Out-Law Guide | 29 Sep 2020 | 9:14 am | 9 min. read
A number of higher education providers are grappling with clusters of coronavirus within halls of residence, and facing resultant calls to support students forced to self-isolate, as well as others who could miss out on face-to-face learning and social gatherings in light of restrictions already imposed or being mooted.
While many providers have invested heavily in measures designed to control the spread of coronavirus on campus and in preparing blended learning plans in the event that teaching could not take place in traditional lecture theatres and seminar rooms, recognising that, until a vaccine for Covid-19 is found, we are likely to have to continue living through restrictions on everyday life.
The disruption to student life – potentially throughout winter and into spring – raises legal issues that universities will need to manage carefully as the institutions re-open for the 2020/21 academic year.
The need to self-isolate on campus will be extremely concerning and possibly distressing for many students, particularly if it is their first time away from home or they have pre-existing mental health difficulties or anxiety. Many will be locked down in close proximity with other students whom they have never met before and may not get on with, which may exacerbate the issues.
Higher education providers need to ensure they are supporting students in self-isolation. In line with Department of Education guidance, the minimum support should include ensuring students have access to full online learning, pastoral support, including mental health and wellbeing support and access to food and washing facilities. In addition, the availability of alternative accommodation to address any need to quarantine infected student to minimise outbreaks or to provide a refuge for students whose welfare may require a move away from their original shared accommodation must be considered.
The extent of a higher education providers' duties in respect of mental health have not been tested in the courts, and whether a duty of care arises, or has been breached, will depend on the facts of a particular case. However, there is significant risk if an institution fails to meet its duty to its students. This could include claims in negligence as well as internal complaints and referrals to the sector ombudsman, the Office of the Independent Adjudicator for Higher Education (the OIA). Guidance on preventing student suicides has been published by Universities UK, and institutions can also refer to the Student Minds Mental Health Charter.
In the majority of cases, the standard of care expected will be that of an ordinary and competent institution, and those working with students with mental health difficulties, such as tutors, student support teams and counsellors, may be judged against the skills of an ordinary skilled individual exercising that skill. The standard may be higher where trained healthcare professionals are employed to support students. The greater level of basic pastoral support offered the higher the duty owed and the higher the potential risk of negligence if that support is not delivered.
In the case of students with declared or diagnosed mental health issues the duties may be enhanced and therefore a university needs to ensure that all staff, not just those who provide pastoral care, properly understand their roles and their responsibilities towards students with mental health difficulties. This can be achieved by training which enables all staff to have an awareness of when to seek specialist help either within or external to the institution. This may include creating a network across the university, NHS mental health services, social services and the police.
In situations where mental health issues arise, universities must also be careful to ensure that policies and procedures are not enforced arbitrarily against affected students. In particular, in cases where disciplinary allegations are made against a student with mental health for breaches of any social distancing or self-isolation requirements, it may be that alternative approaches are required to avoid any allegations of discrimination under the Equality Act. In these cases it may be appropriate to have the discretion to consider whether in all the circumstances mitigations should apply.
Finally, when considering support to students who are required to self isolate in higher education accommodation, institutions must also keep in mind their obligations around safeguarding to address the risk of harassment and abuse. These are real risks that could materialise while students are spending a lot of time in close proximity with people they do not know and may not get on with during otherwise stressful times.
Higher education providers must ensure that they are not acting in a way that is placing its staff, students or visitors at risk of foreseeable harm or acting contrary to more specific government restrictions which are put in place to manage the risk of Covid-19 infection spreading. In light of the recent outbreaks on campus across the UK it is clear that universities and colleges will need to balance these obligations against other duties to their students – in particular revising contractual promises to offer a certain level of student experience, whether in terms of limiting or totally dispensing with socially distanced events or the elements of face-to-face teaching and learning which they had hoped to offer, to ensure statutory health and safety obligations and government restrictions are met as well as general duties of care to safeguard students at common law.
There may be additional obligations and duties in statute for specific staff or students depending on their characteristics, in particular for disabled and vulnerable persons. Institutions can be held liable for personal injury or death where it is the result of their own negligent act or omission. Restrictions and periods of isolation must be sensitively applied to ensure that in managing an infection risk a wellbeing risk is not created instead.
Separate to the issue of potential claims for personal injury, a provider could be at risk of enforcement action, including criminal prosecution and the potential for an unlimited fine, if it breaches its health and safety duties.
It is unclear how significant the impact of students refusing to follow social distancing guidance on and off campus has contributed to recent outbreaks. However, what is clear is that institutions have a responsibility for their estate and ensuring the conduct of their students whilst on campus. Therefore, the monitoring and sanctioning of student misconduct on campus which results in breaches of restrictions on social interaction will be a central part of managing the risks and setting expectations. Appropriate challenging of misconduct will need to be increased and persistent perpetrators disciplined for those behaviours. It is likely that institutions will be expected to reinforce expectations and adopt a 'zero tolerance' approach to any non-compliance, including suspending or excluding students from their accommodation if necessary. Sanctioning of students should be handled with care – but those flouting the rules need to be managed.
