Universities fear legal reprisals for asking students to defer

Oversubscribed institutions seek legal advice over asking for deferrals if their courses are full

September 1, 2020

English universities?that find themselves oversubscribed after the A-level results fiasco are seeking legal guidance about whether they can ask students who have fulfilled the terms of their offer to defer their place.

Times Higher Education?understands that a number of institutions are consulting with legal teams, after the UK government’s last-minute decision to allow students to use their centre-assessed grades resulted in an increase in students achieving the marks needed for their first choice of university.?

Many institutions had already filled all their places in the days between the initial results announcement and the U-turn. While some expanded their intake to accommodate the extra students, many do not have the capacity to do the same?because of limits imposed by social distancing and accommodation, and have had to ask the newly graded students to defer until 2021. ?

THE?understands that the situation has become a particular concern for some highly selective universities?that usually offer significantly more places than they have available, safe in the knowledge that a portion won’t get the grades required.

It has also proved an issue for subjects where grades were mostly likely to have been boosted, such as economics, biosciences, law, political sciences and psychology.

Trish D’Souza, education team leader at law firm Capital Law, said that if students previously accepted an offer to their first-choice university and now have the grades “then a contract is likely in place”.

“Universities will need to be certain that asking students to defer to another year is catered for within?their own rules and procedures that were drawn to the students’ attention around the time that the offer was accepted. Otherwise they could be acting in breach of contract or breach of the Consumer Act 2015 by trying to impose alternative terms on the students unilaterally,” she explained.

Universities such as Bath, Sheffield, and Oxford have said that they will admit all applicants who now meet their original offer but, where courses have reached their maximum intake, some will be asked to defer until 2021.

The University of Cambridge said that “given the capacity issues caused by this unprecedented situation, some offer holders who meet their offers after 17 August [the date of the U-turn] will have to defer for a year”.

The problem is that?predictions of swathes of students wanting to defer?because of the pandemic’s impact on the university experience have not materialised, as applicants shy away from an uncertain job market and limited travel opportunities. ?

Durham University has attempted to get round the issue by sweetening the deal by offering a bursary, in the form of a discount against university accommodation charges for one year, to those who opt for deferred entry.

David Green, vice-chancellor of the University of Worcester, said?that the contract was rightly “imbalanced” towards the best interests of the student.

“Of course a university can make an offer of a deferred place, but if the student who has met the conditions of their offer says ‘no, I want to start this year’, my understanding of the law is that the university must honour their offer of a place this year,” he said.

Universities UK said: “As autonomous institutions, ultimately the decisions about how flexible an institution or particular course can be will be made by the university involved, based on the needs of their students, practicalities such as specialist facilities or availability of placements, and most importantly the safety of students, staff and communities. It may be that in some cases students who made the terms of a conditional offer following the government’s policy change may be offered a deferred place to start in autumn 2021.”


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Reader's comments (2)

If the real reason for obliging students to defer (an equity issue as much as a contractual one) is capacity for social distancing, then there is a simple way to mitigate the injustice, at least for non-lab/practical courses: give in to the high likelihood that universities will not be able to consistently and continuously maintain the few hours of F2F they are promising in the teeth of spikes in infections and put all teaching on-line at least for the first semester (pending the roll-out of a vaccine). The argument for equity, especially for the students from disadvantaged backgrounds most unfairly treated by the algo-scandal, is sufficient justification and it must be within the wit and power of government and UUK to make the case for full fees to fund the extra costs involved in providing a good-quality on-line experience.
We live in even stranger times that I thought if universities are more worried about contractual comeback from asking students to defer than the legal liability which could arise if negligently overfilling campuses and trying to enforce face-to-face teaching when it is unwise to do so leads to avoidable staff or student deaths. Vice chancellors, pro Vice Chancellors and other senior decision makers might want to ask their legal advisors about the law relating to gross negligence manslaughter. Given the repeated warnings from staff within universities, the UCU and others about the dangers there can be little chance to hide behind a cloak of ignorance when faced with the prospect of conviction and imprisonment.

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