Students, especially those who started university this year, may feel frustrated at the reduced experience they have had this term. Covid has denied first years the rite of passage of freshers’ week and hours of face-to-face teaching. Earlier this month, the government announced that all students in England and Wales should return home during a travel window between 3 and 9 December, and receive the rest of their testing online.
Might students who are unhappy about what they’ve received have any claim for compensation?
There is limited good news from the lawyers: some may be able to claim – especially if their course involves a substantial practical element and their university encouraged students to come this year with promises they have not been able to fulfil – but it won’t be quick or easy.
Christopher Mcfarlane, an associate solicitor at specialist education law firm Sinclairs Law, explains that university students are essentially consumers, who have entered into a contract with their institution. Contract and consumer law, he says, entitles them to the service that was advertised. But understanding the terms and conditions they signed up for can be hard, and students need to check a variety of sources. These may include an agreement they signed with the provider, the handbook and prospectus, as well as statements made online.
He says: “Look at what you were promised by the university, particularly if it said that you’d be getting certain standards of teaching and put out messaging encouraging students to come, indicating that it would not be affected by Covid. If it is not fulfilling the duties agreed to and not providing the services it promised, replacing them, or offering the chance to do them at a later stage, there may be a claim.”
Jack Rabinowicz, a solicitor at the law firm Teaher Stern, says students need to formulate how and what they have lost. He suggests that a damages claim based on a breach of contract is most likely for students doing practical courses, like medicine, sciences, engineering or architecture, where there is a lot of practical work in hospital, labs or on site that is essential to the course.
If a student or students can demonstrate that the quality of what they are receiving is demonstrably inferior to the normal course and may significantly devalue their degree, he suggests they may be able to claim compensation or a reduction in their fees.
But he cautions that providers may have defences to any action, arguing that the pandemic was an act of God that they could not have foreseen, and that faced with the problem, they made reasonable adjustments. They could, he says, claim that the quality of tuition being given online is no worse than in a lecture hall, especially where they have provided more and smaller seminars or tutorials to make up for any perceived deficiencies.
Universities, says Rabinowicz, could argue that the effect of the pandemic is likely to be short-lived in the context of a three-year degree, or that any loss suffered is unmeasurable.
They may also assert that they were following the government’s advice by encouraging students to return to university or begin their first year during the pandemic.
But, Rabinowicz adds: “The government’s advice does not necessarily get the unis out of jail.” They ought still to have carried out their own risk assessments, noting that some providers did not encourage students to return to campus, which meant they avoided wasting money on rent or other expenses.
Where the adjusted teaching method provided to cope with the pandemic does not meet the needs of students with a disability, and the institution has either failed to consider them or refuses to make it accessible, there may be a claim for judicial review, suggests James Betts, an associate solicitor at Irwin Mitchell. But, he says, it is fairly unlikely and a remedy of last resort.
If all internal university complaints processes have failed to resolve the problem, Betts suggests a complaint to the Office of the Independent Adjudicator for Higher Education, noting that they must be brought within three months of the decision being challenged.
It is unlikely that students will be able to claim for the loss of the full university experience. “Universities aren’t selling a student experience,” says Mcfarlane, and the concept is too abstract without a quantifiable value.
