Ellie Mitten and Sophie Phillips discuss whether schools and universities are offering ‘reasonable’ alternatives and the meaning of the recent guidance.

An update – are schools and universities offering ‘reasonable’ alternatives and what does the recent guidance mean?

Ellie and Sophie recently wrote an article regarding parent/student contracts and liability for paying tuition fees during the Covid-19 pandemic. This supplementary article seeks to address the guidance which has been released in recent weeks, and provides some consideration of the ‘reasonable’ alternatives being offered by institutions and the extent to which these may be deemed acceptable (or not) in the circumstances.

The original article can be found here.

Relevant factors and ‘reasonable’ alternatives

As the lockdown has progressed, it has become evident that the remote learning services being offered are of differing standards between institutions, with some offering services which are far superior to others. This is particularly so in the case of independent schools. Some independent schools are effectively offering pupils a full timetable, with plenty of contact time with teachers and opportunities to review work and consolidate learning. In contrast, other schools are offering little to no contact time with teachers – disseminating worksheets or PowerPoint presentations, but expecting parents to supervise and effectively teach topics, or for the child to be able to learn independently.

There will be some scenarios in which the latter presents fewer barriers to learning. Parents who have been furloughed, for example, may have more time to supervise and assist their children with teaching than those who are still working full time, remotely or otherwise. Children who are approaching university age might be expected to be more able to independently research and grasp topics with less input from a teacher or parent. Less ‘hands on’ remote learning services may therefore be appropriate for certain pupils and highly unsuitable for others, depending on the specific circumstances.

That being said, the amount of contact time offered with a teacher by online platforms such as Skype or Zoom will likely be highly relevant to the question of whether a school’s offering of remote learning services is of a reasonable standard.

The remote learning services offered will also need to be age appropriate. ‘Live lessons’ will be particularly necessary in the case of young children in order to maintain their focus. However, even where ‘live lessons’ are utilised, the child’s ability to concentrate on the lesson and the easy distraction of other pupils without the in-person authority of a teacher may be hard to circumvent, and are in no way comparable to an in-person lesson or classroom. However, this may be the best that can be done in a difficult situation, and teachers do have tools such as the mute button at their disposal which can be deployed during remote teaching in order to minimise the impact of disruptive pupils on others.

Provided there is no valid force majeure clause, a contract will not be frustrated if it can be performed by some other means which are not substantially different to those contemplated at the outset. The implication of this is that in order to ensure that the services they have provided do not amount to a frustration of the contract, schools may have to show that they have attempted to implement services which mirror ‘normal’ teaching as far as possible. ‘Live lessons’ and keeping to a relatively regular timetable will be an obvious way for schools to evidence that they have done so, and the absence of these features may mean it is easier for parents to argue that the contract has been frustrated, if they so wish.

It is important to keep in mind that as a result of the pandemic schools were closed with little to no forewarning and so the circumstances of each school will be taken into account when looking at whether the services they are now offering provide a reasonable alternative. It may also be of note to look at whether the schools have improved the remote learning services being offered since those being offered at the beginning of the lockdown. As this has now unfortunately started to become the norm for most people, everyone will appreciate that it may have taken some time for schools to become accustomed to a fully online way of teaching. Again, this will be something which will be taken into account when looking at whether the contract has been frustrated. If the school can show that the services they are now offering mirror as much as possible those of a normal school day, given the circumstances, then it would be hard to see how they are not conforming to the terms of the contract.

In addition, the specific circumstances of each pupil and their family and the requirements thereof will be relevant.

Unfortunately, there has been little or no guidance available from any independent school bodies including the BSA, IAPS and ISC with regard to remote learning and the ‘standard’ of services required. This reluctance may be due to the arguments which can be made by parents and pupils that the standard of teaching they are currently receiving does not amount to that as stated in the guidance, and so there is a plausible argument that fees should not be paid or should be suspended. Additionally, there has not yet been any clear guidance from the Government in relation to the format to be utilised. Again, this may be a reluctance on their behalf to ensure that both state and independent schools are not held to a standard that not all of them can conform to.

As far as universities are concerned, remote learning may be a more adequate replacement for face-to-face teaching generally. However, the nature of the course will be a highly relevant consideration in determining whether the teaching is of a reasonable standard. Some courses involve mostly independent learning in any event, and can easily be delivered by online teaching. Many journals can be accessed from home via online university library services and lecturers can conduct lectures and seminars remotely and check in with students where necessary. However, some courses – sciences, for example, which often involve lab work – cannot be moved online as easily, and students may be missing out on the opportunity to gain vital skills that they expected to graduate with. These students will have a stronger case to argue that they are not receiving value for money as regards their fees.

