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Covid 19 is an unprecedented event in legal history. There is considerable uncertainty as to how existing legislation and case law apply to this novel situation. Clearly, there is a balance to be struck between the rights of consumers – including university students – and those of providers, and it remains to be seen what approach the courts will adopt. This uncertainty is both a reason for caution and a potential form of leverage in negotiations over fee reductions and rebates.

The legal rights of students as regards the pandemic vary greatly, not just from institution to institution but from individual to individual given that each student’s university experience is unique. This makes any form of collective action very difficult, and it is for this reason that the union is encouraging students to make individual complaints based on their own circumstances.

LSE’s published Conditions of Registration allow the School to make alterations to programmes and/or courses in certain circumstances, and to change the content and location of a course in response to a pandemic. There is a potential issue as to whether, under Part 2 of the Consumer Rights Act 2015, the variation clauses in question are fair and enforceable given how wide they are and the amount of leeway they give the university at students’ expense.

Writing in relation to consumers generally, the Competition and Markets Authority (the CMA) has expressed the view that if the service provided is radically different to what was originally anticipated, for example, because lockdown laws or other restrictions prevent key parts of the contract from being performed, then in most cases consumers should be entitled to a refund. However, to date the view taken by many organisations including the Office of the Adjudicator for Higher Education, is that a student will not have grounds for complaint or legal action simply because a course has moved online rather than being taught in person.

Notwithstanding the pandemic and any permissible changes to tuition, students continue to enjoy certain protections under the Consumer Rights Act 2015 (the 2015 Act). Significantly:

• Institutions must continue to deliver services with “reasonable care and skill”;
• Universities have a duty to mitigate the impact of the pandemic; and
• Students are entitled to a refund for services they have not received.

Additionally, universities continue to owe specific legal duties under the Equality Act 2010 to students with protected characteristics. This includes a duty to make reasonable adjustments in respect of disabled students i.e. those students with a long-term, more than minor physical or mental impairment that has an adverse impact on day-to-day activities).

The Office for Students (OfS) has advised that providers are expected to consider each student’s claim for a refund on a case-by-case basis, a blanket policy being unreasonable. This – together with the School’s terms of registration – mean that students are entitled to have their own particular concerns considered on their merits, with a right to complain to the OIA arising in the event that the student is dissatisfied with the School’s findings or any remedy offered.

For many students, the School’s complaints process represents the most (if not only) accessible and affordable means of raising their concerns. It is also important to appreciate that neither the OIA nor the courts are likely to be receptive to a case unless the internal process has been completed.

When contemplating a complaint, you may wish to think about the following issues.

Can my Course Be Delivered Remotely?

The impact of a switch to remote provision will vary from course to course. Whereas certain courses can be delivered quite effectively online, others cannot. An obvious example are courses that contain a significant practical component. Compare what you would normally have received with what you are currently receiving and decide whether and to what extent you are worse off.

As a consumer, students will normally be entitled to a refund for any services they have already paid for but that are not provided by the University or which you are not allowed to use because of lockdown laws. This may be a partial refund of the total amount you have already paid, to reflect the value of the services already provided. It can also, in theory, be a replacement provision to be delivered at a later date, assuming this is possible and you are in a position to benefit from it.

The 2015 Act requires the provider to re-deliver any element of a service that is missing or inadequate, or perform the whole service again at no extra cost, within a reasonable time and without causing you significant inconvenience. Or, in circumstances where the repeat performance is impossible, or cannot be made within a reasonable time or without causing significant inconvenience, you can claim a price reduction. Depending on how severe the failings are, this could be up to 100% of the cost, and the provider should refund you within 14 days of agreeing to.

Am I Able to Meet Learning Outcomes?

Another relevant consideration is the extent to which the revised tuition format still enables you to meet the relevant course learning outcomes. This will be especially pertinent in relation to vocational courses or courses that teach practical skills. This appears to be a factor that the OIA is especially interested in in considering complaints about Covid disruption.

Reasonable Steps to Mitigate?

Give thought to whether the School might reasonably have done more to enhance your learning experience and to limit the amount of disruption caused by the pandemic. The starting point is that providers should deliver what was promised except where it is not reasonable to do so.

Disproportionate Impact on Certain Students

Arrangements that are suitable for many students will not work for all. If there are reasons unique to you why the revised arrangements are inappropriate and you are struggling to access your course, you should raise these. This will be especially relevant to students with disabilities or additional learning needs. Remember that the School has a legal duty to be proactive about identifying and supporting students who may need additional help and that this applies during the pandemic. It will also be relevant to international students who may have been forced to return home and who now find themselves in a different time zone or without access to necessary facilities.