Some students were entitled to a Covid refund after all

A group of students that complained about the quality of their provision during the pandemic have been awarded over £600,000 in compensation by the Office of the Independent Adjudicator (OIAHE).

Astonishingly, that figure is almost half of the amount awarded in total across the whole of the sector last year by the complaints body.

The payout from the Royal College of Art (RCA) will be shared by almost 450 students, who were dissatisfied with arrangements that the college put in place to keep courses going during the initial Covid lockdown.

It’s both a huge and unprecedented number of complainants, and a huge and unprecedented compensation figure – and ought to raise major questions for the sector, the complaints body itself, ministers, the regulator and students’ unions.

Online art school is not art school

For a run down of the central contention in the case, it’s worth taking a look back at a blog we carried on the site back in February of last year from Syahadah Shahril, the Campaigns Officer at the University of the Arts SU, and Ed Compson, the leader of the group complaint art the RCA.

In the piece they set out a pretty straightforward case – that particularly (but not exclusively) for courses in the creative arts, “online” could not be seen as equivalent to in-person, even in the midst of a global pandemic:

…Painting in our spare cupboards cannot replace working in our studio spaces, gilding metals in our bathrooms does not match access to specialist equipment, and countless zoom calls are no substitute for the physical and emotional skills developed while creating collaborative physical projects with fellow students.

Everyone involved may feel they have done their best. But their best is neither equivalent nor good enough.”

Put another way, it was always the case that some (aspects of some) courses could be run online, and some obviously couldn’t. What was always missing was a clear sense to students about where the “acceptable for full fees” line was – with a mixture of gaslighting and moral pressure about universities as charities and “we’re all suffering” helping to suggest to all but the most intrepid that what they were experiencing was above that line.

The RCA version of the story goes something like this. Like plenty of other providers, a business continuity group had been set up in the February of 2020 in response to growing concerns about the impact of Covid-19 on its operations. By mid-March this had morphed into a Covid Operations Response Group, and a separate Covid Academic Response Group – just in time for the moment when pretty much the whole of the sector had to move the entirety of its operations, teaching, and research online.

First of all, students were told about the changes that would need to be made to course delivery, and given options to defer or the right to withdraw. At this point a small group of student reps wrote to their respective programme heads with an informal complaint about aspects of the decision to transfer delivery online, and when students were unhappy with the response that came back, this escalated into a formal group complaint (at that stage involving almost 1,000 students) in early May.

There were four key aspects to the group’s complaints that were pretty much shared by large swathes of students across the country:

• Students weren’t satisfied with changes made to course delivery;
• The group argued that it wasn’t reasonable for the college to continue to charge the full cost of fees for its courses;
• They argued that significant decisions about changes were made without proper or reasonable consultation;
• They also argued that the changes made failed to adequately provide the kinds of practical opportunities and on-campus facilities and services that students reasonably expected to gain when they decided enrolled to study at the RCA.

Exhausting (the) procedures

A month later that complaint was formally not upheld, that escalated to a panel hearing held in late September, that panel suspended the hearing to request further information, and then following the receipt of additional information the panel formally told the group in late November that its complaint had been rejected.

There were four aspects to the response from that panel that were also pretty much shared by large swathes of providers around the country:

• The college argued that steps were taken to ensure, as far as was reasonable, that online provision enabled students to achieve learning outcomes;
• That reasonable steps had been taken to ensure that the quality of the student experience was maintained online
• That nonetheless, students who preferred to wait for campuses to re-open had the option to take an authorised leave of absence;
• As such, and in line with government guidance at the time, it was reasonable to refuse the group’s request for a tuition fee refund.

At this point in the RCA’s procedures there was technically the opportunity for a request for a review of the panel’s decision – but that request was knocked back, triggering the issuing of a Completion of Procedures Letter that then allowed the group to progress the complaint to the adjudicator in late February. This involved asking Ed Compson having to ask students to “sign on” to the OIA process – and less than half of the original number (435 students) did so.

