A refund request following the cancelation of an initial course, and offer of a lower level course

Friday, September 27, 2019

Issue

1. The Student enrolled in [redacted] course with the Provider. An Offer of Place was issued by the Provider on 11 October 2018.
2. The course length was 16 weeks.
3. The course start date was 19 November 2018. The course end date was 22 March 2019. The course dates included a two-week holiday period over Christmas and New Year.
4. The course was full-time, with 20 hours of tuition provided per week, 9am to 1pm from Monday to Friday.
5. The Student was informed by the Provider on 19 November 2018 (Day 1 of the course) that the [redacted] course was not available due to insufficient student numbers. The Student asked the Provider for a full tuition fee refund. The Provider offered a 75% tuition fee refund, which the Student declined.
6. The Student changed to a diferent course [redacted] on 26 November 2018 and continued studying in this course for 12 weeks.
7. On 4 March 2019 the Provider informed the Student that the second course was no longer available due to insufficient student numbers. The Provider offered the Student a place in a lower level course.
8. On the basis that the lower level course was not appropriate for the Student’s learning needs, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme on 4 March 2019.
9. The Student’s position is that a full refund should have been given by the Provider on Day 1 of the course, as the original course was not available. Furthermore, the Student is entitled to a refund of the 3 weeks of tuition from 4 March 2019 to 22 March 2019. The Student’s view is that a refund is due in this case, as the Provider was unable to provide an appropriate course during the 3-week period detailed above.
10. The Provider’s position is that the Student is not due a refund as the Student was offered (and declined) a 75% refund on Day 1 of the course, in accordance with the Provider’s refund policies. Furthermore, the Provider offered the Student an appropriate course from 4 March 2019 to 22 March 2019. The Provider believes that their staff did their best to satisfy the Student’s academic needs.
11. The Provider and the Student met in mediation on 23 May 2019 but were unable to resolve their dispute.


Background

12. The following sequence of events is a summary of the Student and Provider’s submissions to the International Student Complaints Dispute Scheme.
13. The Student enrolled in a 16-week [redacted] course with the Provider. An Offer of Place was issued by the Provider on 11 October 2018.
14. The Offer of Place states:
Refund, Attendance and other related policies as set out in the School Handbook.
15. A Fees Invoice was also issued by the Provider on 11 October 2018.
16. The total course fees paid were $5320. This comprised of a $200 application fee, plus tuition fees of $5120. The weekly tuition fee for the [redacted] course was $320.
17. On 14 December 2018 the Student completed the Provider’s Teaching Quality Survey.
18. Via the Teaching Quality Survey, the Student indicated satisfaction with all academic aspects of the course, including the teacher’s performance, class preparation, and the level of support provided by the teacher.
19. On 15 January 2019 a ‘course settle agreement’ was signed by the Student and the Provider’s Accounts Officer.
20. The course settle agreement states that the Student (sic):

enrolled to (the Provider)16 weeks [redacted] course since 19/01/2018, while he enrolled in (the Provider), the school do not have [redacted] course. We supplied the (alternative course) course for (NAME). (NAME) has studied at that course for one week. According to (NAME) will (NAME) went to one by one course. After one week (NAME) required to return to (alternative) course until his course finishes date 8/03/2019.

21. The course settlement agreement details a partial refund of tuition fees from the Provider to the Student.
22. The partial refund totals $1527.50, and represents the difference in weekly course fees between the initial course ($320 per week) and the subsequent course ($220 per week).
23. The course settlement agreement goes on to state:

(NAME) and the school have made this agreement. At the period (NAME) study at (the Provider), (NAME) does not have the right to change course again, if (NAME) wants to claim any reason, please follow the student complaints procedure.

24. On 26 February 2019 the Student submitted an Individual Application for Leave form to the Provider.
25. The Student asked for leave for a 3-day period, from 27 February 2019 to 1 March 2019.
26. The leave request form was signed and approved by an Academic Tutor on 26 February 2019, then subsequently declined by an unnamed staff member on behalf of the Provider. The unnamed staff member wrote the following on the form:

to be cancelled

27. On 4 March 2019 a first, written attendance warning letter was issued to the Student by the Provider.
28. The attendance warning letter is signed by the Provider’s  Accounts Officer, and states:

It has been noticed that you are late for classes, this is less than satisfactory. Therefore this is a friendly reminder of our expectations while you are a student at (the Provider).

