University challenged: the legal implications of the rise of student consumerism

Posted by Watson Burton LLP on 10/10/17


Watson Burton Partner Anthony Rance looks at the legal implications for Universities if the student is now considered a consumer.

In 2010 it was announced that Universities in England and Wales would be permitted to triple their annual tuition fee from £3000 to £9000. Commenting on this proposed increase to the tuition fee cap, the then Minister for Universities, David Willetts, said that it was a “progressive” reform which would “put Universities’ finance on a sustainable footing with extra freedoms and less bureaucracy”. Mr Willetts argued that the trade-off for this increased level of student funding was that it would bring “greater choice for students with a stronger focus on high quality teaching”.

Whether or not rising tuition fees have brought about the intended increase in choice for students is open to debate, not least because many institutions charge the top level of permissible tuition fees. However, when coupled with recent changes in legislation (in the form of the Consumer Rights Act 2015) and also guidance issued by the Competition and Markets Authority, there can be little argument that the higher education sector has undergone a period of unprecedented change in recent years, with students increasingly identifying themselves as “consumers” of higher education services. It is a change which has brought a whole new range of issues to the door of many higher education institutions (HEIs) and left many asking the question: “what are the legal implications if the student is now a consumer?”

“For as long as the student is in the position of a consumer easy access to relevant, robust legal advice will remain high on the agenda”
Given the cost of higher education, students have become more demanding, expecting a greater level of service, a better learning environment and the acknowledgement and respect of their rights as consumers. Value for money (if not added value) is, for many students, absolutely key.

Unsurprisingly, this has led to students being more likely to challenge perceived injustices that may have an impact on their education, and importantly on their future careers, and to question the level of service they are receiving from HEIs.

According to figures published in May 2017, the Office of the Independent Adjudicator for Higher Education (OIA) received 1517 new complaints in 2016, with 150 students receiving compensation totalling over £350,000 as a result of the OIA’s intervention. Whilst OIA complaint numbers have in fact been decreasing since 2014, such a trend is not necessarily because fewer students are bringing complaints against HEIs. Rather, anecdotal evidence suggests that it is because more complaints are being resolved internally and at an earlier stage by the HEIs themselves. Either way, complaint numbers are still significantly higher than they were before 2010.

Complaints can relate to a variety of issues, such as those affecting a student’s academic status (be that the mark given for an assessment, progression between years, or final degree results), discrimination, welfare or accommodation. Notably, the recent OIA figures have shown an increase in complaints about service issues, such as the accuracy of prospectus and other course information and the availability and quality of supervision (with an 8% increase from 2015’s figures).

In one high profile example that hit the press in January 2017, it was confirmed that the University of Oxford is to face a trial relating to a £1 million compensation claim by a former student, Faiz Siddiqui. Mr Siddiqui failed to graduate with a first-class degree, which he blamed on (amongst other things) “appallingly bad” teaching of a specialist subject. The case came to the public’s attention following a failed application by the University to strike out the claim, either on the basis of its merits or because it was time-barred (given that Mr Siddiqui graduated in 2000 yet waited until 2014 to issue his claim). The case will be of particular interest to the higher education sector since it represents an example of the standard of a University’s teaching being subjected to judicial scrutiny, whereas the Courts (and the OIA) do not typically interfere with matters of academic judgment.

“Given the cost of higher education, students have become more demanding, expecting a greater level of service, a better learning environment and the acknowledgement and respect of their rights as consumers.”

So, with a student population that is increasingly aware of its consumer rights, how can HEIs protect themselves against the damaging effects of student complaints and related claims?

One of the simplest ways is the implementation of a legal ‘health check’ to ensure that policies, procedures and terms and conditions are clearly drafted, kept up to date and consistent with best practice. This straightforward review can be an important first step in minimising the scope for legal challenge in the future. Other simple but effective steps can include ensuring that all staff within the HEI:

• Have a good understanding of the HEI’s procedures, particularly those involved in the conduct and determination of complaints (including understanding which procedures to use for which scenarios);
• Are aware of and alive to the risks of changing course content part way through a student’s studies and/or how the delivery of that content and the availability of related facilities will be measured against the contents of the HEI’s promotional material;
• Understand the importance of effective communication and, where necessary, promote the early resolution of concerns before complaints escalate to a more formal footing; and
• Understand the importance of record keeping and the benefits of ensuring that decisions are recorded in writing, are properly reasoned and are based on evidence.

None of these steps are particularly novel or inventive, but they can be a useful way of insulating the institution from the impact of complaints.

Finally, given the ever-present risk that complaint outcomes may be challenged externally (either through the OIA, the Courts, or both), it can be important for HEIs to have ready access to specialist legal advice. Whilst you might think that an article written by lawyers would say that, the reality is that consumers have a variety of legal rights which must be recognised. For as long as the student is in the position of a consumer easy access to relevant, robust legal advice will remain high on the agenda as part and parcel of successfully managing the relationship between HEIs and the students they serve.

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