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
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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...
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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...
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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?)