enrich themselves undeservedly. The students are merely seeking to recover what they’ve lost as a result of the institution’s breach/negligence.
I fully agree with Daniel’s comments. My child has needed to try and claim compensation from their university. They had intended to follow their degree studies with an MA however the university made a marking error and advised them they needed to return to university to complete their degree. Although my child tried to raise queries at the time they were not responded to and it was many weeks into their additional studies before the error was uncovered. Initially the university tried to blame my child for their situation to enable them to reduce their compensation offer but has since admitted full responsibility. My child has incurred significant financial losses, as well future losses (a year’s income) by having to defer continuing studies by a full year. Having exhausted the internal complaints procedure we are now in a position where a final offer needs to be accepted or refer to the OIA. The offer is for a small amount above actual financial losses and completely dismisses any claim for loss of future earnings, this is therefore certainly something we consider ‘derisory’. I understand (as is seemingly supported here) that the OIA would not consider loss of earnings without firm evidence i.e. a job offer, but this would be impossible to provide if the intention is to continue with studies. I take it we therefore need to balance the possible risk/rewards of taking a legal route. I not only therefore believe that the university has made the lowest offer it feels will be accepted but also that it can do so knowing the OIA is unlikely to request it do any more. Throughout the whole internal process we have been given half the time to respond than the university allow themselves, meaning decisions need to be made quickly and without time to fully research options. Ultimately it therefore feels that this process is stacked against the student – who is only trying to achieve fair redress for something that was outside their control – whilst giving a bias benefit to the university. I do not believe that many would have the resolve or finances etc. seemingly currently required to achieve fair compensation faced with such circumstances.
Highlighting one case without the background on the student’s academic ability or importantly their fitness to qualify as a medical practitioner and then using this to declare that the sector treats hundreds of students poorly in terms of complaint outcomes is rather a stretch. If this was the case the OIA would be highlighting this.
As, for example, a ‘systemic breach’.
Yes, and if it were the case that the Post Office was doing something wrong someone would obviously be highlighting this too,
I recently filed a complaint with my university. Due to its internal error, I commenced my course 6 weeks late (I’m an internatyional student), and by which time I had missed two course modules which I had to self-teach myself while taking other modules for the rest of the academic year at the same time. I also suffered financial losses as well as physical, mental health and other impacts. My university has acknowledged its error, but claims it in no way impacted me in the ways I claim. It offerred £250 in compensation. I’m wondering if I should escalate my complaint to the next internal level, proceed to the OIA, or even just go to court? If feel taken for granted and robbed of a part of my learning.
I suspect the people defending the University work for a University or for the OIA. The Guardian wrote an article that I very much agree with that made the case that University complaints procedures are intentionally stacked up against students. There are countless complaints from students and former students of the OIA ignoring mountains of evidence – some such complaints are even from people who the OIA found in favour of, as the OIA wasted loads of times, initially ignored evidence, or/and offered a derisory sum in compensation.
The student in the article missed out on two years of wages as a doctor. That’s a lot of money to lose. The student probably just wanted things over with and her chance to resit. The University knew they would probably have been ordered to pay the equivalent of two years’ wages at trial.
And it’s been mentioned but it’s worth reiterating: The University could have avoided everything by simply admitting fault, providing said chair, and allowing the student to resit the test. Instead, they forced a disabled student to fight for two years because the university refused to admit fault. Anyone who thinks that’s OK is a scumbag.