Why aren’t students getting clarity on compensation and refunds?

As calls from students and their families grow, Jim Dickinson wonders whether the usual fudges on tuition fee refunds are going to hold this time.

I think we can all agree that right now we should try to provide students with as much clarity as possible.

Those were the words of the Office for Students’ CEO Nicola Dandridge, who when asked about (partial) tuition fee refunds on the radio the other day, said:

That’s really a question for government”

That was odd, because an hour or so later the PM’s spokesperson at No.10 said:

Refunds are a matter for universities, which set their own fees”

Maybe words had been had, because by lunchtime we got this press note from OfS, which helpfully offered the following by way of clarity:

Universities and other higher education providers have contractual obligations to students and the remedies provided under consumer law may be available to students depending on circumstances of an individual case.”

In the Commons, Gavin Williamson said anyone who is in a position where they haven’t been receiving what they should have been receiving “in terms of the education and the support from the university” can complain through the Office for Students (!), adding:

If they’re not getting the support that they should be entitled to as part of their contract, they are entitled to be reimbursed.

But what are they entitled to during a pandemic? What should they have been receiving? Who knows. They certainly can’t complain about the quality.

There was a funny moment in the Commons when Gavin Williamson was asked by Laura Trott MBE (Conservative MP for Sevenoaks) if, given courses will partly be online, he could tell OfS to make sure that VC bonuses won’t be paid unless fees are lowered. He said he would ask OfS to give a strong steer on VC bonuses. And dodged the part on fees.

Something must be done

What’s going on here is a battle to avoid taking the hit. Put simply, if students aren’t getting what was promised and what they have paid for, there are three ways this could go. The government could step in – but that would be expensive and there are other pressures on the public purse. Universities could issue refunds and compensation – but that would put pressure on their budgets over a crisis not of their making. Or students could just put up, shut up and pay up when (if) they graduate.

I’m going to assume that when the DfE Higher Education Taskforce next meets to discuss refunds, everyone around the table will agree that whoever it is that should pay, it’s definitely not them.

There’s both a legal and a moral case for fee refunds. I won’t repeat the moral case in detail here, save to say that you just have to tune in to almost any of the radio phone ins right now to hear it. Nobody else in society is invited to invest this much money – with no second chance – to experience in totality something both so materially different to that which was promised and with the threat of draconian restrictions on civil liberties (beyond those experienced by the general public) chucked in for free.

On the legal case, the jury’s out. Despite the government and the regulator repeatedly stressing to students that they have rights under consumer law, we don’t really know what they are because cases are paid off, often with silence, before they reach court. We get clues when the Competition and Markets Authority look at sectors like nurseries and weddings, but they’re only clues. “You may have rights on a case by case basis” say the grown ups – except when there’s an obvious, universal collective case – where the grown ups omit the mention of the legal rights, in case students try to use them.

For avoidance of doubt, the TL;DR here for fee paying students (taking out only part of the student body in Scotland) is as follows. Most are consumers in law. When they sign on the line they are made a bunch of promises – some in the wording of contracts, some in wider marketing – that might have been material when they made their choice. You have a duty to keep your promises or get individual consent if you’re going to have to change what you’ve promised. The early part of the pandemic allowed most to just make changes without consent, but OfS and OIA say that’s not an excuse this autumn.

If there’s part of what a student has paid for that you’re not putting on, giving access to or supplying (somewhere to sit on campus, Eduroam, synchronous teaching that’s been cancelled, access to labs and studios and so on), you have to give a partial refund. No, I don’t know how much that ought to represent (although OIA casework often gives nudges) and yes, consequential costs like renting a room somewhere are hard to link legally.

Yeah but no but

Some say that what students are actually paying for is the teaching and learning, and it’s all moved online successfully. But there’s not a university in the country that sells itself on just the teaching and learning. Just look at the front pages of websites right now. Even if we can’t put a value on the social or “place” aspects, there’s the wifi and the seating and the heating and the facilities – the costs of which have now literally been transferred into students’ own bedrooms.

