Smita Jamdar explains how universities can mitigate the risk of student demands for refunds
The return to campus has been accompanied by near daily reports of student lockdowns and considerable use of online tuition. A recurring theme of the scrutiny to which universities are being subjected is the question of refunds: whether students are entitled to them—in relation to accommodation, tuition fees or both—and when and how any such refunds should be made.
It is therefore worth thinking about the range of legal remedies that students have available to them to pursue what in effect amounts to a refund of some or all the fees paid, even though the relevant laws do not necessarily use that term.
First, students have certain statutory remedies available to them if they believe that they have made the decision to take up a place at university, or to return to study at a university, on the basis of a misleading or aggressive practice.
A misleading practice is one that by false statement or omission misrepresents material information under the contract. An aggressive practice is one that improperly impairs the freedom of choice of a consumer to decide whether to enter into or continue with a contract—for example by exerting undue pressure on them.
Students would have to identify what they felt was the misleading information or aggressive conduct that led them to take up their place—for example, their university knowingly or recklessly overstating the facilities or resources that would be available to them this term.
In such cases, they may have the following remedies.
One—the right to unwind the contract, effectively setting it aside, which must be exercised within 90 days of the course starting. This remedy is therefore only available to new rather than returning students. It involves any fees already paid being returned, and the end of the obligation to pay future fees.
Two—the right to a price discount, the amount of which will depend on how egregiously misleading the information or aggressive the practice was, but which could range from 25 up to 100 per cent. This remedy would be available to all students, including those for whom the right to unwind has been lost owing to passage of time and those who, for their own reasons, choose not to exercise the right to unwind. A price reduction means the ongoing delivery of the service but at a substantially lower price, or potentially for free.
Three—the right to claim any other reasonably foreseeable losses, including related accommodation expenses if they choose to unwind the contract of tuition, as well as damages for distress, anxiety and physical inconvenience.
Failure to deliver
Students may also have the right to a repeat performance or a reduction of the price under the Consumer Rights Act. To establish a right to these remedies, students would have to identify some information, written or oral, that they were given before they accepted the offer of a place and on which they relied in taking up the place.
They would have to show that the service this information described had not been delivered or that the information was in some other way inaccurate—and that this was not covered by any valid and enforceable right on the part of the university to vary the service or deliver something different.
Alternatively, they would have to show that what had been provided by the university was not provided with reasonable care.
In either case, the student has the right either to a repeat performance of the service without additional charge or to a reasonable price reduction based on how far short what has been delivered is from what was promised. Any price reduction should be reimbursed the same way as it was paid. In addition to the remedies of repeat performance or price reduction, students can also claim any reasonably foreseeable losses as described above, but not for distress or inconvenience.
So routes are available to students to secure what are, in effect, partial or full refunds—but to do so, they would have to identify specific assurances and promises made by institutions that had not been fulfilled, or alternatively show that the service they received was not of a reasonable standard.
How to address the risks
What can institutions do now to mitigate these risks? A starting point is to ensure that information for students and prospective students is accurate and up to date. Although it may be too late to prevent claims from already confirmed offer-holders and enrolled students, this will reduce the chances of successful claims from those who accept offers from now on.
Changes to provision and services should be kept under review to ensure that wherever possible, the impact on students is continually monitored and appropriate remedial action is taken as promptly as possible. Particular attention should be paid to those courses and students where the risk of adverse impact is especially high: practical and laboratory-based courses and students with disabilities, for example. Communication of changes needs to be accurate, clear and regular.
Universities should comply with the provisions of any force majeure clause carefully. There may be obligations to give notice or to consult students that must be discharged or the clause may not be enforceable.
Low-level complaints and social media storms can be useful indicators of where future legal claims may lie, and institutions should ensure that quick action can be taken in response to emerging problems. It may be helpful to have an escalation process that ensures problem areas within specific schools and faculties are logged at a central point, which considers whether there are lessons for the wider institution.
Finally, consideration should be given to introducing a bespoke, simplified complaints process, so that every effort can be made to address complaints without the need for external consideration—whether by the Office of the Independent Adjudicator or through litigation. This should be accompanied by clear guidance for decision-makers so that there is a consistent position across complaints, and consistency of findings and outcomes, without the different facts and circumstances of each case being overlooked.
Smita Jamdar is partner and head of education at Shakespeare Martineau.