“Please OIA, may I have some compensation…?” Review of complaints received by the Office of the Independent Adjudicator for Higher Education (OIA by students seeking compensation for lost teaching due to COVID-19

In our October article entitled “COVID-19 – Its Impact on the new Academic year”, we predicted that there would be a rise in claims against Higher Education establishments for refunds of fees or compensation following lost teaching time and lack of resources attributable to Covid-19. We are now over half-way through the 2020/21 academic year and details of complaints published by the Office of the Independent Adjudicator for Higher Education (“OIA”) demonstrate the predicted increase in claims.

Whilst fee refund claims are likely to be excluded from most Professional Indemnity policies, claims for compensation (including any awards made by the OIA) based upon poor or inadequate teaching are likely to fall to be covered. A review of the most recent OIA decision suggests that Insurers may see a rise in these types of complaints over the next few years.

Students are consumers

Students are now seen as consumers. They are paying – not insignificant sums – for the supply of materials, teaching and services in an aim to further their education.  If any of those provisions are not up to scratch, they are entitled to complain and seek reimbursement, in the same way that a customer of a bakery would be entitled to reimbursement if they paid for a whole cake and were only given a humble slice.

Students enter into a contractual relationship with the education provider, which is obliged to provide a satisfactory service in return for payment of tuition fees. Unfortunately, as has been shown, Covid-19 has meant that many higher education providers have not been able to provide the level of service expected. Consequently, significant pressure has been placed on the government and higher education providers to provide fee refunds and/or compensation.

Online petitions

At the start of the COVID-19 crisis, during the 2019/2020 academic year, there was immediate demand for students to be compensated for disruption to teaching by means of a fee refund.  In June 2020 a petition bearing over 300,000 signatures was brought before the House of Commons Petitions Committee. It demanded a refund for teaching lost due to both the 2018-2020 higher education strikes and the impact of COVID-19 during the 2019/2020 academic year.

After debating the petition in the Commons, the government confirmed that Higher Education providers must deliver high quality courses. It stated that if students were unhappy with the teaching provided, they should complain first to the provider and, if the complaint remained unresolved, should ask the Office of the Independent Adjudicator (OIA) to consider their complaint further.

Further petitions have since been brought in respect of the academic year 2020/2021, with a total of just under 300,000 signatures. The government has been consistent in its response, confirming that if students are dissatisfied, they should direct complaints to the OIA.

The government has effectively encouraged students to pursue OIA complaints where they consider the quality of teaching provided during COVID-19 to be substandard.  It seems students will do just that and this is a potential cause for concern for Insurers.

 OIA complaints

On 2 March the OIA released details of several complaints made by students about the impact of COVID-19. In 2020 the OIA received 2,604 complaints, of which 500 related to the impact of COVID-19, in particular disrupted learning, unused accommodation and missed practical elements of courses.

The published case studies make for interesting reading. In one incident, an international medical student paying course fees of £38,000 was awarded £5,000 in compensation after his university stopped clinical placements, meaning that he lost out on practical experience. Explaining its decision, the OIA said it had been awarded due to the “severe disappointment and inconvenience” that the student had experienced because the final year of studies had been “less valuable” than expected.

Similarly, a healthcare student was awarded £1,000 also due to “severe disappointment and inconvenience” suffered, because the final year of studies had been via remote learning and was therefore “less valuable than expected” (because practical lab work could not go ahead).

Whilst it is unarguably true that those students lost valuable practical experience, the OIA’s decisions are perhaps harsh when, in reality, the lost practical experience was directly attributable to circumstances outside of the education providers’ control (a global pandemic!).

Complaints not all justified

However, it is not all bad news. Only a small number of the case summaries published by the OIA relate to complaints that were found to be justified or partly justified. The OIA rejected other complaints (including requests for refund of accommodation fees paid prior to the first lockdown, and issues over teaching arrangements and exam-marking criteria) on the basis that the education providers had taken necessary steps to ensure students could still achieve their expected learning outcomes.  In other cases, of course, claims will have been settled prior to the OIA making a decision.

Keeping up to date

The OIA’s website contains materials produced not only to assist students, but also to give helpful guidance to education providers about how they can continue to ensure the quality of teaching expected of them remains consistent during the pandemic. To minimise the risks of complaints, Insurers should encourage their education provider clients to follow the tips which include:

• When relying on online virtual teaching, ensure that all students have access to fast, reliable broadband.
• Ensure that online resources are well-advertised so that students don’t miss out (and are not therefore disadvantaged).
• When a lot of teaching has been missed, consider extending term times later into the year.
• If students are required to complete a set number of hours of a practical placement that cannot be completed during COVID-19, consider whether other assessments can be completed out of the usual order to reduce the delay to a student’s progression.
• Ensure clear, regular, and frequent communication is maintained with students.

The next OIA annual report is due to be released on 30 April 2021. The report will again set out updated details of how many complaints the OIA have seen in the past year, noticeable trends and examples of complaints received. This is likely to reveal the true impact that COVID-19 has had on complaints against higher education providers.

Conclusion

The government’s guidance on complaints, together with the recent confirmation of some significant awards to students who have complained, is likely to incentivise other students to raise their grievances with the OIA.  We anticipate more complaints in respect of teaching /courses which are deemed “less valuable” due to COVID-19 restrictions.  Therefore, more providers are likely to seek the assistance of their Professional Indemnity insurers in respect of such complaints.  We anticipate a busy year ahead in Educational claims.