Out-Law News | 05 Mar 2021 | 11:28 am | 3 min. read
Recent decisions by the Office of the Independent Adjudicator for Higher Education (OIA) offer guidance on the approach it will take to determining student complaints against their universities about Covid-related disruption, an expert has said.
The OIA, which hears student complaints against higher education providers in England and Wales, has published a number of anonymised summaries of cases relating to disruption during the 2019-20 academic year on its website. Only five of the 16 newly-published complaints about the move from face-to-face to online teaching were found partly or fully justified. They included one in which an international student's clinical placement was cancelled, with no alternative learning opportunities provided.
Complaints generally take some time to reach the OIA, as a student must first exhaust the institution's internal complaints mechanism. Universities expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law, said that more complaints could be expected given the continuing disruption to student studies and no moves by the government to discount student tuition fee loans as a result of the pandemic.
Where institutions have taken reasonable steps to mitigate the effect of restrictions and ensure delivery of learning opportunities in an alternative way, there is unlikely to be any justification for awarding compensation
"The case summaries published by the OIA are an important indicator of the approach that will be taken in cases where students have suffered genuine and irreversible disruption caused to their higher education experience caused by the coronavirus pandemic," he said.
"Where institutions have taken reasonable steps to mitigate the effect of restrictions and ensure delivery of learning opportunities in an alternative way, there is unlikely to be any justification for awarding compensation. It is only in the exceptional cases, particularly involving final year students, where the provider has been unable to put in place mitigations which fully address any lost learning opportunities or outcomes that the OIA has recommended payments for disappointment," he said.
"However, it is clear that there remains an 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 or indeed any compensation for disappointment or inconvenience. The fact that other cases have been found not justified or eligible by the OIA indicate that may institutions have been extremely creative in ensuring that their students have continued to receive teaching and learning despite the restrictions on face to face delivery. Our own experience suggests that providers have invested heavily in both developing alternative delivery online and creating safe physical teaching environments where it is critical that students on practical healthcare courses to have access to face to face teaching and placements," he said.
Sladdin said previously that universities should consider an independent third party audit of their compliance with consumer protection laws. Higher education regulator the Office for Students (OfS) wrote to institutions last month asking them to review their compliance with their legal obligations and with the regulator's own guidance on consumer protection law.
The OIA received a total of 2,604 complaints in 2020. It has received around 500 complaints relating to universities' handling of the Covid-19 pandemic to date, and expects these to continue as students have up to 12 months to refer a dispute after exhausting the provider's internal complaints process.
The summaries are the second batch published by the OIA since the pandemic began. They include complaints about having to pay rent on provider-owned accommodation while not living in that accommodation due to coronavirus restrictions; the cumulative effect of disruption caused by industrial action and the pandemic; and where providers have been unable to offer practical experience that was an important part of the course.
One complaint, by a student on a one-year healthcare related Masters programme, was partially upheld by the OIA. The programme normally involved a lab-based practical research project, which was cancelled. The provider put in place alternatives, but these could not deliver the practical experience that had been promised. The OIA recommended that the provider pay the student £1,500 in compensation for "inconvenience and significant disappointment".
However in another, earlier, complaint the OIA accepted that an international student was not entitled to a reduction or refund in fees despite the move to online learning and perceived loss of student life on campus. In this case, the OIA held that there was a need to comply with public health advice and the move to online learning was fair and reasonable. The student was continuing to receive teaching and learning opportunities online and was not academically disadvantaged and as such the complaint was not justified.
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