A guest post by Ian Valentine
Currently, there are 115 ‘alternative education provider’ institutions for Higher Education in England and Wales, in addition to publicly funded colleges and universities. Unlike traditional universities, these institutions are not publicly funded., and between them they educate 52,000 students. Over the last 10 years, the majority of these institutions have opened as profit making enterprises. As such, it is clear that education is increasingly becoming a commodity, with students as the consumers.
All publicly funded universities, and most alternative provider colleges, will be subject to oversight by a quality assurance regulator such as QAA or BAC. Publicly funded universities, and those colleges ‘designated’ for student loans funding for individual courses are subject to increasingly rigorous scrutiny by the government funding agency HEFCE. Any institution in receipt of public funding is also subject to the jurisdiction of the Office of the Independent Adjudicator (the university ombudsman), and is required by the Higher Education Act 2004 to be a member of the scheme.
Admissions, exclusions, discipline, the curriculum, and complaints, for compulsory education in schools are governed by statute, as set out in the Education Act 1996 and its subordinate regulations. In contrast, providers of higher education have a wide discretion with regards to how they administer and deliver their courses. This means that providers deliver university-level education through a bewildering array of different approaches, governed only by their terms and conditions and policies (often called ‘regulations’ by universities). This article will explain some of the common things that can go wrong when studying Higher Education courses, and what you can do about it.
1. To whom should I complain?
The first step should always be to raise a complaint in writing to your personal tutor or the responsible department. It is best to copy in the head of the college, often called the Principal or Dean. The Principal’s contact details will usually be provided on the college’s website, especially if they are required to publish their governance and organisation structure under the Freedom of Information Act. This may speed up the response to your complaint, but be aware that Principals will rarely handle a complaint themselves at the first stage. They are often the last stage of the appeal process in smaller colleges, and so they try to remain independent of initial investigations.
Do not, however tempting it may be, copy in third parties such as the regulator or your local MEP in an attempt to intimidate the provider. Doing so will just immediately put the provider on the defensive and rule out any opportunity for a positive informal resolution. Many alternative provider colleges recruit mainly by word of mouth referrals, and their reputation is very important to them. As a result, a polite but firm email or letter setting out a genuine grievance clearly and specifically (use Complaining Cow’s tips to help you) stating exactly what you want done about it, often results in a quick and positive informal resolution.
Many awarding bodies have their own complaints procedures. These bodies include Pearson, who provide Edexcel; BTEC; LCCI accredited courses; and universities which validate courses for providers that do not have their own degree awarding powers. These external procedures can usually only be used on conclusion of the provider’s internal complaints procedure. Therefore, failing an informal resolution, your next step should be to make a formal complaint and if necessary an appeal through the provider’s complaints procedure.
Remember, as a provider of a service to consumers, under the Consumer Contracts Regulations the provider must make details of their complaints procedure available to you before you accept any offer from them for your course. If the qualifications are not awarded by the provider itself, e.g. through a partnership with a university, the provider must also tell you whether they or the awarding body have the main responsibility for complaints. If you applied online, they must provide you with a copy of that information in hard copy or as an email attachment before you start the course. Many providers publish their policies on their website and include a brief summary of the complaints procedure in the offer letter that they send out. If they receive public funding, they must publish this information under the Freedom of Information Act.
If the provider is not a publicly funded university or college, check to see if the provider advertises whether you can get student finance for your course. If your course is eligible for student loans funding, the provider will be subject to the OIA scheme, which can be used in some cases as a further stage of appeal from unsatisfactory responses to your complaints. The OIA Good Practice Framework requires the total formal dispute and internal appeals process to be resolved within 90 calendar days, and set outs various requirements for the fair handling of complaints, e.g. that you have a right to be accompanied by a non-lawyer friend.
If you are unable to resolve a dispute with a provider through their internal dispute procedure, the provider should issue you with a Completion of Procedures Letter, which will allow you to complain to the OIA if you remain dissatisfied. Please note, however, that the OIA does not consider matters of ‘academic judgement’ such as decisions about assessment; a degree classification; fitness to practise; research methodology; course content or outcomes; or matters arising out of admissions. Complaints must be made to the OIA within 12 months of the date of the Completion of Procedures Letter. If the provider has not provided a Completion of Procedures letter within 3 months, you may still be able to complain to the OIA.
2. I enrolled online, and have now changed my mind about the course. Can I get my money back?
Check the terms and conditions of your course and your offer letter. Remember, under the Consumer Contracts Regulations you need to be provided with details of your cancellation rights.
If you applied online, you will usually be entitled as a minimum to a statutory 14 calendar day cancellation period in which all pre-payments must be returned, unless you explicitly agreed to the course starting within 14 days. If you have not been provided with this information, the cancellation period is extended to 14 days after the information is provided to you if the provider gives it to you within 12 months or otherwise, a year after the date you accepted the offer. If you have a statutory cancellation right, the repayment must be made by the same method by which you paid (so vouchers or credit are not acceptable) within 14 days of you giving a clear and certain request to cancel. You do not need to use the provider’s own forms, and the request can be made verbally. However, if you make the request verbally, it is best to put it in writing to keep a record.
3. I paid a third-party recruitment ‘agent’ of the college for my course. The agent has gone bust without paying my money to the college, what can I do?
4. I am sponsored by my employer/have got student finance. My sponsor has not paid the provider/the Student Loans Company have refused student finance. Do I still have to pay?
