What is notable in Independent Adjudicator Felicity Mitchell’s latest blog on the site on complaints?
First, Mitchell reminds providers that they should be seeking agreement with individual students about changes to courses or wider provision. OfS framed that issue in consumer law terms as needing to seek “express consent” about changes to any of the “material information” for both continuing or new students – Mitchell frames that approach as one that would be “reasonable to expect” as this would be “in everyone’s best interests”. Either way, the meaning is the same – providers need to write to all students individually as soon as possible asking if it’s OK to make changes.
Second, Mitchell reaffirms the OIA view that so-called “Force majeure” clauses – used to avoid legal liability for not delivering on obligations last term – are unlikely to be usable for this purpose next term. Now that providers have had some time to plan for the longer-term effects of the pandemic, “it is in our view unlikely to be reasonable for providers to rely on exclusion clauses that allow the provider to make significant changes to what it has promised, or not to deliver it at all, in the new year.”
Third, OIA will take a dim view of blanket policies on things like refunds or deferrals. On the former, a provider had declined a request for a partial tuition fee refund from an international student on a course involving clinical teaching that was postponed, citing government guidance to universities. Mitchell castigates the provider for not engaging “at all” with the individual student’s complaint. On the latter, Mitchell says that it’s reasonable for students to be considering deferring or interrupting their studies, and says that providers should be “ready to depart from their normal policy where it is reasonable to do so”.
Later Mitchell repeats the OIA’s position (set in statute) on complaints surrounding academic judgement – but there’s a sting here. If a student that could access all of the online teaching in April and May felt it was not up to standard, OIA could look at whether all the expected elements of the course were covered, and at things like tutors not being available or an examiner being biased against them. But while a complaint about the academic quality of the teaching would be ruled out because it concerns “academic judgment”, Mitchell says that OIA “could look at what the provider had done to check the quality of the provision”. This could present a real headache for providers who effectively abandoned processes and policies to assure the quality of their teaching in April and May.
There are two things missing from the missive. The first is any reflection on how complaints about non-teaching components not being available will be treated. When OIA has suggested compensation in the past, it has tended to regard teaching hours as accounting for 50% of tuition fees. If a student complains that the services and facilities they were “sold” were taken away in March – with no attempt to make up for that with consultation, options, or adequate equivalents – would OIA look at complaints surrounding that “other 50%”?
The second surrounds a hot topic in many of the internal working groups right now – the adequacy of replacements for lost synchronous teaching hours. A major gripe from students in all the surveys has been the switching of live lectures and seminars for packages of videos, reading and discussion forums. Academically some say this asynchronous stuff both worked better last term and will be even better next term; but they are often viewed dimly by students who say they’re not what they’ve paid for.
Exeter VC Steve Smith sums this conundrum up neatly here:
And whilst student surveys state how much students like formal contact time, attendance rates at large group contact events tend to drop over time, especially when the lectures are recorded and can be accessed on ‘catch-up’. Pedagogic literature demonstrates the value of supported independent learning and the improved accessibility of asynchronous models of learning.
The question is – if there’s a switch like this, is that a legit complaint about broken promises, different delivery, and consumer law (and so allowed) – or a complaint about academic judgment on quality (and so not allowed) – or both? Students and providers will need to know, pretty sharpish – because it’s likely to be something they fall out over when students get those letters OIA and OfS say providers should be sending in a few weeks.