Opinion

Higher education | No more force majeure? A comment on the OIA’s latest update

Higher education | No more force majeure? A comment on the OIA’s latest update

On 22 June 2020 the Office of the Independent Adjudicator (OIA) published an updated briefing note on its approach to student complaints arising from providers’ responses to COIVD-19, including reliance on “force majeure” clauses.

Its view is that even if a provider was justified in invoking that type of clause during the initial crisis period, it is unlikely to be reasonable to rely on it in relation to students who are starting or continuing with their studies in the autumn.

The OIA further states that providers have had time to prepare and plan for the longer-term effects of the pandemic, and those effects are unlikely to be considered an extraordinary event outside of the control of providers that is preventing them from delivering the service they have promised.

What are force majeure clauses?

Readers will recall from previous bulletins that force majeure clauses are contractual clauses that alter parties' obligations and/or liabilities under a contract when an extraordinary event or circumstance beyond their control prevents one or all of them from fulfilling those obligations. Because they are contractual, the scope for deviating from what was promised without committing a breach of contract will depend on how the clauses are specifically drafted, and provided that they are fair.

Force majeure clauses usually set out the impact on providers that the extraordinary event or circumstance must have to enable the clause to be invoked e.g. the provider is “prevented” or “unable” to deliver the service as promised. In those circumstances, providers could not rely on the clause where delivery became too expensive or difficult; they would have to show that it was physically or legally impossible.   The burden of proof is on the provider who relies on the clause to show that there is a causal relationship between the event and its inability to provide the service as promised.  The provider also needs to show that that there were no reasonable steps that it could have taken to mitigate the effects of the event.

Current challenges

While all providers have been planning and making strenuous efforts to deliver programmes in the wake of the pandemic, the OIA’s view presupposes that they can simply now return to the status quo ante in September, any deviation from provision as originally promised being a matter of expedience or discretion for the provider and therefore subject to students’ consent.

Students who will enrol for the first time in September 2020 will have been made offers which reflected the delivery models of a pre-COVID world, and they will have accepted their offers on those terms. The pandemic nevertheless continues, the threat of transmission subsists, the spectre of a second peak looms larger with each easing of the lockdown, and there is no clear guidance on whether and how providers can resume delivery as promised and safely. Pubs and restaurants, which are permitted to re-open from July, are doing so but in a way that is significantly different from the services we all enjoyed consuming until March.  Why are HE providers different?

The OIA clearly believes that, given the passage of time since the outbreak, providers have had time to mitigate its effects.  That may well be the case, though some providers would argue otherwise.  Mitigating effects now for September enrolments, however, does not mean that providers can fulfil promises made pre-COVID without any changes from offers originally made and acepted.  The OIA’s dismissal of force majeure reliance is therefore hard to understand and unhelpful to providers facing an increase in student complaints.

Contact us
For further information please contact Geraldine Swanton or another member of the education team.

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