At least some students studying at institutions affected by this year’s industrial action have been calling for (partial) tuition fee refunds all year.
But for what ought to be obvious reasons, this process intensified back in March when universities began their “emergency pivot” to teaching online.
Any time that students (or by proxy, the press) have raised this question of fees, the response has been pretty consistent. Universities are by and large doing their best, continuing to charge “full price” fees is fine as long as “the quality” is there, if students are unhappy they can complain to their university and if unhappy the ombudsperson, and if that doesn’t work, they have legal rights.
Everyone says so.
Back on the 9th April, the Department for Education said:
the Government expects universities to continue delivering a high quality academic experience … If students have concerns… they should first raise their concerns with their university. If their concerns remain unresolved, students … can ask the Office of the Independent Adjudicator to consider their complaint”
Speaking to the Commons Education Committee in mid-May, OfS CEO Nicola Dandridge said something similar:
If students feel that they haven’t had the quality of teaching that they expected, then they do have rights to complain to the ombudsman – ther Office of the Independent Adjudicator“
At the same meeting, her chair at OfS Chair Michael Barber said:
I think we should go into this [assuming that the] university is going to do everything they can and the students can get the learning and teaching that they need. And if they’re not, they should complain… to the Office of the Independent Adjudicator, which is the correct place to take a complaint.
Similar assertions keep being made. On May 22nd, Universities Minister Michelle Donelan said:
Guidance is clear that standards must be maintained… Government is working closely with the QAA for Higher Education to ensure students continue to leave university with qualifications that have real value,..If students have concerns, they can contact the OIA to ask them to consider their complaint”.
In fact DfE got so annoyed with coverage about “full price” fees in May that it put out a specific qualification to reports that there would be no refunds or discounts. “Full tuition fees would only be expected where online courses are of good quality”, it said, and “conversely, if the quality is not comparable, students may have an opportunity of being reimbursed and there are processes in place for them in that instance.”
Michelle Donelan herself said:
To be clear, we only expect full tuition fees to be charged if online courses are of good quality… If universities want to charge full fees they will have to ensure that the quality is there.”
And now OfS’ guidance on student and consumer protection during the coronavirus pandemic says it too. Reminding providers about Condition C2 of the regulatory framework, it notes OIA’s briefing notes about complaint handling in general and in relation to the pandemic, expects providers to take account of OIA guidance and its good practice framework, and in particular reminds providers that work in partnership with other providers to offer clarity for students about which organisation the student can complain to.
The ombuds of May
Throughout this process, the actual adjudicator has been pretty quiet – OIA published some thoughts on how it would approach Covid complaints for providers back in March, and a similar set of FAQs for students a week or so later.
But now Felicity Mitchell, the actual Independent Adjudicator, has piped up to remind students of a devastating caveat to the repeated advice from the Government and its regulator:
Assessments about the quality of what has been delivered are likely to involve academic judgement, which we can’t look at.
Hold on. Ministers and the regulator have now spent three months repeatedly telling students, parents and the press that if they’re not happy with the “quality” of what they’re experiencing online, they can complain to the OIA. Which now reminds us that it can’t look at complaints surrounding assessments of the quality of what has been delivered.
There are those in the sector that will instantly understand the issue here – it’s the academic judgment “get out of jail free” card. In theory it is possible for the OIA (and the courts, which it exists to help students and providers avoid) to discern the difference between a complaint about being treated unfairly, in a discriminatory manner, or in a way where promises were not met – and a complaint where a student disagrees with an academic judgment.
In other words, goes the theory, a disabled student whose reasonable adjustments were not me, or whose extenuating circumstances were dismissed when the policy said they should be accepted have a case. A student disagreeing with their degree classification doesn’t have a case.
There have always been problems with this as an approach. First, although clever “insider” types say they understand the difference, students rarely do. But more importantly, drawing the line between these two concepts is often much harder than it looks.
Take Felicity Mitchell’s examples when explaining the line:
So we wouldn’t be able to consider a complaint that teaching was not of an adequate academic standard, or that an online teaching session wasn’t as good as it would have been face to face, or that a postgraduate student did not get supervision of satisfactory quality.
