Covid-19 and universities: can students get their money back?

Posted: 06/10/2020

As thousands of students returned to university last month, and others began their undergraduate journey, it would be safe to say that few expected a traditional ‘fresher’ experience. Nevertheless, many still chose to move from their homes and embrace an independent lifestyle, perhaps with a glimmer of hope for some normality. Yet, barely even a couple of weeks in, the emerging freshers' tales are radically different to those of previous years, with lockdowns being enforced across numerous halls of residence and in-person teaching being replaced with online lectures.

It is not surprising then that refunds have become a hot topic for students and university course providers. Michelle Donelan, Minister of State for Universities, has backed universities on charging full fees, though courses should be fit for purpose. But where does the law sit in all of this?

Consumer legislation

In the United Kingdom, university students who pay tuition fees are protected by the Consumer Rights Act 2015 (and the wider consumer protection regime). Therefore, anything promised to a student and taken into account by them when accepting their place is a term of the contract. If the course later transpires to be different to those promises, the student may have a claim for breach of contract. If there is a breach, students have a right to retake part of the course or receive a fee refund (up to the full amount). Of course, not every change to a course will entitle a student to those remedies, as indicated by the Office of the Independent Adjudicator for Higher Education (OIA) when it set out how it would handle complaints. Indeed, if teaching is adequately delivered virtually, students may struggle to argue that they are entitled to a refund. However, if lectures and tutorials are cancelled or are taking place less frequently than promised, or if the quality of the teaching is substandard, students could enforce their consumer rights.

Hosting all lectures and tutorials virtually will not automatically entitle students to a partial fee refund, even if they were initially promised some in-person sessions. That said, the impact on the quality and content of teaching will vary among courses. Take the humanitarian subjects, for example – a lot of those, with the right attention, innovation and resource, can be taught effectively virtually, whereas laboratory-based courses will prove harder to deliver. In recognising that, the Office for Students (OfS) has advised that providers are expected to consider each student’s claim for a refund on a case-by-case basis; a blanket policy is unreasonable.

Exclusion clauses

Some providers include a ‘force majeure’ clause in their terms and conditions with students. A ‘force majeure’ clause aims to limit the obligations and liabilities of the parties to a contract if a specified event occurs, which is out of the parties’ control and prevents one or both parties from being able to carry out their contractual obligations. Whether the coronavirus pandemic falls within the scope of such a clause depends on the wording. Also, in contracts with students and other consumers, the clause must be reasonable. If the clause gives the provider a wide discretion to make substantial changes to a course (such as content or structure), it is unlikely to be reasonable.

During the first wave of the coronavirus outbreak, providers might have been able to rely on this type of clause to retain course fees when they were unable to provide services. However, the OIA states that it is unlikely to be reasonable for universities to now rely on it for students enrolled this autumn. The OIA’s view is that providers have had a decent period to prepare new measures and resources to be able to deliver what they are promising, so it is questionable as to whether the pandemic can be regarded as preventing them from delivering on quality.

Complaints

If students are not satisfied with the service, they can complain to the university directly. If the issue is not then resolved, they can raise their concerns with the OfS, which will carry out an investigation into the matter.

Key takeaways

Here are some key takeaways for course providers to consider in preparing for, and protecting against the risk of, fee refund claims:

• Make sure your website and other materials have been brought up to date for prospective students. Material information on course content; delivery; assessment; location; what proportion of their teaching may be delivered online; how long this could last for; and what changes may need to be made in response to changing public health advice should ideally be covered.
• Check what you offered students and what you are able to currently deliver - whether there is a gap will affect how you respond to refund claims.
• Keep current students informed as much as possible, ensuring that all guidance on course structure and content is clear. Importantly, make sure students are informed whenever circumstances change and seek the students’ consent or provide them with options where possible.
• If students are required to self-isolate, make sure they are told how they can continue with their studies and put procedures in place to facilitate their learning. Also, importantly, ensure they know how they can access resources for support and welfare.

This article has been co-written with Hannah Fricker, a trainee solicitor in the commercial, IP and IT team.

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