Universities and other higher education providers face their own unique set of challenges from the coronavirus pandemic.
The Coronavirus Act and guidance
The Coronavirus Act gives the police wide ranging powers to enforce a lockdown of non-essential activities taking place outside the home. Although this has led to the closure of many cultural institutions and businesses, at the time of writing, UK universities remain open. This reflects the mixed functions of universities including in relation to research and the provision of accommodation. Universities do however need to be prepared for the situation to evolve rapidly. Schedule 16 of the Coronavirus Act makes provision for the temporary closure of educational institutions and childcare premises. Educational institutions may be closed at the discretion of the Secretary of State or delegated discretion of a local authority or the Office for Students (“OfS”).
Whilst open, therefore, Universities must ensure that they keep up to date with, and carefully follow, government advice and guidance from the OfS. As well as monitoring the flow of new advice and guidance, it is important Universities document their compliance with it across the organisation. Having these records to hand may assist with responding to any complaints or claims, including from students, in due course.
The OfS wrote to providers on 25 March 2020 in relation to regulatory requirements during the pandemic. In this letter, OfS stressed that it is “important that providers consider how their responses to the current situation will affect all students and, in particular, those who might be most vulnerable to disruption.” Further, that OfS’s expectation is that providers “should make all reasonable efforts to enable students to complete their studies, for achievement to be reliably assessed, for qualifications to be awarded securely, and to enable a fair and robust admissions process for 2020-21 entrants.” We explore some of these themes below.
It is also important to remember that universities must also continue to comply with applicable ongoing legal obligations to staff and students, including from an employment law, contractual, equalities, human rights and health and safety perspective. Again, documenting compliance including any temporary change in policy, or easing of obligations or contractual forbearance is essential. Care should be taken to reassure students (and staff) that every step is being taken to protect their wellbeing, in order to fulfil universities’ pastoral duties and any applicable duties of care.
Continuity of teaching and maintaining quality and standards
Given the new rules on social distancing, traditional face-to-face teaching is impossible. Universities are looking to fulfil teaching obligations to students by various methods of remote teaching. This does however create teething problems in terms of getting used to technology, loss of face to face contact and in certain disciplines the ability to access essential facilities such as laboratories.
The OfS implemented varied regulatory requirements from 25 March 2020 (which will remain in place until OfS notifies providers otherwise) in respect of reportable events. Details are set out in the annex to the 25 March 2020 letter and the OfS has released guidance on reportable events.
Two new reportable events are:
- Short-term financial risk: The OfS has said that it is keen to understand how quickly providers are likely to experience acute financial challenges in the short term as well as patterns across the sector; and
- The cessation or suspension of the delivery of higher education, including the inability to award qualifications or credit: The OfS recognises that the pandemic creates conditions in which many providers are likely to make changes to the way in which they deliver higher education that would normally be reportable to the OfS. The general requirements in this regard have been removed. This has been replaced with the requirement that a provider is required to report to the OfS if it has taken, or plans to take, certain actions. This includes if the provider ceases or suspends delivery of any higher education courses to current students where reasonably equivalent alternative study options are not provided. Specific examples of the types of event which should be notified are provided by the OfS – including in relation to circumstances where a provider is no longer delivering higher education to one or more groups of student. A provider does not have to report that it has moved teaching online.
On 3 April 2020, the OfS published guidance for providers about quality and standards during the pandemic. The OfS have recognised the steps being taken by providers to ensure that students can continue with their studies. OfS have said that if providers work within the scope of its guidance, students and other stakeholders can be confident that the outcomes delivered for students are meaningful and reliable. It is important to note however that the OfS is encouraging students to notify it of any concerns about arrangements put in place by an individual provider. In its guidance, the OfS has emphasised that providers will remain subject to the ‘B conditions’ relating to quality and standards. Interestingly, the 3 April 2020 guidance refers to the need for broadly equivalent teaching and support (as compared to the reference to “reasonably equivalent” study options in the reportable events guidance). The 3 April 2020 guidance emphasises that providers should consider:
- The action needed to support postgraduate students, including discussing and agreeing with students how they will progress their research during this period, or the arrangements that will be made during this period;
- How to communicate clearly with students about changes and the impact of these, and how ongoing teaching will be delivered;
- How online delivery can replace learning, studio laboratory, practical or other specialist elements of courses. Consider the impact on students of not providing these aspects of courses at all;
- The extent to which planned elements of courses are necessary (or not) or whether any elements could be moved to subsequent years of study;
- How the arrangements put in place to deliver courses affect the ability of different students to access teaching, particularly the most vulnerable;
- Feedback from students about the viability of different options; and
- That some students’ situations are not currently conducive to study, and in such cases, providers should consider what assurances can be offered to students about what will happen if they choose to continue to study via a modified approach to delivery, but then are unable to do this successfully.
