The Office of the Independent Adjudicator, which addresses complaints from students relating to higher education in England, has determined that a university in England should pay a student £5,000 to compensate for the loss of a student's opportunity to gain clinical experience as a result of COVID-19.

The complaints

The OIA has released details of a number of complaints made by students against higher institutions which relate to the provision of education during the COVID-19 pandemic.

In one case, an international student studying medicine argued that they had missed out on the practical experience offered by a clinical placement, which was cancelled but would normally have been given to students in their circumstances. When the student requested reimbursement of fees, the education provider refused on the basis that it had no option but to cancel the placements, and it argued that the student was not disadvantaged through their early graduation following the cancellation of the placement.

The OIA accepted that the cancellation of the placement was unavoidable in the context of COVID-19, but it determined that the educational institution had failed to offer additional online learning opportunities to those students who could not gain clinical experience, nor did it consider the "significant disappointment and inconvenience" caused by the cancellation. As a result, the student's experience fell short of what they reasonably expected as a final year student, and the lack of clarity about the specific services provided in the context of international fees contributed to the disappointment.

The OIA recommended that the educational institution should pay £5,000 in compensation to the student to account for the disappointment and inconvenience that their experience was less valuable than had been expected.

The OIA also issued a determination in response to a complaint made by a Master's student on a one-year healthcare-related degree. The degree normally involved a lab-based practical research project but had been moved to online teaching in response to COVID-19. The OIA partially agreed with the complaint and recommended that the education institution should pay £1,500 in compensation to the student for similar reasons to those set out above.

Comment – the potential for further claims and complaints against education providers

Since the beginning of the COVID-19 pandemic, education providers in Scotland and England have been consistently aware of the potential for students taking action against universities in relation to fees. It should be noted that the OIA issued decisions in relation to a number of complaints, and in some instances it did not uphold complaints or find that compensation should be paid. The OIA's approach to complaints has been fact-specific and the decisions reinforce the difficulty in both drafting policies to account for student experience during COVID-19, and in applying those policies in an appropriate manner. In Scotland, complaints on similar grounds could be made to the Scottish Public Services Ombudsman (SPSO).

While the OIA decisions discussed in this article relate to compensation for what was considered inconvenience and disappointment rather than damages in response to a legal challenge, these decisions will remind higher education providers of the potential for students to challenge how education services have been delivered throughout the COVID-19 pandemic, either through regulatory action or in the courts. In particular, the size of these recommended levels of compensation, and the publicity of the complaints that is likely to follow, may encourage other students to make complaints or to consider legal action.

Aside from regulatory action, universities' attention will often have been focussed on the potential for claims for damages under consumer rights legislation such as the Consumer Rights Act 2015. There is an arguably unresolved question as to whether universities may be liable to students in certain circumstances where a right to price reduction applies (resulting in reimbursed fees), for example where students argue that the contractual terms of their agreement with a university have been breached.

This risk for higher education institutions is complicated further by the recent introduction of 'class action' rules in Scotland, known as group proceedings, which allow two or more pursuers to raise proceedings together in the Court of Session. A similar procedure is already available in English courts and will no doubt factor into universities' response to this action by the OIA. There has been widely-publicised discussion about the potential for class actions in this area for some time, both in the UK and abroad, and universities will be well advised to consider the OIA's conclusions and to take these into account when preparing for such possibilities.

Brodies is well placed to advise on the matters discussed in this article. If you would like to discuss any of the issues raised in this article, please contact Niall McLean, or your usual Brodies contact.


Niall McLean

Partner & Solicitor Advocate