OIA briefing note: Our approach to complaints arising from the effects of coronavirus (COVID-19) - June 2020

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Introduction

We published our first coronavirus briefing note in mid March, alongside some FAQs for students, setting out some issues to think about in terms of possible complaints, as providers started to close their premises and we moved towards lockdown.

The initial crisis period created enormous challenges for providers and students. That initial crisis period has now passed, and the focus has shifted to the new academic year. We think it’s timely to publish some further guidance on our approach to the sort of issues that might arise in the new but still evolving environment. We hope this will be helpful especially to providers and student representative bodies.

What providers could reasonably be expected to do during the initial crisis period, and what students could reasonably expect then, was clearly very different to what we might expect in normal circumstances. But it is reasonable to have higher expectations of providers as we move into the next academic year. The context is still very challenging, but providers have had time to adjust to the emerging situation and to plan and develop their provision for the new year.

It is essential for providers to work with their students to explain the practical constraints they are under, and to listen to and understand students’ concerns and try to resolve them. It is not in anyone’s interests for students to have to raise formal complaints, still less to bring those complaints to us, when it might be possible to find solutions through working together.

Communication

Clear communication is crucial as plans are made for next year and will continue to be important as the national situation continues to change and develop. Students who feel they have been not been told what to expect, or who have had changes imposed on them without explanation or discussion, are far more likely to be unhappy.

Students who have not only been kept informed, but also actively involved in resolving potential concerns and finding solutions will be more likely to accept arrangements, even if they are not what they originally thought they were going to get. Students’ unions and other student representative bodies can play a valuable role in helping with this.

Students need to have as much information as possible about what the year will look like, including what might happen if restrictions are tightened again, so that they can make informed choices.

Students who are continuing with their studies need to understand what will have changed and what they can expect. It will be important to get the agreement of students if significant changes are being made to their courses, and to explain to students what their options are if they do not accept the changes.

As public health guidance evolves over the summer and beyond, providers will need to keep students up to date with how any changes might affect their studies.

Some students may feel unable to continue with their studies because the way their course will be delivered has changed materially, their personal circumstances have changed, or they are shielding or are very anxious. Providers should consider requests for deferrals sympathetically and should be ready to depart from their normal policy where it is reasonable to do so.

Consumer legislation

As an ombuds body we look at what the provider has done, or not done, whether it has followed fair procedures, and whether it has acted reasonably in all the circumstances. We take into account consumer legislation and relevant guidance from the Competition and Markets Authority (CMA), Office for Students (OfS) and Quality Assurance Agency (QAA), and the national and sector context, as well as the individual circumstances of the student’s case. We do not make legally binding decisions about individuals’ rights and we look more widely than the strict terms of any contractual arrangements.

Consumer protection legislation has not been suspended for students. This means that providers still need to deliver learning and other services that are consistent with students’ reasonable expectations. (A student who is studying for the purpose of their trade, business or profession may not fit the definition of “a consumer” in the legislation. But in our view, something that would be unlawful for students who are consumers under the legislation is likely to be unreasonable for those students who are not.)

What students can reasonably expect, and what providers can reasonably be expected to deliver, is likely to change and evolve as circumstances change and evolve, especially if restrictions are tightened again. But providers should be planning to deliver what was promised - or something at least broadly equivalent to it - and to ensure that learning outcomes can be met. It’s unlikely to be reasonable not to do that, especially now the initial crisis period has passed.

Where providers have not or decide they cannot deliver what was promised they will need to consider how to put that right. A blanket refusal to consider tuition fee refunds in any circumstances is not reasonable. There may be groups of students that are particularly affected, and providers should take steps to identify those groups and address their issues. But they also need to consider concerns raised by students about their individual circumstances.

Exclusion clauses

Some providers may have force majeure clauses that refer to disruption caused by a pandemic. During the initial crisis period providers may have been able to rely on those clauses to avoid legal liability for not delivering on their contractual obligations. We will look at the wording of the clause and whether it meets the requirements of consumer law, the precise reason the provider was not able to deliver the teaching, whether the provider has taken appropriate steps to mitigate the disruption, and whether it is reasonable for the provider to rely on the clause.

Clauses that attempt to exclude a provider’s liability for failing to deliver the educational service to the required standard, and those giving the provider a wide discretion to change significant aspects of the course of study, contrary to students’ expectations, are unlikely to stand up to scrutiny.

Even if a provider might have been able to rely on this type of clause during the initial crisis period, in our view it is unlikely to be reasonable to rely on it in relation to students who are starting or continuing with their studies in the autumn. Providers have now had time to prepare and plan for the longer-term effects of the pandemic, and so those effects are unlikely to be considered an extraordinary event outside of the control of providers that is preventing them from delivering the service they have promised.

Course delivery

Government and OfS guidance (in England) has emphasised the importance of preserving quality and standards, however providers decide to deliver their teaching.

