Fed-up fee-payers set to sue

August 6, 1999

Universities face a wave of student litigation because of a failure to grasp their changing contractual relationship with fee-paying undergraduates, an academic lawyer has said.

Tim Birtwistle of the School of Law at Leeds Metropolitan University predicted a flood of law suits from dissatisfied students unless universities take immediate action to tighten up administration. His projection is based on a survey of 48 universities.

Mr Birtwistle, a principal lecturer, found that only a minority of universities surveyed understood the potential impact of the introduction of fees. "There can be no doubt now that students hold a consumer contract with their university," he said. Mr Birtwistle said that now students pay their fees directly means they are, in legal terms, buying a service. They are therefore entitled to private law redress for breaches of contract.

He said: "The shift in contract status, and the effects this should have, appear to be dawning on only a minority of institutions. The legal profession is gearing up for increased activity and if institutions wish to avoid distracting, expensive actions that bring only adverse publicity, then they too need to analyse their own materials and assess the possible impact of poorly drafted documentation and overambitious claims."

Mr Birtwistle said that in the past universities have relied on get-out clauses such as "modules subject to availability" in their prospectus. But he warned that under the new consumer contract, these would not stand up in court.

Dennis Farrington, deputy secretary of Stirling University who has also researched student contracts, argues that students have always been able to sue for breach of contract but concedes that direct payment of fees makes the commercial nature of the contract more obvious. "It has never been more important for universities to ask whether what they are offering to students is reasonable."

Mr Birtwistle recommends that to avoid being sued, universities need to specify what is on offer in clear language before any contract is entered into. And the terms need to be fair and reasonable.

"What has not been recognised is the cumulative effect of the 1998 act with regard to the student-institution contract and the immediate need for universities to revisit their documentation and procedures," he said.

Mr Birtwistle's countrywide survey of registrars reveals that less than a third believe the introduction of fees changes the student contract in a strictly legal sense. In addition, only a quarter think their complaints, grievances and appeals procedures need redrafting.

Mr Birtwistle said it was likely that private law remedies would largely replace public law avenues of grievances and appeals in all areas with the exception of academic judgement - for instance in a dispute over marks.

The warning was echoed this week by law firm Beachcroft Wansbroughs. Stephen Hocking, in the firm's education law group, said: "Over two years ago we told universities it was only a matter of time before students successfully claimed large amounts of compensation for poor teaching.

"We warned that if universities did not wake up, both they and the students would lose out. We were right and we can expect to see more and more claims for compensation for poor-quality courses. University quality is not just in the hands of the individual institution any more, it is now a legal issue."

Mr Hocking said litigation would spread more widely still to cover claims for failure to follow published procedures such as dealing with illness during exams or withdrawing modules.

"If an institution does not put its house in order, the courts will step in and do it for them. Ignoring this new reality is no longer an option."

Student survey, page 8

* REGISTRARS FAIL TO GRASP CONTRACT RISK

Over half (58 per cent) of the 48registrars surveyed in a cross-sectionof universities saw the student as a "consumer".

Less than athird thought the introduction of fees meant students now held a consumer contract in legal terms. But a third of respondents said that they would alter their prospectuses on the grounds of "fairness" .

A quarter intended to redraft complaints, grievances and appeals procedures. The same proportion expected to alter delivery of courses to take account of the new contract.

The survey found that 69 per cent of registrars regarded the change to the fee system as a detriment to their university. Three-quarters said they would attempt to collect bad debts from students using the courts.

All said that if action was taken, the student - not the parent - would be sued.

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