Welcome to the second edition of Higher Education Spotlight – a quarterly newsletter designed to support colleagues working within the Higher Education Sector. In each edition we will place the spotlight on a particular issues impacting Higher Education, with an article from one of our specialist Higher Education lawyers.

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Approach to COVID-19 complaints

As Higher Education providers continue to prepare for the return of students and the start of the academic year, amid concerns the return of students to University will trigger a second COVID 19 wave and for some the additional complexity of local lockdowns, it is clear the academic year cannot proceed as normal.

In Petitions Committee July report the House of Commons acknowledges the enormous efforts made by Universities to continue to deliver university courses in uniquely challenging circumstances, with some acknowledged as having done so in a way which delivers value for the money.

Across the board it is also evident the sector has maintained those efforts to enable students’ physical return to campus and to ensure they can offer an experience as close to normal as possible whilst complying with the current Public Health England guidelines. Health and Safety risk assessments have been undertaken and are being continuously reviewed, spaces which are allowed to open have been made COVID secure, and social-distancing principles appropriate to the varied facilities on campus are in place. Behind the scenes complex decisions regarding the content and method of teaching provision, whether courses can continue where students numbers mean they are no longer financially viable and the student learning experience might be impaired are ongoing. In parallel, considerations around how to meet the specific needs of disabled students and those with protected characteristics remain in the spotlight with the Disabled Students Commission emphasising in their Three Months to Make a Difference Report the need for clear communication, certainty and choice and to ensure that disabled students don’t face the added burden of delay in their assessment needs and that timetables are provided for the introduction of reasonable adjustments.

On top of that the results of various surveys over the summer (see links below) suggest that students do not share the sectors confidence that they can return safely or that they will receive the experience or quality of teaching they signed up for. These surveys highlight the difficulties facing all students but particularly disadvantaged ones when moving from face to face learning to on-line distance or blended learning, with challenges cited including inadequate hardware, weak Wi-Fi, working environment. According to the NUS this is more acute for international students and will also be of relevance to providers facing claims for refunds/deferrals.

To provide more clarity the Petitions Committee called on the Government to work with the Office for Students and the Office (Ofs) of the Independent Adjudicator for Higher Education (OIA) to provide guidance on when students are likely to be entitled to seek a refund or repeat part of their course; and to establish a new system which enables that as well as to ensure students are advised of their consumer rights and how to seek redress if they feel their University has fallen short.

All of this raises the inevitable questions of how to ensure the decisions providers are making now are lawful and reasonable in public law terms and to respond to those complaints and appeals arising in the context of COVID 19 including claims for refunds. Students are of course protected by consumer law and will be entitled to remedies if the University fails to provide the education they have paid for but what that actually means remains unclear particularly where University UK’s positon is that “where there is wide ranging support for active and ongoing learning and progression, students should not expect any fee refund from their University” – a position which thus far has been generally supported by the Government.

To assist the OIA have published a series of briefings including this second briefing note published in June, on their approach to complaints arising from the effects of coronavirus in which they make it clear the expectations on providers will be higher as we move into the next academic year notwithstanding the context is still very challenging. Communication remains key, with the provision of clear, timely and accurate information including as to what will happen if restrictions are re-imposed highlighted and the need to be flexible in their approach where it is reasonable to do so. Not surprisingly providers are reminded of the need to comply with consumer law and wider Guidance from the Ofs, CMA and QAA but also cautioned that now we are over the initial crisis, providers are unlikely to be able to rely on force majeure clauses to avoid liability for not providing contractual obligations in the 2020/21 academic year. They key point being that reasonable delivery in the middle of lockdown is likely to look different to reasonable delivery in a more managed and planned environment.

Of course not all students are the same and the OIA suggest that providers should seek out students who appear not to be engaging with online delivery, and those who may find it difficult because of their individual circumstances. How they anticipate that would work in practice is unclear but their expectation is that providers will give those students that need it more support and advice than others and that empathy and flexibitlity, rather than a rigid adherence to regulations and processes is what they will look for when assessing complaints. The QAA Guidance on complaints and appeals in the context of COVID-19 includes a helpful summary of key reference points and case studies for providers when dealing with complaints.

We have been advising providers on an effective decision making to mitigate the risk of COVID-19 related complaints and how to manage them effectivley when they arise. If you require further help and guidance please contact Virginia Cooper or Rebecca Darby.

