Milly White opened her graduation gown on stage at a Liverpool university ceremony last week to reveal a “I want a refund” sign, expressing how tens of thousands of young people feel about their UK higher education experience.
However, the criminology graduate, who said most of her three-year study consisted of pre-recorded videos despite paying an annual tuition fee of £9,250, did not just object. Along with about 120,000 other recent graduates and current students across the country whose studies are disrupted due to the Covid-19 pandemic and faculty strikes, the 22-year-old has registered to sue her university.
The legal action has received considerable backing: a US litigation-finance firm, TRPG Capital, has invested £13 million to fund a wave of “class orders”, akin to US class action lawsuits.
The first case, against University of Londonwas brought to the Supreme Court on behalf of about 1,000 students who are demanding compensation for canceled lectures, substandard digital tuition and restricted access to the library, labs and other facilities.
Thirty-five percent of any payments will be used to pay legal fees and sponsor the litigation under a “no win, no fee” agreement.
Many lawsuits are threatened. So far, lawyers representing the students have sent “pre-claim letters” to 17 other organisations, including Bristol, Nottingham and Warwick, as well as Liverpool.
The students in the closely watched UCL test case announced their partial early win last week. UCL has urged students to follow its complaints procedure, or arbitration process for resolving higher education complaints, before pursuing litigation.
But judge Barbara Fontaine, a senior martial artist with King’s Bench Division, said the students were not required to do so. Instead, she encouraged both sides “on the strongest terms possible” to reach an agreement and ordered the proceedings to be halted for eight months.
Professor Kathleen Armor, vice-chancellor at UCL, said the university was pleased with the decision, adding: “We remain confident that our complaints process is the best avenue for our students.”
If successful, the requests could lead to a combined payout to the UK higher education sector of up to hundreds of millions of pounds. But some attorneys and solicitors warn that the students could face an uphill battle to win.
Ane Vernon, head of education at the law firm Payne Hicks Beach, said such cases are not easy to bring up. She said: “It is understandable that students are saddened that their college years have been affected by Covid and industry action, but the challenge will be to prove liability for the loss.
The bottom line in the students’ case was that the universities breached their contract because the service they received was inferior to the service they paid for – the equivalent of a vacation company providing a worse experience than advertised.
Shimon Goldwater, partner at law firm Asserson, which represents the students, said they are entitled to a refund for this “difference in value”. Universities “cannot provide services” [in full] and therefore, they need to lower the price,” he said.
Students pointed out that many private schools have switched to online teaching in the past pandemic offer fee discounts, as opposed to universities.
In the case of UCL, they reckon the university has had “bumper” financial years during the pandemic, increasing tuition income by 41 per cent between 2018 and 2021 and more than doubling its surplus from £53.5 million in 2019-2020 to £128.3 million in 2020-21.
In a court filing, UCL noted that its contracts with students stipulate that the university will not be liable for losses arising from both “industrial action” and “government restrictions and concerns regarding the transmission of serious diseases.”
Plaintiffs objected that simply because such provisions were included in the contract did not make them enforceable. According to them, the provisions “create a clear imbalance” of rights between students and UCL and as such are “unfair and unenforceable”.
Even if the students were able to establish a breach of contract, legal experts warn that they may have difficulty quantifying the extent of the damage.
Lawyers representing the students argue that online courses are often cheaper than comparable face-to-face courses, citing lower tuition fees at the Open University, a distance learning specialist, for example.
They used the gap in fees between digital and on-campus courses to help calculate the average claim of £5,000 for domestic students, whose degrees have mainly been submitted online during the pandemic.
UCL denies that the Open University is a suitable comparison and says its tuition fees for online and in-person degrees are the same.
Charlotte Hadfield, head of education at 3PB attorneys general, said difficulties facing students “are not necessarily insurmountable”. But she added that “calculating a student’s loss in a higher education claim can be very difficult.”
Some lawyers warn that achieving “market value” of government-capped tuition fees for university students from England, Wales and Northern Ireland is an open question, let alone quantifying the damage caused by the disruption.
“It’s hard to see that as a price like a car or a vacation,” said Smita Jamdar, head of education at the law firm Shakespeare Martineau.
Adding to the complexity is the structure of the tuition system, whereby student loans are only repaid above a specific income threshold after graduation. The students argued that the compensation should go directly to the affected individual and not to the Student Loan Company.
But Jamdar says: “Some students will never give anything back because they never made enough money to activate it.”
Regardless of the merits of opposing legal arguments, universities may have broader considerations. The sight of demoralized students coming to court is taking a toll on an area that has been damaged not only by the pandemic, but also by years of industrial activity.
Goldwater said universities “should be concerned” about the reputational risk arising from litigation. “I hope that will be something they take into account” in settlement negotiations.
UK universities, which represent the sector, said in a statement they were “proud” of how universities have responded to recent “unprecedented” challenges.
The University of Liverpool said it appreciated the fact that some students have had “difficulty” over the past few years. It has provided a “high-quality learning experience” during the pandemic, while ensuring compliance with health and safety regulations.
The university noted that recent industry action has taken place across the country, adding: “We have made it a priority to minimize any direct impact on our students.”
White, a Liverpool graduate, said: “It would be great if it [the lawsuit] is success. But, really, I just want to feel like I haven’t missed any stones.”
Tuition is “crippled as it is” but “when it’s not even worth it – when you’re given such a terrible service – it just makes it so much worse”.
Noting that she’ll see student loan repayments paid out of her paycheck years later, White added: “It’s really important that universities hold themselves accountable.”