There’s an interesting moment at this stage where a week or so later, the OIA did what it was doing with various providers throughout the pandemic – it invited the college to settle the complaint, and subject to future UK lockdown restrictions, by April the RCA had written to the group to offer an in-person degree show in May 2022, an commitment to all the participants in that show a minimum of 2 weeks access to college’s technical or other facilities to create their work, and an offer to reschedule a physical convocation ceremony as soon as a suitable venue could be identified.

The problem for the group was that those things had already been offered prior to the formal complaint in May 2020 – and while a UK-wide student campaign that Compson had been involved in had focussed on the degree show issue, that had never actually been mentioned in the complaint itself. Crucially the college hadn’t addressed the call for compensation arising from the changes to delivery.

The group then rejected the settlement offer, the OIA asked the college to consider amending it offer to include a financial sum for those who could not commit to the package, and then the college said it needed to examine the issues in a more “forensic” way to progress things – ostensibly because it was arguing that while the complaint had been a group one, if it had to address the delivery stuff as well as the graduation stuff, it needed to look at the different impacts on different cohorts.

The OIA gave it until the end of July to provide a response – that went to the student group for comment, and OIA got a formal response from the group two months later. And then finally, some 18 months after the original informal complaint had been submitted, some external adjudication started to kick in.

Consultation and conflicts

There are then four aspects the “partially upheld” decision – the argument about the lack of consultation, an allegation from the student group of procedural irregularity at the appeal stage, a judgement about whether the college’s decision(s) had been reasonable, and some commentary on the so-called “force majeure” clause in the college-student contract.

On the first of those issues, the complaint had argued that the college had decided to make changes to delivery without properly consulting with the student body – but the college argued that it did engage with the SU and its reps.

That might be fair enough on the face of things – but it does appear to conflate a general quality expectation of student engagement over minor changes with the type of consultation needed to vary delivery against the terms in a contract. Even on the former, if an SU is under-resourced or not minded to consult with students, we surely at least need a provider to satisfy itself that it’s up to the job and doing that job. But on the latter, it’s clear from consumer protection casework that the contract is between an individual and the provider – and you need individual consultation and consent to start varying the terms or delivery against them.

The “procedural irregularity” issue also raises questions about the OIA’s judgement. Here the group had argued that the involvement of the college’s Head of Quality Assurance and Enhancement (“the Head of Quality”) as a member of the Stage 2 Complaint Panel represented a conflict of interest – because the Head of Quality had participated in developing the college’s approach to adjusting course delivery in the first place.

The OIA was satisfied that the panel was made up of several senior members of staff, that no decisions were made unilaterally by any single member, that the group was able to appeal the panel’s decision, and that appeal had been considered by the Head of Governance who had had no previous involvement in investigating, or in reaching any decisions about, the group’s complaint:

Overall, we are satisfied that decisions were made about the group’s complaint at different stages of the College’s complaints process, and by different decision makers.

But this also feels like a significant problem. Where there are complaints involving, say, a single student and an academic, a provider might be able to argue that the involvement of different people can cause a complaint to be satisfactorily reviewed at multiple stages. But even in that scenario, students assume that providers will protect their own and protect themselves – so in a case this big, there’s an obvious multiplier effect.

Who on earth involved in the management of a provider, if they can possibly avoid it, is going to find in favour of a group of over 400 students to the tune of £600k? And even if they make what they think is the right decision, how on earth can they be argued to be perceived to be free of a conflict of interest?

Opportunities and outcomes

On the meat of the case, we’re on more familiar ground – insofar as the decision focusses separately on learning opportunities, and learning outcomes.

On the latter, the college did a version of what most providers did – some assessments were adjusted, some deadlines were extended, and a no-detriment policy put in place:

Overall, the evidence we have seen suggests that appropriate measures were taken to adjust assessments across courses offered by the College, and to ensure that students were generally able to achieve the required learning outcomes necessary to progress in their studies and/or graduate on time with their intended qualification – despite the disruption caused by the global pandemic.

But when it came to learning opportunities, there was much more of a problem.