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The Resource Library

Full HE resource library


Higher education restructuring regime: coronavirus (COVID-19)
Employment Eye: Focus on Higher Education - July 2020
Coping with the expected surge in children's services referrals
The impact on developers - Major changes to planning use classes and permitted development
ICO Publishes Artificial Intelligence Guidance
Draft Building Safety Bill Published


ON DEMAND - An introduction to The Corporate Insolvency and Governance Act 2020
Recent and Proposed Changes in Town Planning
ON DEMAND - Proposed changes to the Mental Health Act
ON DEMAND - Contract Management Webinar
ON DEMAND - Employment Law Webinar

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The news that matters

The Higher Education (Fee Limits and Student Support) (England) (Coronavirus) Regulations 2020
In force August 13, 2020
This instrument amends legislation in relation to England, which prescribes tuition fee limits and tuition fee loan amounts.

COVID-19 Higher Education Restructuring Regime
16 July 16, 2020 | Gavin Williamson, Secretary of State for Education
The establishment of the Higher Education Restructuring Regime in response to COVID-19 was announced.

Higher Education Student Finance
July 6, 2020 | Michelle Donelan, Minister of State for Universities
Details of student finance arrangements for higher education students undertaking a course of study in the 2021/22 academic year starting on 1 August 2021.


Coronavirus: Easing lockdown restrictions in FE and HE in England
September 2, 2020
This paper covers the impact of easing lockdown restriction on the FE and HE sectors in England, discussing issues including re-opening campuses, student numbers in 2020/21, temporary student numbers controls, delivery of courses in 2020/21 and the Higher Education Restructuring Regime.

A level results in England and the impact on university admissions in 2020-21
September 2, 2020
This briefing discusses the issues with the awarding of A level grades in summer 2020 after exams were cancelled due to the coronavirus pandemic, and outlines the effect of this on university admissions.

Coronavirus: Financial impact on higher education
September 1, 2020
Much of the concern about the financial impact of the pandemic on universities has focussed on the potential loss of international students, but this paper discusses other potential losses in income, such as lower numbers of home student numbers, a drop in research work and less revenue from accommodation, catering and conferencing.


Coronavirus (COVID-19) guidance is collected here:

Further and higher education: coronavirus (COVID-19)
Collection | Last updated August 26, 2020
What colleges and universities and other providers need to do during the coronavirus (COVID-19) outbreak.

The collection includes:

Higher education: reopening buildings and campuses
Guidance | Last updated September 10, 2020
Guidance for higher education providers in England on when and how to reopen their campuses and buildings, which now includes the Higher education coronavirus (COVID-19) NHS Test and Trace handbook.  This changes made in this latest version of the guidance are outlined in this press release.

Other Department for Education communications:

Reducing bureaucratic burden: higher education
Policy Paper | September 10, 2020
The government plans to achieve significant reductions in bureaucracy for the research, innovation and university sectors. This policy paper follows announcements made on 4 May 2020 and June 2020.

Action agreed to support students into preferred universities
Press release | August 20, 2020
Students have been given reassurances on university places and the Government is lifting the cap on medical courses for the coming academic year.

Government urges universities to hold places
News story | August 11, 2020
The Universities Minister has written to all Vice-Chancellors asking them to hold places for students appealing their A level results

Extra university places for vital courses announced
Press release | July 30, 2020
Over 9,000 additional places approved at UK universities for courses to deliver vital services and support the economy.

Higher education restructuring regime
Policy paper | July 16, 2020
This document outlines the higher education restructuring regime for higher education providers in England who are at risk of insolvency as a result of coronavirus (COVID-19).  The scheme will review providers’ circumstances and assess the case for restructuring support, including last resort financial support, through repayable loans. A press release was also published.

Graduate outcomes (LEO): subject by provider 2017 to 2018
Official Statistics | June 25, 2020
Provider level employment and earnings outcomes for 2017 to 2018.


Support for university research and innovation during coronavirus (COVID-19)
Notice | June 27, 2020
The UK’s research work plays a vital role in our economic prosperity but is at risk from a range of income losses as a result of coronavirus.  The government has announced two significant new support packages that will help protect the science jobs that will be essential for our future prosperity, and ensure that critical research projects can continue.


Principles for managing SARS-CoV-2 transmission associated with higher education
Research and analysis | September 4, 2020
A paper by the Task and Finish Group on Higher Education/Further Education on principles for managing SARS-CoV-2 transmission associated with higher education, along with supporting slides. It was considered at SAGE 55 on 3 September.

DfE: COVID-19 - further and higher education
Research and analysis | Published July 24, 2020
A paper prepared by the DfE for SAGE, considered at SAGE 46 on 9 July, plus an updated version of the same paper. It outlines the objectives, key characteristics and issues to consider in relation to the closing and reopening of the FE and HE sectors.


