With more than 100,000 students signed up for group litigation against UK universities over their lockdown and strike-era education, the debate over whether students are consumers has gained a fresh relevancy.
That High Court action might hinge on what happens in a separate writ against UCL, which has recently been told it must settle the claims of about 5,000 students within eight months, with the judge recently urging both sides to settle on compensation terms using mediation.
But if mass litigation really ends up in court, claimants might face difficulties because the university-student contract is so vague that universities could legitimately assert there is no express obligation to teach face-to-face.
It is true that recent class actions in the US, on reaching the appeal courts, are gaining some success, with an implied face-to-face term being identified. One might expect the same to apply over here. Those class-action claims have led, however, to rather modest compensation per student, even if £100 automatically dished out to each of a university’s 15,000 to 25,000 students begins to add up for institutions.
Any success in the UK, however, could by stymied by the all-too-fuzzy university-student contracts found at many universities, which, in some cases, contain egregiously one-sided terms in the university’s favour.
Students might not sign on the dotted line anywhere, but they certainly have a contract with their university: a business-to-consumer contract. In the spirit of the Consumer Rights Act (CRA) 2015 the “trader” (the university) must provide to the “consumer” (the student) the “service” (teaching and examining/assessment) “with reasonable care and skill” and in a “timely” fashion.
The Office for Students as part of its regulatory conditions requires a “higher education provider” to “have regard to” consumer protection law in its dealings with students. It is time the OfS toughened up that condition to “must apply” consumer protection law.
The enforcement of consumer protection for students lies with Trading Standards (TS) and to an extent with the Competition and Markets Authority. Therefore, it is time that these three agencies (OfS, TS, CMA) took a much tougher line with UK higher education plc so that the student is granted meaningful consumer protection. The CMA issued guidance to universities in 2015, which was largely ignored, though it was broadly reissued a few months back. If it is again ignored, it should get “heavy” with universities.
At present there are three major areas where students have good cause to feel aggrieved about their treatment at the hands of universities. They also have good cause to feel let down by the three agencies.
In addition to the shift from face-to-face teaching to online lectures and seminars, there is the loss of teaching caused by industrial action. Such action leads to breach of contract by the university and the university is not able to invoke a force majeure exemption of or limitation of liability clause; such a clause will almost certainly be an unfair term under CRA15.
In practice, it means universities should be automatically refunding about £150 per week of lost teaching, unless the teaching can be provided at a later date that is reasonably convenient to the student.
There is also the delay in marking caused by industrial action, which again leads to breach of contract by the university. Universities should be automatically offering compensation. So far, three institutions are offering £500 to those graduating without specific degree classifications (the number of such unclassified graduates being, reportedly, as high as between 2,000 and 4,000 at some institutions). All students having to graduate with ungraded degrees should be being offered this £500, but they should not accept it as a full and final settlement since greater compensation will be due if it turns out that the individual, say, later loses a job offer because a degree classification can’t be confirmed by a given date.
And compensation is also due to those students caused similar stress and anxiety by not knowing their year-one marks as they progress to year two: the “trader” has failed to deliver the “service” of assessment in a “timely” fashion: again, there is breach of contract and the CRA15’s statutory right to compensation by way of a “price reduction” seems appropriate (how about £250 per student?).
Of course, a court might award higher figures than these sums, though nobody knows where the figure might land since the student-university contract is very rarely litigated.
If these group actions make it to court, the universities will perhaps assert that their force majeure clauses kick in, with Covid being, as it were, an act of God. Or they might claim that, anyway, they duly complied with the CRA 2015 in making the “material” contractual change from face-to-face by adequately notifying the students before their entry into 2020-21. Universities will reasonably point out that in fact the students ended up with “substantial performance” in that the degrees were anyway duly awarded on time.
All those propositions need to be tested in court as possible defences for the universities, and especially where the type of teaching required could not readily be provided remotely (for instance, courses requiring access to studios, kilns, workshops and so on for in-person practical work).
We need clarification from the court on university-student contracts and the degree to which consumer protection law really does apply. And the OfS, TS and CMA, along with the UUK, the NUS and Which?, should get around the table so that the student-consumer gets a fair deal.
Dennis Farrington and David Palfreyman are the authors of The Law of Higher Education (Oxford University Press, third edition 2021). David Palfreyman is a member of the OfS Board but writes here in a purely personal capacity.