For students on programmes involving “Printed Textiles”, students argued they might expect access to:

…fully equipped textile screen printing workshop, which included 2x screen printing beds for textiles, a digital textile printing suite, heat-presses, wash out booths, multiple screens at varying sizes, exposure unit, screen emulsions, jet wash, a holding cupboard [etc.]…”

But following the changes made to delivery, students on those programmes were unable to access these facilities – and students argued that they had received:

…no financial support to gain access to external workshops and suppliers…”

A student on a Jewellery and Metal course commented that their course:

…requires specialised tools and spaces in order to work safely and efficiently, which is almost impossible and very dangerous to achieve at home. My practice requires heavy machinery such as the hydraulic press, a kiln, casting facilities, 3D scanning and printing, and using a blow torch…”

A student on Ceramics and Glass course wrote that:

…there is a lot of support from tutors given the situation, but there is only so little they could offer […] a relative standstill to studio making (coming from a ceramics and glass course) with no access to resources for making clay…”

A student on a programme involving 3D software complained that:

…it has been quite frustrating. I have tried to follow online learning courses for 3D software but because my laptop isn’t built for using such software and I don’t have access to better machines I fell behind each time and I just had to quit and then look up answers myself online…”

I could go on. Overall the OIA thought the group had provided clear and sufficient reasons for why students were not satisfied that changes were sufficient, given their reasonable expectations about the specific (and largely practical) learning opportunities normally delivered as part of a course of study at the college.

Students had recorded some of these more specific impacts during the internal process – and the college argued that they weren’t material to their decisions – but the OIA took a dim view of the college not responding specifically to each of them, at least in categories.

And while students were told they had the option to take a “short term leave of absence” or to “withdraw from the college completely”, the OIA thought that wasn’t really a good enough answer – students may have had compelling reasons for why it would not be practical or possible to return to study at a later date, may have reasonably been concerned about whether circumstances would be different or better the following academic year, and so may have reasonably felt that there was no real alternative other than to complete the course in an amended format.

So on learning opportunities, the complaint was upheld – over circumstances which look astonishingly similar to the handling of almost every course in the country that had substantial practical components to it.

One other aspect was the contract’s “force majeure” clause. In this case, OIA argued that the college’s clause was far too broad as it appeared to generally allow the college to restrict or cancel course delivery without assuming any obligation to minimise / mitigate the disruption caused to students, and it could see no evidence that students are specifically sign-posted to the clause.

It’s not the first time the OIA has said this. The Office for Students (OfS) has of course been repeatedly promising to crack down on this kind of consumer protection law compliance issue almost since it was established. It still hasn’t progressed that work.

Dancing is my remedy

With that decision made back last December, there’s then the issue of remedy. That has also been a long and drawn out process – but to cut a long story short, has broadly involved the college and the lead student rep negotiating through the OIA to reach an outcome involving the allocation of students into to one of four bands of impact:

• Those on programmes where students would not normally expect the need to access specialist facilities and services in order to complete their course of study, and where lack of access did not make a difference to the students’ experience of the programme – an apology.
• Programmes where students would have expected access to facilities and services but where these are largely incidental to the normal aims of the programme but nevertheless, the lack of access to facilities and services made a difference to the students’ experience of the programme – an apology and £500.
• Programmes where students would have expected regular access to facilities and services but despite efforts there was a shortfall in learning opportunities – a formal apology and £1,000;
• Programmes where students would have expected regular access to technical facilities and services, and other specialist spaces or services, where RCA was unable to put in place measures to deliver learning opportunities without a substantial impact upon how those learning opportunities would normally be delivered on the programme – a formal apology and £2,000.
• And all of the above getting an additional £550 for the distress and inconvenience caused by the delay in the college’s handling of the complaints process.

There’s an aspect of this that is troubling too. In the haggle over a suitable figure for the delay in handling, OIA said it was “mindful” of the college’s argument that:

…an award of [a higher scale] will materially impact on our abilities to deliver planned activity in the next 12 – 24-month period, including for some of the students who were students at the time period covered by this complaint.”

That might be true, but surely we need students’ complaints to be addressed on their merits, not in the context of a provider’s financial situation? Taken to its logical conclusion, if a provider had very little money in the bank even an egregious breach of consumer protection law would result in a “no compensation” recommendation to the OIA. That feels wrong.