29. The attendance letter goes on to outline the Provider’s expectation that students attend 100% of their timetabled classes. It also gives the Provider’s office telephone number for students to use if they are unable to attend class on time.
30. The attendance warning letter concludes:

A record will be kept of the fact that you have received this note and we look forward to a much improved attendance from now on. The next step if there is no improvement will be an interview with the School Manager.

31. On 4 March 2019 the Student submitted an online complaint from to iStudent Complaints.
32. The Student’s complaint is summarised below:

i. The Student was informed by the Provider on 19 November 2018 that the (initial) course was not available due to insufficient student numbers.

ii. The Student asked the Provider for a refund on 19 November 2018, and was told that 25% of the tuition fees would be retained by the Provider if the Student withdrew from the course at that time.

iii. For one week the Student received 2 hours per day of one-to-one tuition, plus 3 hours per day of self-study. This arrangement led to the Student paying a higher weekly tuition fee for the first week of the course.

iv. The Student was unhappy with this arrangement, as the tutor was not well prepared.

v. The Student was told by the Provider that the initial course would remain unavailable until more students enrolled for the course. Therefore the Student decided to change to the alternative course.

vi. The Student was told by the Provider on 4 March 2019 that the alternative class was being closed due to insufficient student numbers.

vii. The Student was instructed by the Provider to join a lower level [redacted] class. The Provider again refused to refund the Student’s unused tuition fees and warned the Student that if the Student did not attend classes the Provider would contact Immigration New Zealand to cancel the Student’s visa.

viii. As part of the online complaint, the Student indicated that no complaint had been made to NZQA in relation to this matter.

33. On 5 March 2019 the Student completed the Provider’s own Student Complaints Form.
34. The details of the Student’s complaint were as follows:

Due to your own reasons, you closed the (initial) course you arranged for me to attend the (alternative) and refused to give me a refund, I can not accept your arrangement. I apply to refund the cost of my remaining three weeks of (initial) courses.

35. The Student Complaints Form gives no indication as to whether the complaint was received by the Provider, nor if any action was taken by the Provider in relation to the complaint.
36. The Provider submitted an Appeals and Complaints Flow Chart. This document outlines the process students should follow if they have a complaint regarding the Provider, and details the responses students can expect from the Provider.


Student’s position

37. From the Student’s submission dated 4 March 2019, the Student is of the opinion that the provider has acted unfairly for these reasons:

i. The Student believes that the Provider dishonestly claimed to run an (initial) course. The Student believes that the Provider was aware that the (initial) course was unavailable at the time the course fees were paid by the student, prior to the course start date.

ii. The Student believes that the 75% tuition fee refund offered by the Provider on 19 November 2018 was unreasonable, as the Student’s request to withdraw was based on the Provider’s inability to provide the (initial) course.

iii. The Student had no choice but to join the (subsequent) course from 11 March. The Student accepts that this course provided a suitable opportunity to learn (subject) with other students, and that the teaching quality was good.

iv. The Student states that the lower level (subsequent) course offered by the Provider on 4 March 2019 was inappropriate and unacceptable. The Student feels that this course did not provide any preparation for the [redacted] test. The other students were elderly people whose English was of a much lower level that the Student.

v. The Student’s application for 3 days’ leave was initially approved by his tutor on 26 February 2019. The Provider’s Accounts Officer subsequently informed the Student on 4 March 2019 that the leave request had been denied. As a result the Student was issued an attendance warning letter by the Provider on 4 March 2019.

vi. The Student submitted a formal, written complaint to the Provider on 5 March 2019. This complaint was not acknowledged or responded to by the Provider.


