NUS alarmed by 'one-sided' student contract

July 13, 2007

"This has confirmed my worst fears," said Wes Streeting, the National Union of Students' vice-president for education.

A draft student contract drawn up by commercial lawyers for the Association of Heads of University Administration, obtained by The Times Higher , would limit students' rights if universities fail to deliver the quality and facilities they have promised.

"It places a heavy burden on the student while requiring little commitment from institutions," Mr Streeting said.

The document is described by Dennis Farrington, director of the Universities and Colleges Education Law Network (UCELNET) as "the most legalistic and one sided contract I have seen in many years of studying this issue".

It seems that the backlash by universities against the growing concept of fee paying students as "customers", with full consumer rights, has begun in earnest.

Dr Farrington, author of The Law of Higher Education , said there had been a clear shift of late towards legalistic student contracts, with institutions attempting to "cover every eventuality in defending themselves against claims" from aggrieved students.

A survey of 70 universities by Universities UK in February found that nine universities, including Bristol, Leeds, Oxford, Chester and Aberdeen, already had a formal student contract in place, designed to "clarify the terms" of the relationship between student and university.

Some 17 institutions were in the process of developing a contract or were considering doing so.

Leeds University's student contract gives the university the right to "change or cancel parts of, or entire, programmes of study or services at any time without liability" in circumstances including industrial action, staff illness and lack of funding.

Chester's contract states that the university "does not accept responsibility, and expressly excludes liability" for any loss suffered by the student "as a result of any... act or omission of the university or its employees or agents". Chester said it was simply "trying to avoid occasions on which we would be forced to pay out large sums of money", in line with other universities.

It is clear that students, now paying fees of up to £3,000 a year, are increasingly ready to complain if they do not feel that they are getting value for money.

The Office for the Independent Adjudicator for higher education accepted 462 complaints in 2006, up from 338 in 2005. In just the first six months of 2007, the OIA received 314 complaints. Many cases cited inadequate delivery of courses.

Universities, often pushed into making ever more ambitious claims in prospectuses about the quality of their courses to compete for students, are increasingly vulnerable to complaints.

In its response to the UUK survey, Sunderland University commented that it was "increasingly important" that "institutions' 'offer' is not overstated". It said there must be a distinction "between statements that form part of the contract, and statements that, being merely sales talk, would not be construed as forming a term of a contract".

The AHUA contract states that, with certain other documents, it forms "the entire contract between the university and the student. They replace any other promises or representations in relation to the student's course made by the university."

Mr Streeting acknowledged that contracts are a response to growing market pressures but said they would prove counterproductive. "A contract isn't a suitable way of governing and defining the student-university relationship," he said.

"We'll end up with a David and Goliath situation, with universities and their armies of lawyers against their students."

The NUS believes universities would do better to encourage early-stage mediation. "A mutually agreed students' charter, setting out what students can expect in a post-fees era, might also be a good idea," Mr Streeting said.

Salima Mawji, a lawyer with Match Solicitors, presented an example of two student claims at a UCELNET conference held in June. In one case, a student accused of plagiarism was absolved, but not before she had appeared before two panels that did not follow procedures. She is considering a claim for a two and-a-half year delay in gaining her degree. In the second case, a PhD student was excluded for refusing to allow a supervisor, about whom he had complained, to be listed as a co-author on a publication.

"These students are seeking compensation now, but if the universities had reviewed these cases early on and followed procedures they would not have reached this stage," Ms Mawji said.

She is unconvinced of a need for a student contract. "The existing regulations, ordinances and statutes form a clear basis for a university student relationship. The point is that the staff in these cases did not comply with those regulations."

Ms Mawji believes that student charters and mediation would be more productive than contracts. "Universities aren't using mediation enough. Students are not out to get packets of money; they want to get their degrees and move on."

Since last year's pay dispute, universities have sought to manage the risks arising from industrial action.

John McMullen, head of employment law at Watson Burton LLP said: "Industrial action is likely to be the next pressure point. If students don't get their lecturers, or they don't graduate on time, or they've had their degrees assessed without an exam they're going to raise these issues with the OIA or in the courts."

Contracts excluding all liability would not be viewed favourably, especially if university staff were striking, Professor McMullen said. "Universities should commit to making alternative assessment arrangements, for example."

His view is that now is a good time to clarify universities' and students' rights and responsibilities in a single document, but if universities were to adopt the AHUA document it would be "a massive sea change".

"It looks like a contract for the sale of goods; it's not very user-friendly," he said. "The other thing to remember is that this contract will not affect the OIA's ability to consider whether the university was behaving in a fair and reasonable manner."

UCELNET is drawing up a statement of principles, which Dr Farrington said could underpin the existing contractual relationship between students and universities.

Legal documents such as the AHUA's are unnecessary, he believes. "Creating a formal contract is an over-reaction, dreamt up by university managers," he said.

"I don't think anything like this should be imposed without debates in senates and with students."

When contacted by The Times Higher , the AHUA declined to comment.

Solicitors' view of model contract

The AHUA model contract, drafted by solicitors Pinsent Masons

If the university discontinues or makes significant changes to a student's course after term has commenced, it will make a "reasonable offer of alternative arrangements".

Guidance from Pinsent Masons states: "Unfortunately, it is inescapable that if a university does discontinue a course on which the student is studying, the university will be in breach of contract and will be forced to settle the matter with the student or face a justified complaint or claim."

The university shall deliver the parts of the student's course which are within its control with reasonable care and skill.

Guidance states: "There is no definition here of a minimum amount of teaching from the university... it is not recommended that such a clause is inserted."

The university shall make available to the student suitable learning support facilities and other services. The university may make reasonable variations to the services and facilities provided.

Guidance: "This clause has been drafted to be as wide as possible and not commit the university to any particular level of service, other than that which is suitable."

This contract is only enforceable by the student and the university.

Guidance: "The student's parents may not sue the university for an alleged breach of the contract."

The contract excludes liability for failures arising from industrial action by university employees.

'University education is already a rough deal'

Donna Bowater, who has just finished an English literature degree at Warwick University, explains why students need a voice - and an ultimate recourse - when things go wrong with tuition

When Samuel Taylor Coleridge said: "There is one art of which man should be master - the art of reflection", he was surely thinking of his time spent studying classics at Cambridge University.

Clearly not much has changed over the past 200 years, at least in the arts and humanities, as students' time for reflection has increased in proportion to a decreasing number of teaching and contact hours.

I sympathised with Steven Hayes, a student at Bristol University, when he revealed last year that his timetable involved just two hours' scheduled contact time. My timetable over the past three years has involved about eight hours a week of seminars and lectures, instead of the minimum ten hours that Warwick University told me I would have when I applied.

I admitted to one fellow student in my first year that the free time allowed me to participate in extracurricular societies that students with a heavier workload could not. He replied: "But at least they're getting their money's worth."

By my third year, I rued the limited contact time I had with my tutors; understanding King Lear based on one seminar and one lecture was not the intellectual challenge I had expected.

Even before the introduction of £3,000 top-up fees, the experience of being shafted by tutors' research and other commitments is both common and disheartening. University education is already a rough deal for students, who feel second or third on their university's agenda.

To downgrade students in the list of universities' priorities further by asking them to sign away their rights to complain in the face of neglect (or, in consumer terms, poor service) is alarming indeed.


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