The 3 April 2020 OfS guidance emphasises the need for providers to particularly consider the needs and requirements of the following:Vulnerable students and students from underrepresented groups, particularly in terms of access to resources, equipment and facilities to study;
- Students suffering from health problems relating to coronavirus or who now have additional caring responsibilities;
- Students who are also designated as key workers during the coronavirus crisis;
- Students with specific learning difficulties who may be disadvantaged by an alternative approach to teaching or assessment;
- Students across different subject groups; and
- Students in their final year of study.
Universities should be live to the pressures placed on students during these unpredictable times and the OfS has emphasised the need to make sure that equivalent arrangements for mental health and wellbeing support services are maintained. For example, it may be possible to provide welfare services remotely. Students may also face financial pressure. The OfS has said that it expects providers to deliver financial commitments made under access and participation plans, and that providers should continue to provide support via bursaries, scholarships and hardship funds.
Universities’ obligations under the Equality Act also continue. The OfS has said that providers should ensure that their approach to making reasonable adjustments to assessment arrangements for students with a disability remain appropriate and effective in the current environment. In adjusting courses and assessments, universities should anticipate the needs of those with protected characteristics, and should have systems in place to deal with individual requests. It is quite possible that adjustments required as part of the pandemic response will have unintended consequences, and universities will need to be in a position to respond to e.g. requests for reasonable adjustments quickly and robustly. Again keeping a clear audit trail of a compliance with the guidance and internal decision making in that regard will be important.
Assessments, exams and degree classifications
The pandemic has hit right before exam and assessments season, and there is little student appetite for the cancellation or postponement of final exams; especially given that there is no clarity on how long the present circumstances will continue. Universities have taken a mixture of approaches so far, with many of them yet to release full details of their plans. Some institutions have cancelled all non-final year examinations, with the option for final year students to either sit final examinations remotely or take an unclassified degree. Other institutions are looking to provide grades via a moderation process carried out by students’ tutors. This may alleviate some pressure on exam-takers but provides potential for claims of favouritism, bias or discrimination, which may trigger various academic processes including appeals against marks awarded and complaints. Some universities are offering a “safety net” for their final exams, whereby students, as long as they pass, will not receive a degree classification lower than their second-year exams. The range of different approaches all emphasise the delicate balancing act between safeguarding universities’ reputations for academic rigour; the welfare of individual students; maintaining the integrity of “final” marks (e.g. by avoiding a raft of subsequent challenges); and ensuring that students have what they need for the future in entering the job market.
In each case, universities will need to consider whether their own academic regulations facilitate the new proposals, and make amendments where needed. This includes the examination process itself, marking, moderation, and reviews or appeals. Universities will also need to look at the existing arrangements they have with examiners (contractual, practical or otherwise) to ensure that any new approaches are covered. In the event of appeals, complaints or claims, it will be important to be able to point to rigour in assessment related processes. The OfS has underlined the need for the award of qualifications to be evidence based and has said that an awarding body needs to exercise good judgement about what might constitute sufficient evidence in these circumstances.
The OfS’s 3 April 2020 guidance suggests the following practical measures in relation to assessments:
- Providers will need to determine the extent to which each component of relevant assessment is necessary to determine the award of credit or a qualification;
- An awarding body should actively consider whether it can award credit, or deem modules or units to have been successfully completed, where students have not completed all planned assessments, and should do so wherever possible;
- With an increased reliance on online learning providers should ensure there is clear guidance in place for their students on what represents cheating and the consequences of this;
- Plans for continuing with assessment as originally intended, as well as any plans for alternative approaches, should take account of: the needs of different student groups, and of students directly impacted by coronavirus, who may either be experiencing health problems themselves, or caring for others. This may require flexible use of a provider’s normal approach to considering mitigating circumstances;
- If a provider decides it cannot make a reliable assessment because there is insufficient evidence that students have achieved required outcomes it will need to make arrangements for students to be assessed when it is possible to do so;
- In these circumstances a provider could also consider offering students the choice to complete the outcomes for a different qualification where standards can be maintained; and
- Providers should consider whether they need to make changes to the way they assess postgraduate research degrees in the current period. This is likely to include arranging remote vivas.