Provider’s position

38. The Provider’s position as outlined in their response to the iStudent complaint dated 4 March 2019 advises as follows:

i.          The offer of a 75% tuition refund made by the Provider on 19 November 2019 was in accordance with the Provider’s enrolment conditions.

ii.         The Student completed a Teaching Quality Survey on 14 December 2018 and indicated satisfaction with all aspects of the teaching provided.

iii.        The Provider refunded tuition fees to the Student on 15 January 2019. This refund covered the difference in weekly course fees between the (initial) and (subsequent) course.

iv.        The Provider states that the Student’s complaint of 5 March 2019 was dealt with in accordance with the Provider’s Appeals and complaints process.


Discussion

39. There are two questions which the International Student Contract Dispute Resolution Scheme must determine:

i.          Should the Student have been given a full refund by the Provider on Day 1 of the course, on the basis that the (initial) course was not offered by the Provider?

ii.         Should the Student be refunded 3 weeks’ tuition fees, on the basis that the lower level (subsequent) course offered by the Provider on 4 March 2019 was not appropriate for the Student?

40. The other complaints detailed in the Student’s submissions are not issues which need to be determined by the International Student Contract Dispute Resolution Scheme. In summary:

a) The refund provison detailed in the  course settlement agreement signed by the Student and The Provider on 15 January 2019 is not disputed by either party.
b) The Student’s leave request, submitted on 26 February 2019, which was approved (and subsequently declined) by the Provider, the attendance warning letter issued on 4 March 2019 by the Provider and the unaddressed internal complaint form submitted by the Student on 5 March 2019, whilst not demonstrating good practice on behalf of the Provider, are not financial or contractual issues within the scope of the International Student Contract Dispute Resolution Scheme.

41. Section 9 of the International Student Contract Dispute Resolution Scheme Rules 2016 states that an adjudicator is required to act in accordance with “what is fair and reasonable in all the circumstances, have regard to the law, the relevant good practice, the code, and other Government policies.” Further, “The adjudicator is not bound by either the rules of evidence or previous decisions and is required to determine the dispute according to the substantial merits and justice of the case, and in doing so is not bound to give effect to strict legal obligations or to legal forms or technicalities.”

42. To determine the above, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds.

43. With regards to question (i) in Section 39 above, the Student’s submission states that the Student requested a refund from the Provider on Day 1 of the course. The Student’s request was made because the Provider had informed the Student that the (initial) course was not available due to insufficient numbers.

44. In response to this request, the Provider informed the Student that a 75% tuition fee refund could be obtained by the Student, in accordance with the Provider’s refund policies.

45. The NZQA Code of Practice for the Pastoral Care of International Students (2016), Section 30, Clause 2 states:

A refund policy must include refund conditions for the following situations:

a. failure by the student to obtain a study visa;
b. voluntary withdrawal by a student;
c. the signatory ceasing to provide a course of educational instruction as contracted with a student, whether it stops of its own accord or as required by an education quality assurance agency;
d. the signatory ceasing to be a signatory;
e. the signatory ceasing to be a provider.

46. In the writer’s opinion, subclause (2)(c) applies in this case. The Provider had been contracted to provide (the initial) course. At the time of the Student’s arrival on 19 November 2019 the Provider had ceased to provide this course.

47. Subclause (2)(b) does not apply in this case as the Student did not request to withdraw from the course of educational instruction the Provider had been contracted to provide.

48. The NZQA Code of Practice for the Pastoral Care of International Students (2016) goes on to state in Section 30, Clause 3:

In the situation in subclause (2)(c) or (d), the signatory must deal with fees paid for services not delivered or the unused potion of fees paid as follows:

a. refund the amount in question to the student (or the student’s parent or legal guardian); or
b. if directed by the student or the code administrator or the agency responsible for fees protection mechanisms, transfer the amount to another signatory as agreed with the student (or the student’s parent or legal guardian).

49. The writer has considered this and is of the opinion that the offer of a 75% tuition fee refund made by the Provider on 19 November 2019 is not consistent with the statutory requirements for refunds as set out in the NZQA Code of Practice for the Pastoral Care of International Students (2016). A full tuition fee refund should have been provided to the Student, as the Provider did not offer the course of educational instruction contracted.

