COVID-19 | Coronavirus and the student experience
COVID-19 | Coronavirus and the student experience
Contracts with both UK and international students which are likely to be affected by the current crisis. The long-term impact on the disruption to lectures, exams, living arrangements and the wider student experience is yet to fully unfold, although likely to be substantial.
In this webinar, our education team will discuss these issues and what institutions should bear in mind when implementing coronavirus mitigation measures in relation to students.
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Hi, I'm Smita Jamdar our partner and head of Education here at Shakespeare Martineau. Welcome to today's webinar on the impacts of coronavirus on the student experience. You'll see on your screen that we have a QA facility. So please do ask questions along the way and I'll answer as many as I can also share a summary of questions with everyone after the webinar in today's webinar. I'm going to look at the relevant legal framework the problems that we're beginning to see developing for certain categories of students.
Across a range of different clients and finally some practical considerations when trying to manage legal risk in these areas the most obviously relevant part of the legal framework is of course contracts and Consumer Protection Law, and the starting point for most students will be the consumer rights act 2015 under that act the information that the institution published about its facilities its courses how they be taught and assessed forms part of it.
Contract with students provided that it was taken into account by students when they decided to take up the offer of a place. The institution is therefore contractually obliged to deliver its services in accordance with that publish information. And if it doesn't students have the right to claim an appropriate remedy which will come back to in a moment.
I think was rather surprised clients that I've spoken to is that under the law of England and Wales. There's no overriding legal principle which suspense contractual obligations, even in the sorts of circumstances. We now find ourselves in where many many contracts are extremely difficult to deliver as originally promised rather what the law does is look at what the parties agreed would happen in these sorts of circumstances through their contractual documentation.
Institutions therefore need to consider the terms and conditions that they have in place with students and any Force measure or rather variation Provisions in those and the question of whether any of those are enforceable will depend on a number of different criteria being met. The first is that the terms and conditions must have been drawn to the attention of students when they were applying for a place at the University or college and before they accepted the offer.
That place the second is that the relevant term they're relying on must be fair and reasonable in itself. And the third is that the institution must have followed the requirements of the term very precisely. So what makes the term fair and reasonable?
Well, the first thing to note is that the effects of a valid force majeure clause or indeed a variation provision is to allow the institution to deliver something quite different to what was promised without kering legal liability Because of the inherent potential for unfairness to students that this creates terms which allow institutions to unilaterally deliver something different to what they may have contractually agreed to provide will be scrutinized very closely by the courts and interpreted very narrowly.
Generally, they're going to be construed in the manner that is most favorable to students where there's any ambiguity in the drafting the sorts of things that will make a term Fair include that it's written in plain English and that it's easy to understand and that it's Admitted to circumstances that could be considered outside the reasonable control of the institution. Now this will again very much depend on the precise wording used. Obviously a pandemic is generally something out of the control of any individual party. But if the force majeure clause for example is an exhaustive list of types of circumstances that doesn't include a pandemic then it may not apply.
Establishing that the term covers the precise circumstances we find ourselves in is only the first part of justifying A variation of the contractual promise. The second step is to establish that the Clause has been properly engaged for example a clause which only applies where an institution has been prevented from delivering a service can't be relied on where the delivery of the service is simply been made much more difficult or expensive.
The third step will be to show that the institution has done all it reasonably can to mitigate the effects of the force majeure event.
As we'll see what it's reasonable to do to mitigate the impact of the pandemic May differ as between different types of students different courses and even different cohorts on different courses.
Before we do that though. Let's just have a look at the types of remedies that a student might have if a force majeure Clause is found not to apply in the current circumstances under the consumer rights act. They have the right to a Repeat Performance of services that weren't provided in accordance with the contract description alternatively. They're entitled to a discount on tuition fees to reflect how far short of the promise Services what they actually received fell. They may also be able to claim reasonably foreseeable.
Losses caused by the failure to deliver the relevant service resourceful facility.
However, such losses have to be caused by the institutions failure to deliver the services and question rather than the wider disruption of the pandemic is self in addition students are under a duty to mitigate any losses they suffer in this way and that may well be by taking up the offer of alternative services or facilities that the institution makes other legal areas that are relevant in the current circumstances include grima nation in particular institutions need to be careful that the mitigation measures they're putting in place to deal with the pandemic are not indirectly discriminatory in relation to students with particular protected characteristics. For example, the requirements to take an assessment online at a particular time may be indirectly discriminatory against students with caring responsibilities or against students.
In other time zones who are likely to be of other nationalities institutions will need to be able to That measures that have an adverse impact on those with particular protected characteristics can be objectively justified as a proportionate means of achieving a legitimate aim in relation to students with disabilities where particular mitigations put disabled students at a substantial disadvantage compared to those who do not have a disability the duty to make reasonable adjustments is engaged and the institution will have to consider whether the mitigations themselves need to be adapted to meet the needs of students with disabilities.
Abilities, for example, it may be appropriate to restrict access to lifts in a building over the period of the pandemic because of the need for social distancing but that could mean that students with disabilities cannot access particular resources and services and institution would therefore have to consider whether any adjustments could reasonably be made to allow disabled students in this position to continue to access those relevant facilities.
