DPalfreymanPresentation

The Student-University Legal Relationship HEPI, London & IoE MBA (HEM), Aston, May 2011

The Student-University Legal Relationship

• David Palfreyman • MA MBA LLB FRSA • Director, OxCHEPS, New College,

University of Oxford

• © David Palfreyman, 2011

Background Material: • Farrington & Palfreyman, The Law of Higher Education (2006, Oxford University Press Legal Practitioner Series): 2nd ed, 2012 • As updated online at the Law Updates page of the OxCHEPS website (www.oxcheps.new.ox.ac.uk) • And as supported by the HE Law Casebook at the OxCHEPS website • See also the entry for ‘universities and higher education’ (pp 1214/15) in The New Oxford Companion to Law (2008, Oxford University Press); and various items at the OxCHEPS Papers page

F&P detail… • Ch 13, ‘The Student-HEI Legal Relationship’ • Ch 14, ‘The Student as Consumer?’ (note the ‘?’) • Ch 15, ‘The Role of Judicial Review in the Statutory HEIs’ • Ch 26, ‘Risk Assessment and Management’ • Ch 27, ‘Dispute Management: Mediation and Litigation’

CHANGE IN HE • • • • • • •

COMMODIFICATION COMMERCIALISATION ‘CORPORATISATION’ ‘CONSUMERISATION’ ‘CHARTERISATION’ ‘CONTRACTUALISATION’ = complexity & confusion!

OFFA & DATA? • OFFA will ensure an HEI provides to potential applicants not only data about itself in broad terms (eg employment of its graduates) but also about its degree courses (eg contact hours, lecture/seminar sizes). • And a ‘student charter’ is encouraged. • Is such data a possible source of actions over alleged misrepresentation? • Is such a ‘student charter’ in effect a studentuniversity contract of binding legal force? • Is such ‘a student-university contract’ an innovation for most HEIs? • Is such data or charter or contract of interest to the OFT nationally and to Trading Standards locally?

OFFA & ADMISSIONS? • Duties of OFFA under HEA 2004 and its SI? • Duties relate only to widening the socioeconomic mix of ‘applications’ to HE generally, not to specific HEIs (or courses). • And duties do not relate to ‘admissions’ to HEIs generally or individually, nor to the generation of a socially diverse or balanced ‘student body’ at any particular HEI. • Indeed, there is a positive legal obligation or duty upon OFFA to protect HEI autonomy in relation to admissions. • Government’s Feb’y 2011 ‘guidance’ to OFFA and OFFA’s subsequent March 2011 ‘guidance’ to HEIs re access plans: latest… • Judicial review as to OFFA being ultra vires?

THE RELATIONSHIP • The essence of the student-university legal relationship: • is clearly contractual (the contract-toeducate as in Clark, CA, 2000; Moran, 1994; C19 cases; and common law in USA/Canada/etc – see Ch 29); and • is a B2C contract (hence role for OFT, and the range of consumer protection legislation). • But it can also give rise to torts (academic malpractice or educational negligence) – Hedley-Byrne, 1964; and Phelps, HL, 2002 – yet not in the USA!

The Contract/Agreement? • Not explicit; implied terms; finding the large print let alone the small-print; one-sided. • Contract law issues: misrepresentation and breach; causation and remoteness; remedies and damages; entire contract term; refunds. • Award of disappointment damages? • Complexity of ‘fitness to practise’. • Access to the Court only via/after OIA? • Use of mediation anywhere along the line. • Or, in public law/administrative law terms, go via judicial review re process/procedures? • Or, invoking statute, try for discrimination (especially DDA), and chuck in a claim under the HRA/ECHR!

Consumer Law • S13, SGSA 1982 – ‘with reasonable care and skill’ (cf s14, SGA 1979) • UCTA 1977 re limitation of liability • UTCCR 1999 re unfair terms • TDA 1968 re false descriptions • CPA 1987 re hidden charges • DSR 2000 re distance selling

‘Get Out of Gaol Free’? • F&P, para 13.33: ‘A special feature of the law of higher education is the immunity from judicial scrutiny of expert academic judgement (but not relating to the misapplication of HEI processes and procedures) – an immunity to be found for similar public policy reasons in all common law countries…[see ch 29] and also in civil code countries…[see ch 30]’; and ‘Likewise, the OIA is not permitted to handle student complaints over purely academic matters’ (s12(2), HEA 2004 re ‘matters of academic judgement’). Link to concept of academic freedom and university autonomy – ch 16 of F&P? CONTINUED…

Expert Academic Judgement • F&P, para 13.33, fn 126, quoting Sedley, LJ, in Clark (CA, 2000 – at OxCHEPS HE Law Casebook): ‘There are issues of academic or pastoral judgement which the university is equipped to consider in breadth and depth, but on which any judgement of the courts would be jejune and inappropriate.’ (See also cases involving London Met, HEFCE, and the U’y of Plymouth…) • But note confusion in Hansard (12/2/2004, cols 94/95): such immunity will not protect ‘a lecturer who plainly was not giving good lectures or was not qualified to give the lectures in question’ – and also note s14, SGSA 1982 re ‘with reasonable care and skill’ along with the Bolam test re professional competence. • And hence consider the continuing validity of such immunity in the context of C21 HE as, seemingly and increasingly, a skill and competencies, vocational training, ‘get a better job’, (higher) fee-charging (even profit-making), instrumentalist, commodified, B2C consumer service…

H&S + TORT – and L&T... • • • • •

Labs Study-Abroad Campus infrastructure Corporate Manslaughter Act (10%) ‘Quiet enjoyment’ (in terms of licence or tenancy; but in either case also issue of illegal eviction as in Wolfson College at Oxford)

And DPA + ??? • Information Commissioner’s new power to fine up to £500k – one at £100k and one at £60k so far... • Note the MANY rulings against HEIs re disclosure under the DPA (and also under the FOIA). • Competition Law re fees. • Bribery Act re recruiting agents.

FUN CASES... • • • • • • • •

St Andrews & Odessa Young v Bella – C$840k Rycotewood & disappointment The Baked Beans ‘case’ at SOAS Oxford Brookes & cohort damages Oxford Brookes & exam trauma Belfast & marking Cardiff & exam board bias

PENDING ISSUES? • STRIKES: liability of HEIs under the contract (invoke force majeure or frustration clause)? • CLOSURES: liability to applicants re offers made or to students midcourse? • AFFIRMATIVE-ACTION (or positive discrimination): legal in relation to offers? (English common law, EU Law, HRA/ECHR, USSCt )

KEY DRIVER OF CHANGE • Increasing tuition fees • = increased student expectations & consumerism? • = more & better teaching? OR • = more & bitter complaints? • = more business for the OIA? • = more JR activity? + contract suits? + academic negligence suits? (= buy F&P 2012 at £125!)

HEIs PREPARED? • Increased fees • = investment in teaching? OR • = investment in: a one-sided student contract + PR spin + student advisors + academic staff training in customer-care + a campus ombuds + complaints handling + ADR/mediation + defense lawyers + a large compensation/payout fund?

THANK YOU! • (Please note that, in the event of any complaints over the quality of this presentation, I shall invoke the linked concepts of academic freedom and judicial deference to the exercise of expert academic judgement – while also pointing out that the IoE is not paying me much, so just what do you expect by way of effort?)