Update: education

From a student's perspective higher education law has changed significantly over the past few years. As tuition fees at universities have increased, students are seeing themselves equally as consumers and as students. They are expecting the services provided by universities, including tuition and facilities, to be of a significant standard. If those standards are not met, students are prepared to take whatever action is necessary, including legal action, to preserve their education.

In 2005 the Higher Education Act implemented the Office of the Independent Adjudicator for Higher Education (OIA). The adjudicator's primary aim is to adjudicate on complaints brought by students against their respective institutions. The complaints brought by students are varied and span the entire spectrum of issues that arise for them during their educational experience. These issues may relate to the provision of tuition; academic failure; procedural irregularity; discrimination; maladministration; and challenges to degree classifications.

Extenuating circumstances

Before submitting a complaint to the OIA, the student must exhaust the internal procedures of the university. Universities will have procedures governing the way in which examination boards make their decisions about the academic progress of students.

One of the key areas in which students tend to find themselves in difficulty is where they fail to inform the university of any extenuating circumstances that may have affected their performance.

In a bid to protect academic standards, universities have strict rules governing how a student might be allowed to retake an examination, or indeed have a mark for a particular assignment changed in the event that they are ill at the time of submission of the assignment or sitting an examination.

Some universities will have special extenuating circumstances panels that will consider whether or not it is likely that the illness or tragedy has affected the student's performance. Generally speaking, if the student does not submit mitigating circumstances at the time of the relevant assignment/examination or immediately thereafter (usually within seven days) then the university can refuse to consider those circumstances and how it may have impacted on performance. This can sometimes result in harsh decisions against students. For example, a student at the end of a five or six-year medical degree may find that they fail at the last hurdle because of ill health on the day of the final examination. If this is not communicated to the university with adequate independent supporting evidence, the university may terminate the student's studies. This usually results in an appeal.

Disability discrimination

In the last few years, it is also becoming evident that universities are failing to adequately support those who have a disability. Obvious physical disabilities are sometimes easier to deal with when making reasonable adjustments; however, students who suffer from dyslexia, dyspraxia, ADHD or depression are sometimes let down by the system.

The general approach is that if a student declares him or herself to be disabled, the university is charged with an anticipatory duty under the Equality Act 2010. This means that it must be proactive in ensuring that reasonable adjustments are put into place to ensure the student is not disadvantaged in any way.

Students are often referred to the disability support services at the university where a formal report is drawn about the disabilities of the student and any reasonable adjustments that might need to be put in place. The problem occurs when this report and its findings are not communicated to tutors and lecturers in the student's department. So, for example, a student may need Powerpoint slides in advance of a lecture, or may need to record a lecture on a Dictaphone, but the lecturer refuses to allow the student either of these benefits. The student does not realise the impact of the lecturer's failure and carries on through the course. The student then finds that they fail the particular module either through coursework or an examination. On taking legal advice it becomes clear that the student has been failed by the system as the university has not fulfilled its duty to the student in making reasonable adjustments.

It is clear, however, that universities are quick to address these failings once they are brought to their attention. More often than not, an appeal through the internal procedures alleging a breach of the Equality Act 2010 will result in a favourable outcome for the student.

Fitness to practise

Another fast growth area is that of fitness to practise proceedings in medical degrees particularly. The General Medical Council has charged universities with the responsibility to ensure that every student graduating with a medical degree is fit to practise medicine.

If, during the degree, the student demonstrates a failure to abide by the ethical code; or is too ill to perform to the required level; or indeed is involved in deception, fraud, theft etc. the university has the power to arrange a fitness to practise hearing. These are formal proceedings where an independent panel will consider the evidence and impose a sanction. Sanctions can range from supervision orders, conditions on registration with the GMC or expulsion from the course with a decree that the student may never practise medicine without the panel reconsidering an application at a later date.

Fitness to practise is taken very seriously by universities and students can sometimes find their fitness to practise being challenged for failure to attend lectures and seminars.

Academic misconduct

Academic misconduct issues have also increased over the last few years. With the advent of the internet, access to information is much more easily accessible. Students will sometimes find themselves the subject of an allegation of plagiarism.

Most universities now have a computer software programme known as TurnItIn. TurnItIn has the ability to search millions of websites in a matter of minutes and match any identical sentences found on websites with a student's assignment. When a student submits his or her assignment for marking, the assignment is submitted through the software and a report is produced. Inevitably the report will identify some plagiarism as there are certain words, phrases or names that cannot be said in any other way, for example 'National Health Service' or mathematical formulas.

The report will also identify what percentage of the assignment is plagiarised. Most universities will set a threshold percentage and will only take steps to investigate a student if the percentage is above the threshold. The mistake some universities make is failing to analyse the report before making the accusation of plagiarism. A report that may demonstrate 40 per cent plagiarism may not be a good indicator that the assignment contains plagiarised material. This is because there are certain subjects that do require a reproduction of tables or graphs to explain a particular point. As these tables or graphs are widely used in the subject area, they are reproduced in the assignment. The student then receives a letter accusing them of plagiarism. This falls squarely within the academic misconduct procedures and the student then, usually, must appear before a panel to explain the plagiarism in the assignment.

Public law and contractual rights

Imported into the legal relationship between the student and the university are principles of public law. At any hearing before a formally constituted panel at the university, the student has the right to be treated fairly; must be clear about the allegation against them; must see all the evidence that the university is relying on in making the allegation; and must have an adequate opportunity to defend themselves.

Increasingly challenges are brought against findings of academic misconduct panels because the university does not provide the evidence it is relying on but seeks to ambush the student with evidence at the investigation meeting stage, or indeed at the hearing itself. There have been many examples in recent years of students appearing before these panels without having ever seen the TurnItIn report or indeed understanding the nature of the allegations being made against them. It is also common to hear that the accuser is often in the room with the panel before the student attends.

Side by side with the public law rights are the contractual rights that students have. Cases such as Clarke v Lincolnshire & Humberside established that the relationship between the student and the university is a hybrid one where both contract law and public law are live.

The rules, regulations, procedures, handbooks, etc. of the university all form part of the contractual relationship between the student and the university. Therefore, any failure of the university to comply with its procedures can also amount to a breach of contract. Breach of contract cases do not tend to reach the courts; universities tend to settle cases rather than see them all the way to trial as they are powerfully protective of their reputations. There are also commercial views taken on litigation due to the potential for significant legal costs being incurred. If a student has a legitimate case against the university, it is rare for the university to insist on defending the allegation to trial.

With fees increasing some threefold for the academic year 2012/13 and onwards, students are becoming much more aware of their rights and are quite prepared to take legal advice to protect their academic learning environment. It will be interesting to see how this area of the law develops over the coming years but it is clear that gone are the days where a student would be reluctant to challenge an eminent professor if there is a breach of legal rights.