In the summer, as many parts of the UK experienced the lifting of Covid-19 restrictions, there was pressure on institutions to be more flexible in the way they could deliver teaching and learning. This has led to many higher education providers offering prospective students forms of blended or hybrid teaching involving face-to-face contact. Regrettably the increase in Covid-19 infections across the UK as a whole and the present rate of infections across UK universities has meant that a number of universities have already announced plans to move to entirely online teaching during the 2020/21 academic year, or to at least restrict the teaching of certain cohorts to online during the next few weeks pending further developments across the sector.
Although this may be an unwelcome development for many students, this need not be a detrimental development. Some studies suggest that, if properly supported, online learning can be more effective than traditional lecture-based teaching. The success of such a move will hinge on the quality of the institution's support for its students when being transitioned. One of the important lessons learnt from the early days of the Covid-19 pandemic is that many students do not possess sufficient IT equipment, software, Wi-Fi and sometimes skills to be able to access a lot of the digital content offered by institutions.
A Jisc survey of 20,000 students indicated that almost 25% of those surveyed were dissatisfied with the quality of the materials provided and 34% felt that there had not been any proper attempt made to assess their level of IT capability. An NUS survey was even more damning, suggesting that 19% of students did not believe that they had received sufficient support to enable them to work to the best of their abilities, while almost one third of those surveyed said they had been unable to access online education in the last academic term.
A further survey by the Office for Students (OfS), of 1,400 students, found only 56% of students had been able to access appropriate online course materials, with 9% of respondents stating that they had been severely impacted by access issues. Lack of access to basic facilities was highlighted as a barrier, with 71% of students saying they lacked quiet study space; 18% of respondents noting lack of computer access; and 52% of respondents citing slow internet connections had an impact.
Higher education providers will be expected to evidence better support for their students during the 2020/21 academic year. Clearly, this will not only be a matter of improvement and innovation in developing dynamic digital content but also ensuring that their students have access to basic facilities and the skills required to enable them to access that content. Institutions should expect the OfS to be looking closely at this issue – the chair of OfS, Sir Michael Barber, commenting on its survey said that providers have a "substantial" amount of work to do in this area in the new 2020/21 academic term.
When considering support around online learning, institutions must also keep in mind their obligations around safeguarding.
Although, it seems clear that UK students are unlikely to avoid significant further disruption to their studies in the 2020/21 academic year, and it is likely that many assurances by providers that courses would still involve face-to-face elements of teaching and offer some aspects of an in-person student experience will not be met, it would be unreasonable and unfair to suggest that this is the fault of the providers or that they should be liable for compensating their students where there is no evidence that providers have failed to take reasonable steps to deliver the best experience it can in all the circumstances.
The present guidance from OfS and the OIA are instructive on these points. The message to the university sector is that while the OfS and OIA will not be slow to challenge universities where they place heavy reliance on public health regulations and guidance to the expense of taking reasonable endeavours to minimise disruption and mitigate any loss of educational opportunities and outcomes, there is a clear acceptance that if an institution does act reasonably then students dissatisfied with a move to predominantly online delivery of their course would not have grounds to claim for a refund or reduction in tuition fees.
Statements from the Department for Education and, Michelle Donelan, the universities minister in England, have underlined this. There would need to be tangible evidence that the content itself was unsatisfactory. However, while there is some willingness to be pragmatic and it is clear that what was reasonable before Covid-19 will not apply now, the provision must be more creative than what was acceptable during early lockdown, in light of time and resource being available to develop more informed strategies and systems. It is also clear that despite its support for universities which have successfully delivered online solutions that the government still maintains that any complaints fall to be resolved by individual institutions – it has not offered to consider a centralised solution.
The question of potential refunds is, in any event, a complex one. Undergraduates in England do not pay fees – they have loans from the government-backed Student Loans Company. It is the government that sets the tuition fee levels and funds the fees. It would be a question for government whether to should reduce loans in the interim. The problem for individual institutions is that they have been badly hit by Covid-19 and still have to meet costs of facilities and staff and teaching as well as the significant investments they have had to make in ensuring their facilities, both accommodation and teaching, are Covid-19 safe and so in most cases the cost of re-opening and delivering education is the same if not more even if it moves online.
Universities should also consider whether they have adequate insurance coverage in place in case successful claims are brought by students as a result of disruption and also mindful of their reporting requirements to OfS if Covid-19 materially affects any ability to comply with conditions of registration.
03 Apr 2020