OPEN LETTER TO MICHELLE DONELAN, THE UK’S UNIVERSITIES’ MINISTER

 
Dear Minister,

We are writing to seek clarification on the statements which have been attributed to you in relation to students’ tuition fee refunds. You are reported as having said that students who are continuing their courses online will not be “entitled to reimbursement if the quality is there”.

A spokesperson for the Department of Education has said: “The Universities Minister has made it clear that we only expect full tuition fees to be charged if online courses are of good quality, fit for purpose, and help students progress towards their qualification”. The spokesperson said that if universities want to charge full fees, they will have to ensure that the “quality is there”.

In April, Universities UK released a statement that said students should not expect tuition fee refunds, which was a position that was said to be mirrored by the UK Universities Minister.

We write on the assumption that what has been attributed to you is an accurate statement of your position.  In this letter, we propose to deal with the issue of whether the online continuation of courses which are studio-based can be regarded as a good quality substitute and fit for purpose when studio-based courses cannot be continued as a  result of the Covid-19 shutdown. The answer to this question will determine whether tuition fees should be refunded partially or in whole, because our education has been negatively impacted.

By way of introduction, we are an action group known as Pause or Pay, which acts for students who have begun studio-based courses in twelve Art and Design Institutions across the UK: The Royal College of Art, The University of the Arts London (Chelsea College of Art, Central St Martins, London College of Communication, Camberwell Art College, Wimbledon College of Art, London College of Fashion) and Glasgow School of Art (all of the Student Unions of these institutions support our action group). We also act for students undertaking studio-based courses in the Arts University of Bournemouth, the Edinburgh College of Art, Belfast School of Art and Goldsmiths College.

We appreciate that this is a really difficult time for universities. However, these are equally difficult times, if not more so, for students who are doing studio-based courses, whose careers are at stake, and who could be paying off student loans for tuition for decades to come.

In these troubled and uncertain times, we have been abandoned by the very Institutions which we expect to rely on to protect our interests, but which have instead acted to promote their own self-interest at our expense.  We acknowledge that their principal source of cash-flow is from tuition fees, particularly from international students. While the Government has announced a package of measures to ease financial disruption for the university sector, nothing has been done by the UK Government in order to create a hardship fund for students. The strategy which the art and design higher education institutions have adopted in order to ameliorate the financial consequences of the pandemic is to cut short in mid-course the studio-based programmes for all students by substituting online teaching in order to complete the studio-based course. Presumably, the reason is to enable their programmes to be completed in order to accommodate next year’s intake.

To answer the question which we have posed above, studio-based courses are impossible to teach online, since they require studio and workspace with technical support, and one-to-one teaching, culminating in a physical degree show. It is simply not transferable to online platforms. Moreover,  as a result of the precipitate haste with which art and design HEIs have rushed headlong into the imposition of online teaching of studio-based courses, often without notice, and always without proper consultation with students, the concept of transferring online teaching to studio-based courses has not been thought through at all.

In the first place, many students cannot afford to have a computer and relevant software at home, and rely on the computers made available by their particular institution, to be used where necessary for their work. Secondly, many students would find it not only difficult but unfair to be expected to master unfamiliar computer techniques, such as the use of 3-D modelling and animation software, within a short space of time for the annual show, if the show were to amount to anything more than an online catalogue of a series of images. Thirdly, online teaching will require studio and workshop facilities in order to enable students to produce work to be displayed in a virtual degree show.

It is a moot question whether staff can be found with the appropriate expertise in online teaching. In many institutions there have been strikes, such as the UCU strike by staff across the UK in November, February and March of the 19/20 academic year, because of their ongoing complaints of, amongst other things, zero-hours working, casualization of labour, a poor working environment, and discrimination by these institutions towards their staff on the grounds of race, gender, disability and unequal pay levels between male and female members of staff. The message from the staff to students when on strike action was “We want to give you the time, teaching conditions and environment you deserve. Poor working conditions mean poor learning conditions.”

The protected category of disabled students, recognised by the Equality Act 2010, has been completely ignored, although they will face insuperable difficulties if forced to try and cope unsupervised and without specialised equipment adapted to the particular individual’s needs.

Finally, the difference between holding a degree show in its physical form, and a virtual show, is the difference between chalk and cheese. A physical show is normally an express term and a fundamental condition of the contract between the student and the institution for the delivery of studio-based undergraduate, postgraduate and research programmes (see for example the RCA’s MA Sculpture Programme Handbook at 7.2 under the heading “Exhibiting your work” for Sculpture students). The show provides a showcase for the exhibition of a physical piece of work, normally for a week, during which the student has an unrivalled opportunity to meet experts, curators and collectors from all over the world, with extensive Press coverage. These shows have been the springboard from which the careers of many illustrious artists and designers have been launched.

A virtual show, by comparison, cannot adequately emulate a viewer’s physical experience of the piece of work shown. It would have little more impact on a globally accessible platform than an Instagram post.

Our action group has been advised by Nicholas Padfield QC on the relevant legal principles to be applied. First, it is beyond doubt that the Consumer Rights Act 2015 applies to the relationship between the student as the  “consumer” and the institution as the “trader”, although for present purposes it is unnecessary to rely on its provisions, when the solution can be found in the application of basic contract principles.

The position can be quite simply put. Students who have enrolled on a studio-based course have paid tuition fees for the delivery of an agreed programme which is studio-based. The programme has not been delivered because of an event beyond the institution’s control, so that the student has not obtained the benefit that they have paid for because of the inability of the institution to deliver the programme as agreed, but only part of it. Since the institution has not delivered what it has promised, it cannot be entitled to the full amount it was paid. The alternative of an online programme to complete the studio-based course cannot be imposed on students without their agreement, since it amounts to a different performance to that originally promised.

It follows that students who do not wish to accept online teaching are entitled to a refund of what they have paid for, but not received. For those students who are prepared to accept online teaching, for whatever reason, in order to meet their particular needs, and to obtain a degree with a virtual degree show, they would also be entitled to a refund because they have only received part of what they have paid for, and accepted what they did not agree to originally by way of mitigating the position in which they find themselves.

We regard it to be fair for studio-based higher education students, who have accepted online teaching, to have a reduction of 30% of the full tuition fee payable, because virtual teaching will inevitably have a negative impact on their education and is not what was promised. If full fees have already been paid, the particular institution concerned should refund the student the relevant amount they have already paid. Insofar as the student has taken out a student loan, we would ask the Government to reimburse them the amount of the loan which is attributable to the fees which they have overpaid as a result of the inability of the institution to deliver the full programme which they agreed.

Furthermore, as many art and design students are international, we believe that our HEIs should fight for the 2-year post-study visa extensions to be brought forward for 2020 graduates so as to make it possible for them to participate fully in the preparation for a physical degree show.

In these circumstances, for the reasons which we have set out above, online courses are not of good quality, not fit for the purpose and do not help students of studio-based courses progress towards their qualification. Applying the test which you yourself have set for the basis of a refund for tuition fees, we consider that we have undoubtedly met that test. We hope that you will lend us support in coming to terms with this serious disruption of our studies and our careers.

Yours sincerely,

Pause or Pay UK

www.pauseorpayuk.org