One of the frustrating things about the artificial divide between “head” and “hand” implied in the way that successive governments run education policy is that much of UK higher education is pretty darn hands-on.
As a result when a think tank pops up and suggests we split the sector in half, or a backbencher argues we need more people who can “do” than “think”, we regularly rightly hear sector bodies and VCs proclaim that they already provide plenty of practical, vocational courses.
That presents quite a problem, however, when a global pandemic and series of lockdowns means you can’t really run any of the practical components that you promised – at least not satisfactorily. It ought to be no good to just say “well we put something on that was academically equivalent”, because the whole point is that the alternative you scrabbled to put in place may well not have been practically or vocationally equivalent.
The debate about what might be OK and what might not has been on all year, and now England and Wales’ HE ombuds the Office of the Independent Adjudicator (OIA) steps into the fray with a freshly baked batch of case summaries that offer some further clarification.
As ever with these summaries, they’re not case law as such, but they’re the closest thing we have to it – because they give students and providers clues as to how OIA would treat future, similar complaints.
Raising the bar
Imagine you’re on a one-year Bar Professional Training Course. Most of the teaching you get is chalk n talk, and most of the work you do is booksmarts and written assignments – but one aspect that was pretty essential to the course was “Conference Skills”.
In that module you’re introduced to and develop the skills necessary to prepare for, structure, take instructions and advise a “client in conference”. It would normally be delivered through role-play exercises and assessed by a filmed performance using actors. But there’s a lockdown on.
Your university has a think about what you might do online – but in the end it decides that it won’t work to run the role-plays online or ask students to take part in an oral assessment online. Instead it asks you to submit a written assessment, and thanks to the QAA and Michelle Donelan putting some gentle pressure on the PSRBs, the change is approved by the Bar Standards Board – although one external examiner is minded to express reservations about the wheeze.
When your complaint about the whole affair reaches the OIA, it agrees with the academic judgement decision that you switched to a written assignment to ensure students would not be assessed on skills they had not been taught. But that’s separate to the skills issue. “Conference Skills”, a key sell in the prospectus, is a skills-based module focused on practical learning – and it figures that while your university took reasonable steps to mitigate academic disadvantage, it doesn’t think its delivery of this bit was broadly equivalent because students didn’t have the opportunity to practise soft skills such as communication and giving advice – things that are central to conducting an effective conference with a client.
Think again, it says. Why didn’t your provider think more about how you might deliver the practical learning students reasonably expected to receive – like virtual role plays? And no, replacing something that students usually get to practice and do for real can’t be done with recorded materials of others doing it.
OIA tells the provider to pay £1,000 (cash, not a “fee rebate”) in disappointment damages to you because you were not able to practise the skills you expected to gain from the module. But what do all the other undergrads on the course get who might have signed a petition but didn’t go through with a formal complaint?
Hands on experience
Maybe you don’t offer law, but do offer creative arts-based taught Masters courses. Students figure you’ve been sweating the numbers a bit recently, and students were grumbling pre-pandemic about timetabling (particularly in relation to guest lecturers and events), a lack of access to facilities and equipment, and other pressures created by a larger number of students being admitted on the course than many of your academics privately thought was reasonable.
You put some measures in place to fix it all, but then the pandemic hits – and bang, much of what you said you’d do now is impossible. Deal or no deal time – you decide to offer the complaining group of students £500 each. But they wander off to the OIA who suggest that instead, the complaining students should get £1,250 (again cash, not a “fee rebate”) and those who’ve completed should get access to some specially scheduled practical workshops, and an opportunity to do group work with access to equipment.
You settle, quickly – but what about all the students on that course who weren’t signatories on the complaint, and what about those on other courses that you over recruited to, but whose students didn’t go through with a formal complaint? Thank god you haven’t had to shell out for them too.
One way that you’ve been coining in the cash in recent years has been to offer those Business-related PGT courses with prospectus pictures of people wearing shoulder pads and open top shirts in glassy offices that give the impression of high earnings.
To experience this, students pay tuition fees of over £24,000 – but during the pre-pandemic industrial action, a bunch of lectures and other activities were missed, and now there’s a lockdown on you can’t offer all the bells and whistles that were in the glossy brochure – executive facilities (including meals that were covered by the fees), summer school activities, visits to businesses, and networking and career development opportunities.
