Student Complaints Arising from the Pandemic
On 2 March 2021, the Office of the Independent Adjudicator (OIA) published its latest set of case summaries designed to demonstrate its approach to student complaints arising from the pandemic.
A wide range of COVID-related issues were covered, including lost teaching time, reduced access to facilities, accommodation costs and disappointment and inconvenience. Although considerable media interest was generated by the recommendation that an international medical student should receive £5,000 for losing the opportunity to gain practical experience, a number of complaints were not upheld, even in part.
How Has the OIA Approached These Issues?
The case summaries show that when addressing pandemic related complaints the OIA will look at particular issues to determine whether a provider acted in a way that the student had the right to expect. In essence, the OIA applies a reasonableness analysis with a focus on fairness. This is not dissimilar to the expectations imposed on higher education providers by the consumer law regime policed by the Competition and Markets Authority.
On the one hand, there will be consideration of what the provider did or did not do. What was done to minimise disruption? How did the provider protect learning outcomes and ensure that what was delivered was broadly equivalent to what was promised?
On the other hand, the position of the student will be evaluated. Were they treated fairly? What was it reasonable for them to expect in the circumstances? What were the consequences for the student where the provision fell short?
Ultimately, it is the balance of these factors that determine whether complaints are justified, partly justified or not justified and whether additional remedies are recommended.
What Was Deemed to Justify Recommending a Financial Remedy?
Those selected complaints deemed justified or partly justified resulted in the OIA recommending payments of between £200 and £1,500 for lost learning opportunities (such as missed teaching and delayed placements and laboratory time). The highest recommended compensatory payment, £5,000, is explained in part by the fact that the student in question paid international tuition fees of £38,000 during the year affected. The factors that led to complaints being upheld included inadequate consideration of the impact of changes on the student, provision falling short of reasonable expectation and the need to reflect the level of inconvenience and disappointment, which in some cases was extremely high.
By contrast, those selected complaints deemed unjustified cited evidence that the provider had considered its actions carefully and taken reasonable steps to mitigate the negative impact on students. In some cases the provider had already offered the complainant an appropriate remedy, such as an apology, and in others it was apparent that the student had not actually suffered disadvantage from the action taken (or not taken).
What Can We Expect Next?
Last summer the OIA indicated that more would be expected of providers as the effects of the pandemic became better understood. Whilst this may be true in principle, the latest case summaries suggest that to date the OIA's response to pandemic-related complaints has remained broadly consistent.
Students must still be able to make progress and achieve their learning outcomes. Providers are still expected to take a variety of measures to minimise disruption and to manage expectation through timely and clear information. Where learning opportunities are restricted or delayed, alternatives must be provided and all affected students should be able to access them. If the effects of disruption and delay cannot be overcome, a waiver of the final instalment of tuition fees has been considered an adequate remedy, as an apology. In more serious cases where it was not possible to deliver what was promised, a financial remedy has been recommended.
It is noteworthy that the largest recommended payment to date, £5,000, was made to an international student, formally recognising the significantly larger financial investment international students make to study here and the disproportionately negative impact disruption can cause. Whilst not particularly significant in isolation, such payments could represent an enormous financial burden for providers in the event that large groups of students are adversely affected and do not consider that they have received value for money, particularly if they are from overseas.
This makes the OIA's proposed creation of a Large Group Complaint (LGC) mechanism of huge potential significance. Itself a response to the pandemic, the LGC scheme is intended to be used by large groups against a single provider where there is a high degree of commonality and the complaints could be considered collectively. The decision-making parameters of the OIA are not expected to change, but if the mechanism leads to even a modest number of large group complaints that result in recommendations of compensatory payments, the financial impact for providers could be very different.
This article is based on an article originally written for and published by LexisPSL in March 2021.