50. The Provider has not submitted its refund policies in relation to this dispute.

51. In regard to question (ii) in Section 39 above, the Student’s submission states that the lower level (subsequent) course offered by the Provider on 4 March 2019 was inappropriate and unacceptable, as the level of the course was too low for the Student.

52. On this basis, the Student believes the 3 weeks of tuition fees from 4 March 2019 to 22 March 2019 should be refunded.

53. The Education (Refund Requirements for International Students) Notice 2012, Section 4 states:

1) For the purposes of section 235A of the Act, the period within which an international student may withdraw from a programme or training scheme of 3 months’ duration or more (the refund period) is 10 working days.
2) The refund period starts on the first day on which the private training establishment requires the student to attend the establishment to receive tuition as part of the programme or training scheme.

54. It is the writer’s opinion that for a refund to be considered on this basis, the Student’s refund request needed to have been within 10 working days of the (subsequent) course start date (26 November 2019).

55. This is not the position in this matter and as such the Student is not entitled to a tuition fee refund on this basis.

56. With regards to the course level, no submission has been provided by the Student detailing the level of the course in relation to the student’s ability.

57. The Student’s submissions do not show that the lower level course offered on 4 March 2019 was a different course of educational instruction to that provided from 26 November 2018 to 1 March 2019.

58. Based on the Student and Provider’s submissions, it is the writer’s opinion that the Provider’s refusal to refund the Student on 4 March 2019 was consistent with the statutory requirements for refunds as set out in the Education (Refund Requirements for International Students) Notice 2012. As such the Student is not entitled to a tuition fee refund for the period from 4 March 2019 to 21 March 2019.


Proposed Decision

59. The proposed decision of the International Student Contract Dispute Resolution Scheme is that the Student’s complaint be upheld and an award of $500 is granted.

60. Both parties now have a final opportunity to provide further submissions before a final decision from iStudent is issued.
 

Final Decision

61. The proposed decision as set out above has been provided to both the Student and the Provider.

62. The Student provided additional submissions on 7 July. These submissions were as follows:

            i.          A Result Notification issued by (alternative provider) on 11 November 2018, relating to (educational credits) earned by the Student.

            ii.         A photograph showing the front cover of the textbook used by the Student while studying the (initial) level course at the Provider.

            iii.        A photograph showing the front cover of the textbook used by the Student while studying the lower level course at the Provider.

            iv.        A video clip recorded by the student during the lower level course.

            v.         An audio clip recorded by the student during the lower level course.

            vi.        A second audio clip recorded by the student during the lower level course.

63. The Result Notification referred to in above shows that the Student achieved [redacted].

64. The first photograph submitted by the Student shows that the textbook used by the Student during the (initial) course is a (course description) course book. According to a symbol on the book’s cover, the learning material is at Level [redacted].

65. The second photograph submitted by the Student shows that the textbook used by the Student during the lower level course is (course description) course book. According to a symbol on the book’s cover, the learning material is at Level [redacted].

66. The video clip and two audio clips submitted by the Student all feature an [redacted] teacher working with a group of students.

67. Based on the Student’s submissions of 7 July, the lower level course offered by the Provider from 4 March 2019 was not an appropriate level course for the Student. The course materials and teaching content were not suitable for the Student.

68. However, the Student’s submissions of 7 July do not show that the lower level course offered on 4 March 2019 was a different course of educational instruction to that provided from 26 November 2018 to 1 March 2019.

69. Therefore, the writer’s opinion remains that the Provider’s refusal to refund the Student on 4 March 2019 was consistent with the statutory requirements for refunds as set out in the Education (Refund Requirements for International Students) Notice 2012. As such the Student is not entitled to a tuition fee refund for the period from 4 March 2019 to 21 March 2019.

70. The final decision of the International Student Contract Dispute Resolution Scheme is that the Student’s claim is upheld and an award of $500 is granted.

 

Adjudicator
Nick Arnott
24 July 2019