The OfS provider guide to coronavirus is here:

Provider guide to coronavirus
These pages set the OfS planned approach to coronavirus (COVID-19) for providers.

Some OfS coronavirus publications and letters from the last quarter:

Regulator outlines significant cuts to bureaucracy
September 10, 2020
The Office for Students (OfS), the independent regulator for higher education in England, has set out measures to reduce unnecessary burden on universities and other higher education providers.  Plans include a cut to registration fees, while the National Student Survey (NSS) will also be reviewed as part of plans to cut red tape on an ongoing basis.

Digital teaching and learning in English higher education during the coronavirus pandemic: Call for evidence
Last updated September 3, 2020
This call for evidence is seeking to understand the challenges faced, and lessons learned from remote teaching and learning delivery since the start of the coronavirus pandemic in March 2020. The call for evidence runs from 3 September 2020 to 14 October 2020.

Update on the Office for Students’ approach to regulation and information about deadlines for data returns
July 30, 2020
This letter provides more details about the phased resumption of the OfS's regulatory requirements and describes the short-term changes made in relation to the collection of financial data.

Regulatory notice 5: Condition Z3 Temporary provisions for sector stability and integrity
July 3, 2020
This regulatory notice contains a time-limited ongoing condition of registration imposed to protect the stability and integrity of the English higher education sector during the unprecedented circumstances of the coronavirus pandemic.  The condition applies until 30 September 2021 to all providers registered with the OfS. 

Consultation on the integrity and stability of the English higher education sector: Analysis of responses
July 3, 2020
The OfS has published its analysis of responses to the consultation on the integrity and stability of the English higher education sector, held between 4 May 2020 and 26 May 2020.

Coronavirus briefing notes:

Note 9: Supporting disadvantaged students through higher education outreach
July 9, 2020
This briefing note looks at the practical ways in which universities, colleges and other organisations are continuing to support disadvantaged students through outreach programmes during the pandemic.

Note 8: Disabled students
June 25, 2020
This briefing note briefing note looks at the range of different approaches that universities and colleges are taking to support disabled students during the pandemic.

Other OfS press releases and new publications:

‘Digital poverty’ risks leaving students behind
September 3, 2020
The ability of students to participate in higher education from home is being disrupted by a lack of access to core digital infrastructure, new survey data published by the Office for Students (OfS) shows, as a new review into digital teaching and learning is launched.

University access improving, but big challenges remain – OfS chair
August 21, 2020
Analysis by the Office for Students of this year’s UCAS figures shows that more young people from disadvantaged areas are going into higher education – including selective universities – this year, though significant challenges remain.

Impact of coronavirus on OfS Mental Health Challenge Competition
August 5, 2020
This short independent report explores the impact that the coronavirus (COVID-19) pandemic has had on delivery of the ten Mental Health Challenge Competition projects.  It provides insight and learning for the higher education sector to shape ongoing practice.

Student satisfaction stable as data continues to highlight need for clear communication
July 15, 2020
Overall, 83 per cent of the 311,432 UK students who responded to this year’s National Student Survey (NSS) are satisfied with the quality of their course – marginally down from 84 per cent last year. However, students have continued to report comparatively lower rates of satisfaction with how their courses are organised and how effectively changes are communicated by their university or college.

New funds to boost student mental health through pandemic
June 17, 2020
Students are to have access to a new online platform delivering targeted and high-quality mental health support, designed to respond to additional pressures caused by the coronavirus (COVID-19) pandemic.


Adapting to COVID-19: Smaller, Specialist and Newer Providers of Higher Education
August 7, 2020
This guidance focuses on providers who, due to their size, their subject specialisms and organisational structures may lack the type of resource and systems that larger higher education providers have been able to utilise in mitigating the impact of COVID-19 on their educational provision.

Complaints and Appeals in the Context of COVID-19
July 30, 2020
This paper draws together the range of reference points that institutions are expected to use in managing complaints and appeals, and outlines examples of practice from the sector during the pandemic. It applies to complaints and appeals heard during 2020 but is likely to have value in future years for students progressing their studies into 2020-21 and beyond.

QAA commissioned to review and enhance the quality of UK TNE
Universities UK and GuildHE have commissioned QAA to develop a new approach to reviewing and enhancing the quality of UK transnational higher education. QAA will consult on a new review method later this year and will launch a programme of in-country enhancement activity in 2021.

Questions to Inform a Toolkit for Enhancing Quality in a Digital Environment
July 3, 2020
This paper is the result of collaboration with QAA Members in the 'Maintaining Quality in an Online Learning Environment' webinar. It offers a series of considerations, prompts and reflective questions intended to help providers develop their own toolkits for maintaining the quality of digital learning approaches.