Unfortunately, in many cases there is not much you can do about this. Many providers will include in their standard terms and conditions that you are jointly and severally liable with an agent, sponsor, or the Student Loans Company (SLC), for the fees. As a result, you may end up having to pay for the course twice if the sponsor or agent is unable to pay, or your student finance is refused!
Check the offer letter and terms of conditions of the college; is the term stating that you share responsibility with the agent/sponsor/SLC for the course fees obvious? If not, the term may be unfair and therefore unenforceable under the Consumer Rights Act. This is, however, a complex area of law, and legal advice should be taken before challenging the requirement to pay.
As a result, I strongly advise prospective students to only pay tuition fees directly to their course provider, and only to use agents who are paid a commission by the provider rather than those who take the money directly. You should also only apply for student finance for a course if you know you will meet the requirements and intend to attend the classes.
5. The provider has changed my course time-table/location/delivery method/core modules, so I can no longer attend the classes easily. Can I get my money back?
This will depend on both the type and extent of the changes, and the reasons for them. If it has not already done so, ask the provider to explain why the change has taken place. Check the terms and conditions or regulations of the provider; is the reason given for the change one of those stated in the these as a valid reason? If not, the provider may be in breach of contract by making the change, and for this reason the change could be deemed to be ineffective under the Consumer Rights Act 2015.
A term which allows for changes of key characteristics of the course by the provider may be unfair and unenforceable under the Consumer Rights Act. Additionally, if changes are made without your consent to elements of the course set out in pre-contract information required by the Consumer Contract Regulations, such as payment arrangements, location, and method of course delivery, or they influenced you in choosing the course, the changes will be ineffective and you would be entitled to withdraw and claim a price reduction or refund accordingly. Again, this is a potentially complex and confusing area of law, and I recommend qualified legal advice is sought before challenging a change to your course.
6. I believe the quality of teaching/academic support was poor. What can I do?
If the course delivery was objectively poor, for example, course materials were out of date, lecturers are routinely absent, etc. you may be entitled to a refund or free re-enrolment on the course under the Consumer Rights Act, as with any other consumer service. The first step, as with any complaint about a college, is to raise this through the college’s internal complaints procedures.
If you have evidence that the failings are systematic or serious, some awarding bodies such as Pearson allow you to complain directly to them without engaging with the internal complaints procedure, e.g. in cases of ‘maladministration or malpractice’ (defined as conduct affecting the process of assessments or which would have the effect of undermining trust in the college).
The OIA scheme does cover complaints about teaching, however, this is likely to be limited to poor service which can be objectively evidenced. If you just disagree with the teaching methods, teaching style, or the usefulness and application of the course content, you are unlikely to be able to seek further redress outside of the internal complaints procedure of the provider. Such matters are usually considered ‘academic judgement’, and both the OIA, awarding bodies, and the courts are therefore reluctant to intervene.
7. I disagree with my mark. What can I do?
The provider’s academic appeals policies and procedures will specify the circumstances in which you can challenge a mark. This is usually limited to evidence of bias or extenuating circumstances. The OIA and the courts are reluctant to consider challenges to marking, as again this is usually considered ‘academic judgement’.
9. I believe I have been treated differently or harassed on grounds of race/religion/gender/sexuality/age/disability. What can I do about it?
Providers should have a policy on equal opportunities, bullying and harassment, and are required to do so by the codes of regulators such as QAA and BAC. The first step is to give the college the opportunity to resolve the issue through its internal procedures. Discrimination and harassment cases are also likely to be considered to be malpractice by awarding bodies such as Pearson, and are covered by the OIA scheme.
If you are unable to resolve the issue with the provider or OIA, or as an alternative, you may also be able to bring a case against them for breach of the Equality Act 2010, as the prohibition on discrimination, harassment, or victimisation based on ‘protected characteristics’ applies to colleges providing higher education, regardless of whether or not they receive public funding. This should be a last resort, as such cases can be highly complex and expensive and should not be undertaken without qualified legal advice or representation.
10. I have a disability, and need extra support/special equipment to study. The college says it is too expensive/too difficult and that I should apply to the government for a grant instead. Can I make the college provide it for me?
Regardless of whether they receive public funding, a provider is required to make ‘reasonable adjustments’ to prevent a disabled student being put at a disadvantage. However, they need only make reasonable adjustments and may be able to refuse where it is disproportionately expensive or difficult to do so. You should approach a college’s student support or student union for help with this, and take legal advice where they refuse.
The OIA can consider complaints about provision of reasonable adjustments, as it will be considered disability discrimination.
You may also be entitled to Disabled Students Allowance as an alternative if the provider is being difficult about providing support, including up to £5,358 for specialist equipment, and up to £15,978 (part time) or £21,305 (full-time) for the cost of non-medical helpers such as note-takers.
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About the author
Ian Valentine is a sole-practitioner lawyer, specialising in consumer disputes and the law applying to Higher Education colleges. He is also currently the in-house lawyer for a group of three privately owned Higher and Further Education colleges delivering courses validated by four different universities, and has previously worked for two years as the in-house lawyer for another major west London provider of distance learning courses.
The above does not constitute and is no substitute for detailed, informed, legal advice. However, Ian Valentine offers a range of fixed fee and hourly rate legal and advice services for students and colleges at Glitnir Law. Colleges looking to improve their complaints handling policies and resolve complaints from students effectively can also contact Glitnir Law about policy review, dispute resolution, and terms and conditions drafting services.