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University students have every right to feel aggrieved. Having paid hefty tuition fees, they now find themselves confined to their homes receiving a very different learning experience to that expected. To add insult to injury, many will already have experienced disruption due to strike action.
Those with children at private schools are in a similar position. Thanks to the current restrictions, such parents will now have the privilege and responsibility of providing teaching that they have already paid others so handsomely to deliver, assuming they’re even in a position to do so.
Understandably, students as well as parents are keen to know what their legal rights are. Can any form of refund be claimed or are they expected to just “suck it all up” and write off the money?
Unfortunately, there is no straightforward answer to the question, not least as the underlying law is complex and as each provider is likely to have its own individual terms and conditions.
Much is likely to depend on whether the contract with the university or school in question has a so-called “force majeure clause” in any form to fall back on. For the uninitiated, force majeure deals with situations where performance of a contract is either prevented, hindered or delayed as a result of specified events outside the parties’ control. Depending on how the force majeure clause is drafted, the provider’s obligations under the contract will either be suspended until the relevant event has ended or, usually after an extended period of the event continuing, the whole contract will be terminated.
Questions for students and parents to ask are; is coronavirus an event which is covered by the provider’s force majeure clause; has coronavirus prevented, hindered or delayed the delivery of education; and has the provider complied with any notice or procedural requirements specified in the terms. If the answer to any of these questions is “no”, the provider may struggle to rely on force majeure, be left in breach of contract and liable to refund some or all of the fees.
Another point to note is that, even where a force majeure situation does arise, a provider will still be under a duty to take reasonable steps to mitigate the impact. In an educational context, this is likely to involve making use of technology to deliver teaching. Where teaching has been cancelled or heavily cut back, it would be reasonable to ask why it cannot be provided online.
Where a university or school is able to rely on force majeure, there will not generally be any entitlement to a refund. This is because the rule is that each party bears its own costs and losses. However, even this may not be the end of the matter. This is because, in circumstances where students or parents have paid a lot and received very little, (or where for example, the clause is not very intelligible or it creates a significant imbalance between the parties) it may be that the situation is deemed ‘unfair’ (and therefore non-binding) under the Consumer Rights Act 2015.
Another legal concept to be aware of is that of “frustration.” This comes into play where performance of a contract has become impossible or radically different from originally contemplated. It won’t usually be in anybody’s interests to invoke this as its effect is normally to bring the contract to an end. It may, however, be of interest to parents who wish to withdraw their children from school without being hit for the standard term’s notice.
Students or parents who are now receiving little or no education but have been offered no refund may feel they have little or nothing to lose by challenging the provider. This can be done by way of a formal complaint or a County Court claim. Either way, given the complexity of this area, it is well worth obtaining legal advice and representation, the cost of which needn’t be outrageous if shared between a group of parents or students at the same school or university.