The point about what you were offering is that it was a series of learning experiences, not just the formal “course” – so when a group of students takes their case to the OIA, it agrees that there’s another of those “broadly equivalent” problems.
A friendly OIA official points out that you can’t just say “well the learning outcomes were met” and cross your fingers, points at some of its previous decisions, and you settle on offering students in the complaint £2,000 a piece to compensate for a shortfall in delivery of some aspects of the course, and to recognise that there were wider learning opportunities that students reasonably had expected to benefit from too.
But what about the students who didn’t sign up to the complaint – and those on other programmes that had also signed up for courses with “value-added” activity that you decided you couldn’t replace? You thank your lucky stars you haven’t had to pay out cash to them too.
You see the pattern here, right? Practical and vocational components of courses – whether formally part of the diet of modules in a programme or part of the wider educational offer – matter, and can’t be easily replaced with a box set of YouTube videos and booksmarts.
This has been clear to students undertaking these sorts of courses since the early part of the pandemic, and many providers have done their best to recreate some aspects online, but in hundreds of thousands of cases, in the absence of any meaningfully funded alternatives and with some encouragement from QAA and some PSRBs, providers have pretty much had to plough on and pretend that their academic alternatives were OK.
They never were. But those that reach the end of the emotional assault course that is taking a complaint all the way to the OIA are the lucky ones. The question now is what happens to those that didn’t sign the letter, or those on courses at those providers where similar decisions were made.
In its guidance note on large group complaints, OIA says that it may be fair for providers to extend an offer to other students affected by the same issue even if they have not made a complaint to the provider or to OIA. This, it says, is likely to be reasonable where the provider has not delivered a service, or where students in a particular cohort or group have not been treated fairly. But it has no power to demand that – and it’s not even clear that it routinely recommends doing so. That’s a problem.
In England, OfS says that as part of its normal regulatory approach it considers the “number and pattern” of complaints to the Office of the Independent Adjudicator (OIA) and uses that information to inform its assessments. What we don’t know is whether complaints that involve groups of the sorts OIA summarises here are used to trigger investigations that could then lead to widespread redress.
We also don’t know if anything at all came of OfS’ January 14h commitment that it would ensure that universities do all they can to deliver the teaching they have promised to students and alternative arrangements where this is not possible, which it said may include putting on extra lectures, repeating parts of the course, or fee refunds / compensation.
We don’t know if any students will look at the settlements and payments on offer from OIA and resolve to go to the courts. And the summaries here still feel like overhangs from last academic year – there must be lots more to come.
Oh you’ll pay
There ought to be major implications here. Any programme that offering a range of co-curricular experiences that just got cancelled. Science courses that were doing lab work through box sets and written assignments. Creative arts providers of all stripes that couldn’t do things like install a kiln or a sprung dancefloor into everyone’s bedroom. The list is almost endless, and plenty of students ought to be entitled to compensation if we run the lines on the graph along.
In an ideal world, DfE would now publicise these case summaries to the hills, and OfS would create resources for SUs to pump out to students that highlight the rights implications. A government fund would now be created that allows providers to take the principles enshrined in the OIA case summaries and proactively offer compensation and extra experiences to students as a result. We’d also offer an amnesty on the usual deadline for complaints to allow students who missed out the first time around to raise what they missed out on.
But we won’t.
What we know is that providers offering lots of practical and vocational programmes (or important components thereof) found it especially difficult to offer something broadly equivalent, but no government decided to compensate them to compensate students. For whatever reason, when the crunch came, we punched down.
It all means that the students undertaking practical and vocational programmes (or important components thereof) were hit especially hard during the pandemic. Few will have made a formal complaint (who wants to be marked as a troublemaker ahead of being marked) and those that did will have had to endure plenty of hurdles along the way before the OIA agreed with them that they’ve been treated unfairly.
This won’t be a row you’ll hear in public, but just as at the start of the pandemic, the sector will mutter that all of this is the government’s fault for not funding lower fees, compensation and extras. And the government will mutter that providers are independent and shouldn’t have made promises they couldn’t keep, and compensated students accordingly. “Six of one, half a dozen of the other” my mum used to say – but make no mistake, it’s students that will pay.