The grades u-turn caused a ripple effect throughout education – it could be catastrophic for unis
August 25, 2020
A blog post that first appeared as an article in the Daily Telegraph, written by UUK President, Professor Julia Buckingham CBE, outlining some of the issues that universities now face with number controls abandoned and thousands of additional students now qualified to enrol at their first-choice institution.

Universities UK launches campaign to boost confidence among university students
August 7, 2020
​Students awaiting their exam results this August are being urged not to let the coronavirus pandemic stop them from pushing forward with their lives, in a new campaign, #2020MADEUS, launched by UUK.

Universities agree further measures to tackle grade inflation
July 21, 2020
Universities from across the UK have agreed new principles to tackle grade inflation.  This fresh commitment, published by Universities UK and GuildHE on behalf of the UK Standing Committee for Quality Assessment (UKSCQA), outlines six new guiding principles as well as recommendations for universities when deciding the final degree classifications awarded to students. 


UCAS receives upgraded centre assessed grades and provides analysis on number of upgraded students able to meet conditions of original first choice
August 19, 2020
Initial analysis shows approximately 15,000 of these students who were originally rejected by their original firm choice university with their moderated grades, will now meet the A level conditions of their offer with their centre assessed grades (CAGs).


Universities must not become the care homes of a Covid second wave
August 29, 2020
The UCU says that universities must scrap plans to reopen campuses in order to prevent a major public health crisis. The union fears that the migration of over a million students across the UK risks doing untold damage to people's health and exacerbating the worst health crisis of our lifetimes.

Education unions set out concerns to Gavin Williamson after exam results fiasco
August 18, 2020
UCU and NUS have written a letter to Secretary of State for Education Gavin Williamson to set out the concerns of students and staff in schools, further education colleges and universities, following the government's dramatic U-turn confirming that centre-assessed grades would be used for A-levels and GCSEs.

UCU and student activists launch green agenda for college and universities
June 24, 2020
UCU, in conjunction with Students Organising for Sustainability (SOS-UK), has launched a Green New Deal for colleges and universities to coincide with the International Trade Union Confederation's Global Day of Workplace Action. The initiative calls on staff and students to pressure their college or university to help tackle the climate emergency.  The Green New Deal brings together policy set by both UCU and the National Union of Students, and seeks to create a better world as we emerge from the lockdown. 


The press releases below relate to the Coronavirus and Students Survey phase II:

Universities and colleges must prioritise student wellbeing, NUS warns
September 8, 2020
Coronavirus has had a huge impact on the wellbeing of students, with 60 percent of students reporting low self-esteem. Students are also more likely to have experienced feelings of isolation during this period.

Students unable to access learning
September 8, 2020
In response to the statement, "I am able to access the online learning sufficiently to complete my studies e.g. I have access to the necessary equipment", over a quarter of students did not agree that they have been able sufficiently to access education online.


Three Months To Make A Difference: Key areas of challenge for disabled students requiring urgent action from institutions and policy makers in HE
Disabled Students Commission | July 15, 2020
The Disabled Students’ Commission (DSC), which is funded by the Office for Students (OfS), ran a series of roundtables to inform a booklet, which outlines key areas that present challenges for disabled students.  Published three months before the new academic year starts, it is vital that the disabled student experience is addressed by institutions and policy makers as campuses re-open. 

The impact of Covid-19 on university students
Petitions Committee | July 13, 2020
In this report, the Committee calls on the Government to take urgent action to review the support available to universities and students during COVID-19.  The Committee did not believe there should be a universal refund or reimbursement of fees, but did state that the government should work with universities and regulators to produce guidance on when students may be entitled to seek redress.

OIA briefing note 2: Our approach to complaints arising from the effects of coronavirus (COVID-19)
Office of the Independent Adjudicator | June 22, 2020
The OIA has released new guidance on its approach to complaints. The OIA states, “…it is reasonable to have higher expectations of providers as we move into the next academic year. The context is still very challenging, but providers have had time to adjust to the emerging situation and to plan and develop their provision for the new year.  It is essential for providers to work with their students to explain the practical constraints they are under, and to listen to and understand students’ concerns and try to resolve them”.

Universities open to the world - How to put the bounce back in Global Britain
Kings College London and Harvard Kennedy School | June 17, 2020
This paper highlights the impact that coronavirus (COVID-19) has had on the international student market, and outlines recommendations which could help universities compete more effectively in the global market for international education.


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