Coalition of inaction

So where does this leave us? Some would argue that the pandemic was pretty much a one-off, and that there’s little that can be practically learned from a case like this. Others would argue that a major component in this case was a failure to address at least categories of concern about practical delivery – and that most providers might have been more careful to have at least be seen to respond to the detail when it came in.

That might all be fair – but there are clearly bigger issues here.

In truth, there are huge parallels between the issues that the students in this case raised, and those experienced by hundreds of thousands of students across the UK with practical components to their courses. They will rightly be asking why this cohort of students has been compensated when they haven’t, and it’s not at all clear to me that “well you should have signed a formal complaint then” really cuts it.

If nothing else, those who signed the original complaint and yet didn’t sign the OIA escalation will be feeling particularly aggrieved.

There’s the issue of delay. This was an unprecedented case at an unprecedented time, but it simply can’t be acceptable that a complaint of this sort took so long to sort. We surely need a proper review into the time that complaints take to work their way around a university and then get resolved by the OIA.

The issue of understanding, confidence and persistence does need addressing. It’s clear that the students at RCA lucked out when Ed Compson emerged as their representative – RCA’s own SU wasn’t leading the process, but instead a student who both had to learn and read up on consumer protection law, quality assurance and the OIA scheme, overcome a political instinct that “student as consumer” felt wrong, and then lead the complex process of complaint and remedy negotiation for well over two years. If we don’t take more steps to ensure students understand and can enforce their rights, we’re depending on random heroes to emerge from the student body.

SUs around the country ought to be doing some soul-searching on this one. There are very few that didn’t gather and face calls from students to get them a refund – and while some students were on desk based courses, plenty were on practical ones that couldn’t be adapted just as many of the RCA’s didn’t. It might be an uncomfortable place to be, but what’s the point of an SU if it isn’t leading the charge for redress in a situation like this when students were clearly, as it turns out, entitled to that redress? And if individual students can lead getting redress when SUs won’t, that will fatally damage their legitimacy. Giving SUs a statutory role in this scenario would help, if the government wasn’t picking fights with them over culture wars instead.

I’ve said before on here that the Competition and Markets Authority’s spectacular inaction over higher education throughout the pandemic was pretty shameful – this case has implications that should cause some reflection. Similarly, for all the talk about delivery and quality, OfS ought to be explaining why its regulation in the student interest (including this specific intervention that was supposed to lead to refunds) has seemingly resulted in hundreds of thousands of students in similar situations not getting the redress that this group has secured.

Governments played a problematically mealy-mouthed role too, of course – the Welsh Government and HEFCW did very little, Scotland tended to pretend that all of its students were home domiciled free education beneficiaries, and in England Michelle Donelan repeatedly told students to complaint to the OIA without ever addressing that they didn’t understand the basis on which a complaint could be made, and without ever taking steps to underwrite the implications of successful complaints. The ministerial frame was always – well, it’s up to the providers. But what else was the RCA, or any other college in this situation, supposed to do, when the message was “you’re getting nothing from us”?

OIA too will need to have a think. I’ve raised above some of the concerns with this case over conflicts when there’s a collective, consumer law case – and it will need to consider whether cases of this sort can always depend on there being an Ed Compson around to lead the charge, and if not what can be done instead.

But ultimately, what’s really required here is a system-wide look at the rights to redress that students have when things go wrong, how they enforce those rights and the nature of that redress when they do. In many ways the conclusion of this case was obvious all along – the issues were as plain as day to anyone who took a proper look. That a constellation of self-protecting providers, government departments, arm’s length bodies and mission groups somehow conspired to ensure that almost every student whose practical education was impacted by the pandemic will still pay full price for it feels like a shame stain that will be hard to shift.

The RCA’s formal apology:

We would like to take this opportunity to make a formal apology to you for the shortfall in learning opportunities that you experienced on your programme following the RCA’s move to remote based teaching during the National Lockdown. We realise that you were unable to access facilities and services that you would have expected to access at the outset of your programme, pre-COVID, and as a result you did not receive the experience you had hoped for when you started your programme, and we are sorry that this was the case. We are however very pleased that so many of you were able to graduate as planned; please accept our congratulations and very best wishes in your chosen career.