Some argue against partial refunds, because it won’t make much difference to the amount students have to repay. But what about the students who pay upfront, often for religious reasons (the government has been promising Sharia compliant student finance for a decade now). What about international students? What about PG students whose loan terms are different?

And even for home undergrads, those that think the current repayment terms for student loans are going to remain as they are for the next 30 years haven’t been keeping an eye on the RAB charge.

Some argue against partial refunds because of the hit that would mean for universities if government refused to underwrite the cost, and it is true that a university offering mass fee refunds is likely not to continue being a university for much longer. But this is a bit like those who argue against decent pay and pensions for staff because governments refuse to underwrite the cost. Why are students supposed to sign up for their full student loans and interest, but then join the picket lines when pay and pensions appears on the agenda?

Some argue that it would be a better bet to invest in support right now, as has been done for those students in Glasgow and Manchester Met. But as soon as we need to scale the self-isolation solutions beyond those in our own halls to private halls and HMOs, and scale said solutions all year, we’ll flounder with the cost. The sector will say the government should pay. And the government will remind universities of their autonomous responsibilities. We have to break this cycle somehow.

Others argue that it is somehow students’ civic duty to sign up for thirty years of debt (plus a big wedge of private debt) – there is, after all, a pandemic on. I know the student loan scheme looks like a tax and quacks like a tax. But are we sure students should sign up to pay it – all of it – regardless of the quality or misery of their experience?

We’re all in it together

Gavin Williamson said in Parliament that “students, as well as the wider community accept when we are living in a global pandemic”, and I think that’s true. They accept that we have to operate in a society with restrictions. But Gavin also says that he does not believe that we should look to inflict “stricter measures on students” or “expect higher standards of behaviour” from them than we would from any other section of society. “There has to be a parity”.

So why is it, Gav, that other consumer sectors are getting refund advice that students aren’t? Why are students being asked to self-isolate – without the financial support in place for every other citizen, and unable to obtain a test unless symptomatic – all because a couple of students in their halls block of 500 has the virus? Why are public health officials singling students out for “soft lockdowns” that end up generating hard nastiness from parts of communities that then blame the virus’ spread on students?

Nobody I know in HE genuinely believes that universities have been (able to be) compliant with consumer protection law right now. Students aren’t getting what they signed up to, not getting what they are paying for, aren’t getting anything like the clarity of comms Dandrige keeps suggesting, and are not being given the options that regulators say they should have. Many work in universities that teach this stuff, yet are being told by their own lawyers to gaslight their own students to dissuade them from making a claim.

I accept that it’s not at all clear how much students should get, whether we’re talking refunds or compensation, cash or debt relief, tuition or welfare, or how refunds would impact things like accommodation costs or UK wide issues. But the anger from parents on the phone in shows is like nothing I’ve heard before – and this time, it’s not anger we should dismiss as selfish consumerism. This time we’ll need more than merely getting our stories straight to fix it.

3 responses to “Why aren’t students getting clarity on compensation and refunds?

  1. “I think we can all agree that right now we should try to provide students with as much clarity as possible.” – exactly, I definitely agree with this 100%.

  2. See the OIA latest guidance on Us dealing with requests for refunds/discounts from. Ss – as at today. All this is, as Jim says, a moral as well as a political and legal issue – on the last aspect see the Note lodged by Dennis Farrington & I at the WonkHE website: it is probably the case that, providing the U is delivering ‘substantial performance’ of the U-S B2C contract to teach & exam/assess (albeit now by very different new remote/virtual means) the U need not refund/discount; but, as the OIA/OfS say, it should not have a blanket policy of rejecting any requests for refunds/discounts and needs to be clear that teaching delivery to student X on course Y is up to snuff. All covered in the third edition of The Law of Higher Education (2020, Oxford U Press, forthcoming).

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