Many students have also expressed concerns about the unfairness of having to pay for university accommodation which they are not using in addition to expensive university fees – all while they are deprived of the overall university experience they anticipated having. Although some private landlords and university owned accommodation are allowing students to terminate their rental contracts early, some still remain of the view that they are still in force and that students must continue to pay – even if this means, as in many cases, paying for rooms which are currently vacant. If any students have any worries about paying for these accommodation fees during the pandemic the Government guidance can be found here.

Recent updates

The Competition and Markets Authority (CMA) recently issued a warning stating that private schools should not be colluding with other schools about the level of discount or refunds being offered. The Independent Schools Council (ISC) and other similar bodies were advised that exchanging commercially sensitive information and agreeing prices between themselves would be highly likely to amount to an infringement of competition law which could see them facing fines of up to 10% of their total turnover. If parents have any inkling that schools may be doing this then they should report it immediately, and this may constitute grounds for bringing an action.

The ISC has denied knowledge of the exchange of information between schools, and stated that it continues to remind schools of their responsibilities to comply with legislation and regulations.

The universities minister, Michelle Donelan, has recently outlined the government’s position on payment of university fees. It was stated that efforts were being made to ensure a high quality of remote teaching was on offer, and that students would not be entitled to reimbursement if teaching quality was maintained. These words will be unwelcome to students who may have questioned the value of their fees even prior to the pandemic, and will almost certainly have hardened the resolve of both universities and independent schools to recover as much as possible in fees.

However, Nicola Dandridge of the Office for Students told MPs on the education select committee that universities should make it clear to students in advance of accepting their offers for the next academic year where teaching would be carried out remotely, and should not promise a ‘campus experience’ where this could not be achieved.

Looking forwards – what to expect from tuition after the lockdown

There has recently been a great deal of discussion about when children will return to state schools, and which year groups will return first. As of the 1^st June, reception, year 1 and year 6 pupils have returned to school in smaller class sizes to accommodate for social distancing. The position is slightly more unclear as regards secondary pupils, but broadly speaking the aim is for year 10 and 12 pupils to return to face-to-face education in some form before the summer holidays begin. However, it should be noted that teaching unions have recently expressed strong concerns about pupils returning to schools at this stage and about the ability of schools to enforce social distancing measures. In addition, it is not compulsory for students to return to state schools at this time and there is an overriding concern from parents who have indicated that they will not send their children back to school. This is mainly due to the concerns of contracting Covid-19, with parents stating that it is safer for their children to remain at home whilst the level of teaching and interaction with other pupils and teachers will be practically non-existent. Some schools are trying to ensure that children stay two meters apart at all times, including during breaks, by drawing lines on the floor for pupils to follow and creating buffer zones or boundaries for them to stay in. However, if they do not stay within these ‘zones’ or are unable to keep a distance of two meters from other pupils then they will not be able to have a break, as they are putting themselves and others at risk.

Independent schools are able to decide themselves whether and when it is safe to reopen their doors to pupils. Notably, Eton will not reopen to students until September 2020. In the case of schools which are providing remote learning services that fall below the expected standard, a decision not to reopen prior to the summer holidays while state schools reopen might support an argument that further fee reductions should be made.

Cambridge University recently confirmed that it would be continuing to deliver all lectures remotely until September 2021, although small groups may be able to meet for seminars depending on social distancing measures in place. The University of Manchester similarly advised that lectures would take place only remotely for the next term. It seems inevitable that others will follow suit in the coming weeks. It has been reported that universities will face a hit in excess of £760 million if one in five students defer their places as expected.

Conclusion

It is clear that there has been a reluctance to stipulate any clear guidance for those who teach at schools and universities to follow with regards to the remote learning services offered. This may be so that these institutions are not held to a specific standard or level of teaching, given the varying resources of each institution and the unprecedented nature of the situation. However, there are evidently differing standards of remote learning being offered, which means that some parents and students are being provided with reasonable alternatives while the services offered to others fall far short of what is acceptable in light of the cost.

Ellie Mitten and Sophie Phillips are currently undertaking their pupillage under the supervision of Matthew Smith. If you have any queries or require any specific advice, please contact the civil clerks at clerkscivil@psqb.co.uk or call 0113 245 9763.