The QAA’s COVID-19 Guidance: Preserving Quality and Standards Through a Time of Rapid Change says:

We can look at complaints about what was promised and what was delivered, but we can’t look at concerns that involve academic judgment such as the quality of academic provision.

In this context, we can consider (for example) a complaint that a provider did not cover subject areas that it said it would; that a student’s supervisor was unavailable; that a student didn’t benefit from teaching because they could not access it, or the delivery method did not work for them; that a provider did not support its students adequately; or that the provider did not follow a reasonable assessment process.

But an assessment of the quality of what has been delivered is likely to involve academic judgment, which we can’t look at. Academic judgment is not any judgment made by an academic; it is a judgment that is made about a matter where the opinion of an academic expert is essential. This means that we can’t look at a complaint that teaching was not of an adequate academic standard; that an online teaching session was just not as good as it would have been face to face; that the student’s work was worth a higher mark; or that a postgraduate student did not get the right academic guidance from their supervisor.

We will look at whether what the provider has done is reasonable in the circumstances – so reasonable delivery in the middle of lockdown is likely to look different to reasonable delivery in a more managed and planned environment.

Many courses require face-to-face interaction that makes social distancing very difficult to maintain. We will look at relevant guidance from Professional Statutory and Regulatory Bodies as well as QAA and OfS and others when we are deciding what is reasonable. We will also consider examples of good practice in other providers.

Some students are more seriously affected than others

Arrangements that might work well for many students may not work for all and providers should be proactive about identifying and supporting students who may need additional help. Students are likely to encounter all sorts of accessibility issues. Online teaching arrangements may not work for some students with learning or processing differences. Some students will be shielding or have caring responsibilities that continue even after lockdown restrictions are eased. Some will have poor internet connection – some will not have access to IT equipment at all. Some will simply not be able to work effectively from the space they are living in.

Careful thought and planning is needed to address these issues in advance, whenever possible. Planning that starts with meeting the needs of those likely to have accessibility issues is more likely to result in arrangements that work for everyone.

Providers also need to seek out students who are not engaging with online delivery, and those whom they know may find it difficult because of their individual circumstances.

Some students such as those who had planned to study abroad or take up industry placements may be facing additional uncertainties. Providers may need to give those students more support and advice, for example on accommodation and financial issues.

A rigid adherence to regulations and processes is unlikely to be fair: empathy and flexibility are key.

Managing the process

For many providers, navigating the initial crisis has taken all their available resources, and the complaints and appeals functions may have been by necessity less of a priority. But many students have real concerns about how the ongoing situation has or might affect their studies and providers need to engage with those concerns. For many providers there will be a lot of pressure on finance and staff, but providers should not undervalue support and advice services when making difficult decisions about resources. Alongside an engaged and effective students’ union or other student body, those support and advice services will play a crucial role in resolving students’ concerns.

In some cases, it may be difficult to consider a student’s complaint until parts of their course that have had to be rearranged can be delivered. For example, a field trip or practical teaching may need to be postponed to the next academic year. It may be reasonable to separate out the parts of the complaint that can be addressed immediately, and respond to those parts that the provider expects to resolve in the coming months at a later date.

We know that providers may not always be able to meet the timeframes set out in our Good Practice Framework: handling complaints and academic appeals. It may be pragmatic to shorten or streamline the usual complaints and appeals processes, especially if there are a large number of similar cases to manage. But it’s always important to keep students informed about the process that is being followed and any potential delays.

Our Recommendations

Where we decide that a complaint is Justified or Partly Justified we normally make Recommendations to the provider. These might be designed to put things right for the individual student, or to help the provider to improve its processes or practices.

We may decide that a provider has not taken reasonable steps to minimise the academic impact of disruption on a student, has not done enough to make up for the student’s missed learning opportunities, or has not supported the student sufficiently. In many cases it may be possible to make Recommendations to the provider to take practical steps to put things right for the student. Where that is not possible, or the practical remedy is not sufficient, we may recommend that the provider refunds a proportion of the student’s tuition fees. We may also make other Recommendations, for example, to pay compensation for distress and inconvenience that the student has suffered.

Normally, when we recommend a refund of tuition fees, we ask the provider to pay the recommended sum to the source of the fees. Often that will be to the Student Loans Company.

In exceptional cases we may decide not to make any Recommendations even if we decide a student has a valid complaint, because there is no practical way to put things right.

We always give providers and students the opportunity to comment on our proposed Recommendations before we confirm them.

We are unlikely to uphold a complaint and make Recommendations where a provider has delivered learning opportunities flexibly so that the student can achieve their expected learning outcomes, has ensured that the student has not been disadvantaged in their assessments, has supported the student to access what was available, has listened to and tried to resolve the student’s concerns, and has communicated clearly throughout.