Universities must pay the legal costs of exposing their mistakes

Students should not be left out of pocket for pursuing legitimate claims against their institutions, say Daniel Sokol and Bradley Talbot

March 11, 2021
Paperwork for a compensation claim sits on a desk with a gavel
Source: iStock
When universities get in wrong, they need to cover all the legal and other fees students have incurred in challenging them

Simon was a final-year undergraduate accused by his UK university of buying an essay from someone else. Despite maintaining his innocence, he was expelled.

He approached a barrister, who instructed an expert in forensic linguistics. Armed with a detailed report, the student appealed and was reinstated. The university accepted that he had, in fact, written the essay himself. Yet Simon received no apology and was left footing the bill for his legal costs.

Ella was a medical student. One day, the medical school informed her that fellow students had made allegations of misconduct against her. Since it refused to provide her with details, she asked for a full investigation. This request was turned down on three separate occasions.

A year later, and only hours before Ella’s fitness to practise hearing, the medical school – on the advice of its lawyer – agreed that a full investigation should have taken place and the hearing was adjourned. Because Ella had hired a lawyer to represent her for this potentially life-changing hearing, she had already spent £4,000 in legal fees. The medical school refused to reimburse her wasted costs.

Alex was also a medical student. He suffered from severe back problems and the university agreed to provide him with an ergonomic chair for his exams. In one particular exam, however, the university forgot to do so and Alex failed.

When he appealed – supported by a costly report from a well-known ergonomics expert – the university blamed him for not alerting it about the missing chair at the time. So it was his fault, not theirs, they argued. Alex went to the Office of the Independent Adjudicator (OIA) – the statutory arbiter of student complaints in England and Wales – and won the case. Yet he had wasted years and thousands of pounds in legal and expert fees. He entered the job market two years later than he would otherwise have done and also experienced mental health problems from the stress of the proceedings. The university offered him only £1,000 in compensation.

In our experience as lawyers specialising in higher education, it is rare for UK universities to reimburse or compensate students who have suffered prejudice as a result of institutions’ own errors – and when they do, the sums are usually derisory. Even the compensation recommended by the OIA is too low to engender fear in universities. According to the ombudsman’s booklet Putting Things Right, awards of up to £500 are appropriate in cases of “unreasonable or avoidable substantial delays (e.g. over six months) which caused [the student] some distress and inconvenience” or “procedural irregularities” leading the student to “suffer actual disadvantage”. In our experience, the OIA rarely awards any compensation in excess of the low thousands of pounds. It might not be popular with universities, but the OIA needs to sharpen its teeth and recommend levels of compensation that will bite.

The financial repercussions for universities of “getting it wrong” are therefore minimal; institutions are not incentivised to improve their standards of decision-making. Yet they often lose out in other ways. Feeling powerless in the face of Goliath, an increasing number of students are turning to the press to share their grievances and shame their universities. This can cause significant reputational harm, clashing with the student-friendly image they seek so hard to portray in their recruitment materials and lofty student charters. (In the rare cases where students, perhaps aided financially by their parents, take the matter to court, universities can again suffer a huge cost in reputation, as well as the time and money required to defend themselves.)

One reason to offer proper redress and heartfelt apologies for mistakes, then, is to cultivate a better reputation among students, their friends and relatives. The message would be: “We try hard to minimise errors, but, if we do make them, we’ll compensate you properly for any prejudice you have suffered as a result.” This contrasts with the current message of “We don’t make mistakes and, if we do (which we don’t), tough!”

But, more than that, offering fair compensation is the decent thing to do. There is a huge imbalance of power and resources between universities and students, which universities can abuse with ease. Students challenging unfair university decisions do not seek a windfall but merely the recovery of their legal expenses and any other necessary costs incurred, such as expert reports.

Universities’ collective failure to offer fair compensation to those they have failed is a little-known but major injustice. Any sector claiming the ethical high ground ought not to wait for a directive from the ombudsman or the courts before rectifying it.

Daniel Sokol is a former academic and a barrister specialising in higher education matters. Bradley Talbot works as a legal assistant at Alpha Academic Appeals. Names have been changed throughout.

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