Milly White unfurled her graduation gown on stage at a Liverpool university ceremony last week to reveal an “I want a refund” sign, epitomising how tens of thousands of young people feel about their UK higher education experience.
Yet the criminology graduate, who said much of her three-year degree consisted of pre-recorded videos despite paying annual tuition fees of £9,250, is not just protesting. Alongside about 120,000 other recent graduates and current students across the country whose education has been disrupted by the Covid-19 pandemic and lecturer strikes, the 22-year-old has signed up to sue her university.
The legal action has significant backing: a US litigation funding firm, TRPG Capital, has invested £13mn to finance a wave of “group litigation orders”, akin to American class action lawsuits.
The first case, against University College London, has been brought in the High Court on behalf of about 1,000 students who are demanding compensation for cancelled lectures, substandard digital tuition and restricted access to libraries, laboratories and other facilities.
Thirty five per cent of any payout would go to pay legal fees and the litigation funders under a “no win, no fee” arrangement.
More litigation is threatened. Lawyers acting for the students have sent “letters before claim” to 17 other institutions so far, including Bristol, Nottingham and Warwick, as well as Liverpool.
Students in the closely watched UCL test case claimed a partial early win last week. UCL had called for the students to follow its complaints procedure, or an arbitration process for settling higher education grievances, before pursuing litigation.
But the judge, Barbara Fontaine, senior master of the King’s Bench Division, said the students need not do so. Instead she encouraged both parties “in the strongest possible terms” to reach a settlement and ordered an eight-month pause in proceedings.
Professor Kathleen Armour, vice-provost at UCL, said the university was pleased with the decision, adding: “We remain confident that our complaints process is the best route for our students.”
If successful, the claims could result in a combined payout for the UK higher education sector running into hundreds of millions of pounds. But several solicitors and barristers cautioned that the students could face an uphill battle to win.
Ane Vernon, head of education at law firm Payne Hicks Beach, said such cases were not easy to bring. “Understandably students are aggrieved by their university years being affected by Covid and industrial action, but the challenge will be to prove liability for loss,” she said.
The crux of the students’ case is that the universities are in breach of contract because the service they received was inferior to that which they paid for — equivalent to a holiday company that provides a lesser experience than advertised.
Shimon Goldwater, partner at law firm Asserson, acting for the students, said they were entitled to a refund for this “difference in value”. The universities “weren’t able to provide the services [in full] and, therefore, they need to give a price reduction”, he said.
The students point out that many private schools that moved teaching online during the pandemic offered fee discounts, in contrast to the universities.
In the UCL case, they maintain the university enjoyed “bumper” financial years during the pandemic, increasing its tuition fee income 41 per cent between 2018 and 2021 and more than doubling its surplus from £53.5mn in 2019-20 to £128.3mn in 2020-21.
In its defence filed with the court, UCL noted its contracts with the students specified the university would not be liable for losses arising from both “industrial action” and “government restrictions and concern with regard to the transmission of serious illness”.
The claimants counter that just because such provisions were in the contract does not make them valid. The terms, according to them, “create a clear imbalance” in rights between the student and UCL and so are “unfair and unenforceable”.
Even if the students are able to establish a breach of contract, legal experts warned they could struggle to quantify the size of any loss.
Lawyers acting for the students argued that online courses are typically cheaper to deliver than their in-person equivalents, citing as an example lower fees at the Open University, a distance learning specialist.
They used the fee gap between the digital and campus-based courses to help calculate an average compensation claim of £5,000 for domestic students, whose degrees were delivered mostly online during the pandemic.
UCL denied that the Open University was an appropriate comparison and said its fees for online and in-person degrees were the same.
Charlotte Hadfield, head of education at 3PB barristers, said the difficulties for the students were “not necessarily insurmountable”. But she added that “calculating the loss to a student in a higher education claim can be very difficult”.
Some lawyers warned that arriving at a “market value” of the government-capped tuition fee for undergraduates from England, Wales and Northern Ireland was itself open to question, nevermind quantifying losses from the disruption.
“To think of it as a price in the way you would a car or a holiday is quite difficult,” said Smita Jamdar, head of education at law firm Shakespeare Martineau.
Adding to the complexity is the structure of the tuition fee system, whereby student loans are repaid only above particular earnings thresholds after graduation. Students argue the compensation should go directly to the individual affected, not to the Student Loans Company.
But Jamdar said: “Some students will never pay anything back because they never earn enough to trigger it.”
Whatever the merits of the opposing legal arguments, the universities may have broader considerations. The sight of dismayed students taking to the courts is damaging for a sector that has already been hurt not just by the pandemic, but also years of industrial action.
Goldwater said universities “should be concerned” about reputational risks arising from the litigation. “I hope that will be something they take into account” in settlement talks.
Universities UK, which represents the sector, said in a statement that it was “proud” of how universities dealt with “unprecedented” recent challenges.
The University of Liverpool said it appreciated that the past few years had been “difficult” for some students. It had provided a “high-quality academic experience” during the pandemic, while also ensuring health and safety compliance.
The university noted the recent industrial action had been nationwide, adding: “We have prioritised reducing any direct impact on our students.”
White, the Liverpool graduate, said: “It will be great if it [the lawsuit] is successful. But, really, I just want to feel like I haven’t left any stone unturned.”
Tuition fees are “crippling as it is” but “when it’s not even worth it — when you’re given such a poor service — it just makes it so much worse”.
Noting she would see student loan repayments docked from her pay for years hence, White added: “It’s really important that the universities are held to account.”