Another legal area that may be relevant in the current circumstances is the question of the broader duty of care owed by institutions to their students. Now the duty of care is the duty to take such steps as are reasonable in the circumstances to ensure that those who might be affected by an institution Zacks or its emissions aren't harmed their by so in implementing their mitigating action institutions will need to show that they've taken reasonable care to avoid harm to students.
may be particularly relevant to students who are required to remain on campus whilst institutions wind other services and Facilities down the third area to think about is in relation to tear for compliance where I'm sure you're all aware that there's been some good news because some of the requirements have been relaxed over the current period of disruption in particular visas will be extended to the 31st of May 20 24 only one who's leave expired after the 24th of January this year and who can't now leave the country because has of travel restrictions or self-isolation various Visa applications to switch categories that normally need to be made outside the UK can now be made from within the country until for students will be allowed to undertake distance learning During the period of disruption new international students who haven't yet traveled into the UK are also permitted to start their courses by distance learning finally a few words about hate crime and harassment.
This was obviously an area that the ofs was Consulting on although that consultation has now been suspended in view of the coronavirus related disruption. There have been numerous reports that students of Chinese origin or perceived to be of Chinese origin have been targeted by other students or indeed other people on and around campus and so institutions may receive a Spate of complaints relating to that. There's been a lot of focus recently on how institutions deal with complaints of hate crime and harassment.
Which obviously can be complex and sensitive and therefore it will be important to have processes and support for students affected by such incidents applying This legal framework. We can therefore identify at least five categories of students for whom specific considerations are likely to apply during this period of disruption and where the risk of complaints claims and liability is correspondingly higher.
Now, what's interesting is that these are the very groups of students who figure highly and complaints made to the oia which the Yes, they may already feel under catered For in institutional structures and processes. So the first category is international students who are as we've already looked at may need special accommodation to allow them to continue to access the online provision institutions are putting in place instead of face-to-face teaching and learning their have for example already been questions over how easily students in China can access web based resources given the restrictions on web access in that country the second category.
We students with disabilities and as we've discussed that is in terms of the reasonable adjustments.
They may now need to the various changes that institutions are making but also in making sure the previously agreed adjustments are carried through to the new methods of teaching learning and assessment wherever possible the third category of students are those on practice based courses IE those who require access to Laboratories or Studios or indeed those who have to undergo practical placements in order to attain their Oceans many of those facilities or placements aren't available at this point and therefore the effects of the disruption on them is likely to be more severe than on a student whose entire course can be relatively easily replicated online.
The fourth category of students to pay particular attention to at this point are those who are continuing to live on campus either because they have nowhere else to go or because they didn't leave for home early enough to avoid the government's latest advice that they should now remain in holes as indicated earlier. The institution will need to make sure that it's wider decisions around campus resources and Staffing levels or even which buildings are going to be kept open reflect. The needs of these students finally institutions need to think.
About those students who are already involved in ongoing institutional procedures such as student discipline or Fitness to practice or Fitness to study proceedings. It may not be possible to continue with those proceedings under the current circumstances and the oia has for example, given guidance that eat will not regard such delay as culpable, but the effects on students have holding these processes could be significant.
So institutions will need to show that they've considered them on a case-by-case basis and have tried to take Reasonable steps to mitigate any adverse impact so to conclude our webinar today. I just wanted to look at some practical considerations that institutions might want to think about the first is that right? Now, there are many decisions being taken relatively quickly and in response to a very rapidly changing environment legal risk will be best mitigated.
If there's some clarity of record-keeping about why those decisions were made at the time they were made and also of course if they're effectively Communicated to all those who may be affected by them.
The second consideration is to make sure that there's a consistency of approach across all parts of the institution whether that's across different schools faculties or departments or across different Support Services. It'll be very difficult to defend the failure to implement measures that are considered reasonable. If they've been taken up by one part of the institution if another part simply hasn't implemented them without any reasonable explanation.
thirdly as I've already tried to emphasize do consider the particular needs of different groups of students a reasonableness is a very flexible Concept in law, but it does require the particular circumstances to be taken into account and finally do review the measures that are being put into place to ensure that they are effective and in particular listening to student feedback right now ahead of particular complaints or requests for extenuating circumstances may end up saving the A whole lot of time resource and pain later down the line.
Thanks for listening to this webinar. I hope you found it useful and relevant in the current circumstances. I'm going to answer a couple of questions now and we'll also send a note of all the questions along with the answers along with the recording of the webinar. So the first question relates to the status of government guidance, and whether that represents a basis for arguing that the institution has been prevented from delivering the service that it had originally promised to the answer.
Is it will very much depend on what the wording of the relevant force majeure Clauses does it for example include actions of government, but it will also depend on the precise wording of the guidance relied on and as we know that has evolved over the period of the pandemic and at various points was being interpreted rather more Loosely than perhaps it was intended. So it may be helpful, but it may not necessarily provide a complete answer.
Err to the question of whether a force majeure Clause is to be relied on in the circumstances.
The second question relates to the new coronavirus act and whether there's anything in that which institutions can rely on to defend claims for breach of contract. The ACT does contain Provisions allowing the government to impose temporary closure orders on institutions.
And in the impact assessment for the coronavirus act the government recognized at this could in theory put institutions in breach of various contractual obligations. However, the view they took was that it would represent a force majeure event.
From a legal perspective. However, as we've already discussed in this webinar, unfortunately, you can't just rely on the legislation you have to show that it falls within the context of the force majeure provision that's in your contracts with students and that will again very much depend on the wording clearly for future student intakes.
We might want to review our terms and conditions to make sure that they can be relied on Either in the circumstances of a pandemic generally or if the government now exercises its new powers to make temporary closure orders. Thanks for all the great questions. I'll follow up on all these after the session and share my answers with you for further advice and guidance on coronavirus related issues. Please contact our dedicated resource Hub at shma.co.uk-- if you'd like further information or have a specific query you'd like to discuss in more detail.
Please do of course get in touch. Thanks for listening and take care.
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