The OfS’s revised regulatory requirements make clear that a provider has to report if it is unable to award qualifications or credit for any unit, module or course. Universities will need to remain particularly live to this obligation in the context of assessments, which normally involve a practical element, and where it may not be possible to assess a certain aspect of the course.
It is also important that universities consider the position in relation to professional courses. Providers should take decisions in consultation with the relevant professional oversight body. Relevant guidance is available in relation to nursing, medical and law students.
Inter-university dialogue may be helpful, as problems will be exacerbated if institutions take different approaches across the same disciplines. This will create issues down the line for students and for their future employers or providers of post-graduate education, as it will be difficult to create accurate comparisons between candidates.
Admissions and international students
Managing admissions for the 2020/2021 academic year will be difficult, as many students hold conditional offers based on their A-Levels. These have been cancelled, meaning that teachers are largely responsible for assessing marks. There is a risk of generous assessments, meaning numbers enrolling in the autumn may be inflated. However, there may also be increased numbers of students, including those from overseas, wishing to defer to 2021/2022 due to ongoing uncertainty. The OfS has made clear that it does not expect to see changes to offers already made to applicants for 2020-2021 because of coronavirus. The OfS has particularly stressed that it does not consider that changing a conditional to an unconditional offer in response to the current situation is likely to be in the best interests of students. On 3 April, the Universities Minister extended a moratorium on unconditional offers to 20 April 2020.
The OfS has also made clear that universities need to report circumstances in which a provider withdraws offers made to applicants due to start a course on or after April 2020. However, providers do not have to report circumstances where the planned start date of a course is postponed or where it has transferred offers to an equivalent course due to start in 2020-21.
There are ongoing concerns as to the impact of a potential reduction in numbers of international students, although it is too early to see the direct impact of the pandemic on these numbers and finances.
Students have largely vacated their student accommodation for their family homes, although government guidance has restricted this in cases where the only way to go home is by public transport. The Universities Minister has now made clear in letters to universities and students that the Government’s advice is that students remaining at university in England should now stay where they are and not attempt to travel. This means that students living in student halls or private rented accommodation should remain there and stay indoors whilst current restrictions are in place.
Evictions of students have been paused on the same principles as evictions in the private rented sector. However, some students contractually committed to paying for university accommodation they will now not be using over the summer term, so there have been demands from student unions to cancel the contracts and save students the rent payments – if accepted, these demands are likely to cause financial issues for institutions. The situation is even more difficult for students tied into paying for private sector accommodation, where even if the university is sympathetic it may not have much sway - although, Labour are lobbying Government to ensure that adequate protections are put in place to protect students having to pay rent for empty accommodation, and that there is parity of treatment for students in university accommodation and those renting from private landlords.
Claims and complaints
All of the above means that there is potential for complaints or legal claims from students who are dissatisfied with the disruption to their planned studies, and to the overall university experience. Offers accepted after 1 October 2015 are protected by the Consumer Rights Act, and the information published by institutions about their courses, services and facilities at the time of acceptance form part of the contract and cannot be varied without express agreement. Failure to deliver in accordance with relevant terms and conditions could mean that students are entitled to claim certain remedies, including a refund of at least a proportion of tuition fees. The OfS emphasised in its 25 March 2020 letter that consumer protection law continues to apply and that universities will need to ensure that contractual terms and conditions for students are fair and easily understood.
Universities who are concerned that they will not be able to deliver contractual obligations to students will need to review the relevant terms and conditions, with particular reference to force majeure clauses, frustration and other possible events of default. These clauses turn on the precise wording and application to particular underlying circumstances. Reliance on force majeure can be difficult as courts interpret these clauses strictly, and construe ambiguities in the manner most favourable to the consumer (student). In particular, there will be questions as to whether the terms of a particular clause cover the pandemic. The coronavirus outbreak is an unprecedented event, and it is possible that courts will be generous to institutions, especially given that government guidance has forced their hand on suspending normal operations.
The UK Quality Assurance Agency has also published its own guidance
For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page