The new lockdown legal restrictions are now in place

The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 are now in force, laid before Parliament at 5.30 p.m. on 5th January 2021.

Caveat – this is England only (although there’s a note on Scotland below). It’s always important to look at the law itself rather than just the guidance from the Department of Health and Social Care, the Cabinet Office or DfE (and whatever other sub sectors universities and students unions knock about in).

What the statutory instrument does is basically a) tip all of England into Tier 4, and b) make Tier 4 itself tighter in terms of the exemptions that were in the restrictions on both gatherings and movement.

The first thing to note is that nothing changes in here for higher education. Nothing affecting the sector or students specifically appears to have been amended.

That is nevertheless notable for all sorts of reasons that we looked at before Christmas. For example, DfE guidance says:

Catering services for catered halls can continue to provide that service, where there are no alternative facilities available to students: for example, where a student has no alternative place where they can eat or prepare food. All other catering outlets on campus would need to follow the. takeaway only model, and you should take your food home to the place where you live to consume it.

But the legal exemption on facilities that are legally allowed to open that was in the November lockdown and which survives always included “cafes or canteens at a higher education provider”. So no, you don’t have to make commuter nursing students that are on campus all day stand outside in the snow to eat their lunch. They can sit indoors on their own instead.

You’ll recall that gatherings are allowed (when following the guidance, risk assessed etc) for “a course of study or essential life skills training [!] provided by a higher education provider”. When that wording emerged before Christmas it was narrower then previous iterations which were merely about education – but again that’s not been amended this time.

Note that the provision/delivery of charitable services still represent exemptions in the movement and gatherings rules (technically that allows a lot of SU stuff to operate, but the optics would be bad) and “support groups” are still allowed, which I’ve talked about before.

There are other implications for students of course. Open air recreation is now banned for example (although outdoor exercise is not – so you can’t have any fun doing it, basically) – but things in the guidance like a time limit on outdoor exercise, a geographical limit on outdoor exercise are only guidance.

On students moving house, exception 15 hasn’t changed. So students who study away from home are still legally allowed to move (back) to their student housing as long as they do so before 8th February 2021.

Where this gets interesting is what CMA said earlier this year in its statement on coronavirus, consumer contracts, cancellation and refunds. For example, it argues that:

Consumers will normally be entitled to withhold payment for services that are not provided by the business or which the consumer is not allowed to use because of lockdown laws”

(my bolding)

There are two things here. A student might argue that some aspects of their promised delivery/facilities/services are not being provided which would mean (some/part of) “services not provided”. They might also argue that there’s some things that the student consumer is “not allowed to use because of lockdown laws” like their housing or the library or whatever.

Unhelpfully, the CMA doesn’t really address service bundled/packages where some aspects of the service(s) can’t be offered. Nor does OfS, OIA etc. But students aren’t just buying a “course” or the “learning outcomes” – and that makes apportionment tricky.

And weirdly in my view, even though CMA says “consumers will normally be entitled to withhold payment”, the question is – how? They explicitly can’t ask the SLC to do that [withhold payment in part] – they either have withdrawn or they haven’t. So SLC would just pay anyway (and this year they’ve paid providers upfront). That puts these consumers at a major disadvantage.

But on accommodation – if students who study away from home move before Feb 8th, they’re going against guidance from DfE and their university. And it doesn’t look lawful to move after Feb 8th. In fact after Feb 8th we seem to be in “consumer is not allowed to use because of lockdown laws” territory for all student accommodation, not just university halls.

It would be lovely to get some decent advice for students on this. Does it mean students can cancel their housing contract? Does it mean they’re due a rebate? But OfS always says “well it’s accommodation, so try CMA or the CAB”. CMA sent us off to OfS and OIA and referred us to this fairly useless advice from the CAB. Ping! Pong!

By the way – nerdy technicality alert. In the Scottish legislation before Christmas, an exemption was created for student movement as follows:

facilitate the formation of an end of term household”

No corresponding exemption has been created to allow students to move back, although they can still move for education. If their course is running online for the time being, that does seem to imply that students studying away from home can’t move back yet legally…

As ever let us know in the comments below if you think we’ve missed anything!

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