The COVID-19 pandemic has seen universities conduct most teaching through online means, be it online lectures, virtual seminars, or pre-recorded practical activities. The word ‘unprecedented’ has been used widely to justify these changes to education provision, but the frustration amongst students continues to be widespread. Many students feel ignored by the Government and cheated by their university, as constantly changing guidelines fail to provide the desired educational experience. But what, if any, remedies can students pursue? This piece discusses the procedure for challenging university decisions and policies, before looking at and commenting on the likelihood of success for COVID-19 related claims.
Should a student seek external adjudication on a matter related to the provision of higher education, they should first issue a complaint to the Office of the Independent Adjudicator (the OIA). The OIA is an independent body created by the Higher Education Act 2004, tasked with running the complaints scheme for higher education students in England and Wales.
Under 4.1 and 7.1 of the OIA Scheme Rules, any student can bring a complaint to the OIA about “anything their higher education provider has done or failed to do”, provided that the university has already considered the matter. It naturally follows that any decisions made by a university in relation to COVID-19 could be made the subject of a complaint to the OIA.
Several judicial decisions have emphasised the need to pursue a complaint with the OIA before bringing judicial review proceedings. In Zahid, Hickinbottom J noted that “… where there is a complaints procedure as provided by the 2004 Act through the OIA, the court should be slow to become engaged with issues arising out of the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion”. If a student is uncertain as to whether their complaint falls within the jurisdiction of the OIA, the Court of Appeal in Mazz Rafique-Aldawery recommended that they write to their higher education provider (like their university) detailing their complaint and noting the potential need for judicial review should the OIA not provide a suitable remedy. In doing so, the student avoids the risk of losing judicial review proceedings due to the typical three-month limitation period. The letter puts the higher education provider on notice of the complaint and can subsequently be filed for the court to take account of when deciding whether to issue an extension of time.
Complaining to the OIA is free, compared to judicial review’s £154 charge for permission to apply and the related costs of legal fees. As per rule 13.2, the final decision will be made by the OIA within 90 days of receiving all relevant information, other than where the matter is “highly complex”. These cost and time advantages result in the OIA process generally being less complicated and more accessible than judicial review. Therefore, it is no surprise that the process is the preferred approach for students.
Beginning with some good news, the OIA’s second coronavirus briefing note clearly states that “a blanket refusal to consider tuition fee refunds in any circumstances is not reasonable”. It follows that every student is entitled to request a tuition refund from their university, either in part or for the full amount, and crucially, that every student is entitled to have their request considered.
Less fortunate is the restrictive approach that the OIA has taken regarding COVID-19 related claims, and related refusals to recommend refunds. The same briefing note recognises a need for universities to offer the education that they promised or at least something “broadly similar to it”, particularly considering the sufficient time to make alternative plans before the start of the academic year. However, in several November 2020 decisions, the OIA made clear that simply moving lectures and other forms of teaching online did not breach this requirement. In declaring a complaint to be “not justified”, the OIA emphasised how the university had clearly communicated its plans to deliver the course in an alternative way, and that any cancelled practical sessions did not academically disadvantage the student. It is thus apparent, to the dismay of many students, that ‘Zoom school’ in and of itself does not equate to tuition fee refunds.
The OIA was, however, keener to declare complaints of the same month “justified”, or at least “partially justified”, for reasons beyond merely teaching being moved online. In a partially justified case, the OIA noted that where a university did not teach four out of a module’s ten topics, teaching was not “broadly equivalent to its usual arrangements”. Similarly, where a project worth 60% of a module was cancelled without a similar research-based project taking its place, the university had not taken sufficient steps to mitigate disruptions to education.
For most students, it seems, there simply is nothing to be done about online education, at least not in terms of legal challenges. However, for any students who may have had modules or courses cancelled altogether, or if personal circumstances mean that disruption to education has not been mitigated (e.g. teaching not being conducted in a disability-friendly format), a complaint to the OIA may not be so doomed. With such complaints having no charge, it may at least be worth an attempt where a faculty has dropped course content or an individual’s circumstances are unique.
As with all public bodies, the OIA’s decisions can themselves be subject to judicial review under the usual grounds. Whilst the substantive grounds of review are not precluded, it is highly unlikely that the High Court will overturn the OIA’s decision. Though less rare for a claim on a procedural ground to succeed, the court will usually show a high degree of deference to the OIA; it took eight years for the High Court to find in favour of a student in judicial review proceedings against the OIA. Even if a successful judicial review was launched, it would not be the administrative court’s role to remake the decision; as with all procedural reviews, the OIA would simply be instructed to make the decision again, fixing their mistake, be it by considering a factor they had not before, following a procedural expectation, or an action based on whatever other ground succeeded. The fact that a successful claim would not only be unlikely but would also rarely result in an altered substantive outcome leads to the conclusion that, ultimately, the high costs of judicial review are probably not worth it.
For many students, the low odds of a successful complaint will be frustrating and serve only to reinforce the idea that students have been forgotten during the pandemic. Whilst researching for this article, I found myself filled with a similar sentiment. Of particular note was the fact that the OIA’s jurisdiction is simply advisory; it makes recommendations, not binding judgments. In light of this, it would be far from radical for the OIA to recommend partial fee refunds in a wider range of circumstances.
However, when examined with wider principles of public and constitutional law in mind, perhaps the OIA’s ‘timidness’ is not as questionable as it may at first appear. The question of tuition fees is quite clearly a financial policy question. It is not even necessarily a policy question for the government or any other administrative body, but rather for individual universities to decide after an analysis of their own provision and financial situation. Were the government to order a blanket rule on fee refunds, applicable to all universities and all students, it is inevitable that students, universities, or both will be less than pleased. Frustration would be even greater were it a quasi-judicial body like the OIA to decide this policy matter.
Of course, higher education provision has been seriously disrupted as a result of the pandemic. It follows that a legitimate argument could be made for refunds to at least certain groups of students (those on practical courses or who are somehow undertaking a ‘year abroad’ at home). But is it really the role of the OIA to respond to this argument? Ultimately, it seems that the OIA has been sensible to advise against blanket refusals for refunds but not dictate when refunds should be granted. Whilst far from a political constitutionalist myself, it cannot be denied that at least some matters are better left for the political realm.
1 R (on the application of Zahid) v University of Manchester  EWHC 188 (Admin)
2 St George’s University of London v R (on the application of Mazz Rafique-Aldawery)  EWCA Civ 2520
3 R (on the application of Cardao-Pito) v Office of the Independent Adjudicator for Higher Education  EWHC 203 (Admin). For comment, see: https://www.eversheds-sutherland.com/global/en/what/articles/index.page?ArticleID=en/Education/educ_OIA_full_version