These issues of academic quality are different, you see, from issues of consumer law and broken promises:
The OIA can look at complaints about what was promised and what was delivered. For example, complaints that the provider did not cover subject areas that it said it would, that the student couldn’t access teaching because of accessibility issues, that the student’s supervisor didn’t keep in touch or that the provider didn’t support its students adequately.
You’ll see that that seems to imply that as long as a “thing” that is harder to do physically is done online, OIA would not uphold. This was certainly the line in the last big batch of strike complaints – merely not assessing students on stuff not taught would mitigate the “academic impact” of lost teaching, but would not make up for “lost learning opportunities”. After all,
We have taken the view that if a student is led to believe they will learn about a specific topic, then the provider cannot make up for failing to deliver that learning simply by not examining the student on it.
But the more you think about this through students’ eyes the less it makes sense. Where on earth this leaves us on the continuum between synchronous and asynchronous learning, and what counts as a “delivered” “learning opportunity” is anyone’s guess. “I wanted the opportunity to go abroad”, “yeah but in our academic judgment you didn’t need to actually go there to meet the learning objectives”. Who wins? And in any case, even if we can have the theoretical debate, the chances of students being able to navigate all of this are pretty much nil.
Maybe OIA would uphold a complaint if a student was able to say – on a consumer law basis – that a provider would only be able to rely on a self-judgment of quality if it could back it up through its academic governance. But despite the fact that most universities’ academic governance pretty much evaporated out of the window in March, who are the students that are going to understand that and be able to deploy it in a complaint? And why should they when they’ve been sent conflicting signals from the DfE and OfS for three months?
What’s bizarre about all this is that it’s pretty obvious that someone making a complaint needs three things – to know how to do it, the confidence to do it without reprisals, and the understanding to know what standard they are judging treatment against. It’s pretty unforgivable that DfE and OfS have been ticking only one of these boxes for three months.
Back in 2010, David Palfreyman described immunity from (OIA and ultimately) judicial scrutiny on the basis of academic judgment as the UK higher education’s “get out of jail free card”. Palfreyman argued that similar magical defences of expertise in other sectors have rightly disappeared, particularly where service users can demonstrate that the supplier of the service has failed in their contractual duty to perform a promised service with reasonable care and skill.
Maybe this will be the moment where what increasingly looks like a flimsy defence will fall apart before an incredulous court. Maybe not. But morally, I’m afraid it’s all too easy to say that the very very best efforts of some academic staff in the middle of an emergency might still not represent reasonable care and skill.
It’s as hard as you make it
Amazingly, in its guidance to universities on reopening, DfE invoked Competition and Markets Authority (CMA) guidance on consumer contracts, cancellation and refunds affected by coronavirus (Covid-19). As that guidance says, consumer protection law will normally
…require the consumer to be offered a refund for any services they have already paid for but that are not provided by the business or which the consumer is not allowed to use because of Government public health measures (this may be a partial refund of the total amount the consumer has paid, to reflect the value of the services already provided);
will normally allow the consumer to withhold payment for services that are not provided by the business or which the consumer is not allowed to use because of Government public health measures;
may allow a business to require payment of a small contribution to its costs until the provision of the service is resumed, but only where the contract terms set this out clearly and fairly.”
It’s not difficult at all to see how online replacements might not be enough for someone to say a previously physical competent is actually being delivered. Nor is it hard to see how a student might argue that in some cases that replacement is being delivered without reasonable care and skill – a failure often outside of the direct control of their academic staff.
But if students knew all that, and the rules of the complaints scheme reflected it, maybe DfE would have invoked that guidance in the context of higher education provision itself, rather than only mentioning it in the context of accommodation. What’s that you say? Does OfS draw providers’ attention to that note from CMA about Covid-19 contracts, cancellation and refunds and assess it in light of several components of HE experience not being delivered or accessible? No. Of course it doesn’t.
It’s almost as if Government and the regulator are doing all they can to disempower students – because they’ve already decided that it’s students and their 30 year loan commitments, not Government and the regulator, that should be made to pay for the impacts of the crisis.