Decision as to whether a refund should be issued to student who withdrew from studies due to pregnancy.

Wednesday, July 4, 2018

Issue

  1. The Student enrolled in the Diploma Level 6 course in April 2014.
  2. The course was offered over a two-year period.
  3. The Student discovered that she was pregnant in May 2015 and withdrew from the course at the end of May 2015.
  4. The Student further submits that the Provider informed her that she could return to the school to continue with her studies in the future.
  5. A letter from the Provider to the Student dated 8 June 2015 confirmed the Student’s withdrawal and that Immigration New Zealand will be notified of the termination.
  6. In November 2017, the Student visited the Provider and enquired about a refund for the balance of the fees she had paid for the 2015 study year.
  7. The Students states that the Provider informed her that no refund was owing due to two years having elapsed since her withdrawal. However, the Student submits that she was never informed that a request for a refund would need to be made within a specific time period of the withdrawal.
  8. On this basis, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme on 30 November 2017.
  9. The Student’s position is that she is entitled to a refund on the basis that she withdrew before the end of the course due to health reasons. Further, that she was not aware of any refund period at the time of her enrolment and that the school did not make her aware of the refund period at any time during her studies or that she was not entitled to a refund at the time of her withdrawal.
  10. The Provider’s position is that the Student is not entitled to a refund as she withdrew after the refund period had ended, that she was made aware of the refund policy and further, that there are no grounds for a discretionary compassionate refund.
  11. The Student and the Provider met in mediation in May 2018 in an attempt to reach agreement on the above issue.The Provider and the Student were unable to reach agreement and the matter has now been referred to adjudication.

Background

  1. The following sequence of events in this matter is a summary of the Student and Provider’s submissions to the International Student Contract Dispute Scheme.
  2. The Student’s submission in an email to iStudent dated 10 April 2018 is that she paid for the course in [1] above in two instalments.
  3. The Provider’s response to the Student’s complaint to iStudent dated 26 January 2018 states that the student was enrolled for the second year of the diploma referred to in [1] above and that her original start date was 10 February 2015. This was deferred to 20 April 2015 on the basis that the Student had personal circumstances which she needed to attend to.
  4. The Student’s submission is that she discovered she was pregnant in May 2015.
  5. She advises that she was quite unwell in the early weeks of her pregnancy and notified via email to (name), an employee of the Provider on 11 May 2015.
  6. The Student received the following response:

you can write a letter and state that you want to withdraw from studies and why e.g. due to family or personal reasons/ change in circumstances….

  1. The Student then consulted a doctor on 27 May 2015 with a suspected miscarriage.
  2. The doctor’s report confirmed the Student’s pregnancy and recommended rest, fluids and some pain relief and for the Student to follow up with her normal GP. (Dr Name) does not appear to have issued a medical certificate to the effect that the Student was unable to continue with her studies.
  3. The Student advised the Provider on 27 May 2015.
  4. The Student then met with the Provider and officially withdrew from the course on 28 May 2015.
  5. The Provider’s submissions dated 26 January 2018 confirm that the Student did withdraw from the course, but that this was due to her having received two warning letters regarding her attendance and that the “Head of School met with her and finally decided to withdraw her due to her failing the requirements as an international student.”
  6. While I have not been provided with a copy of the withdrawal form, the Student has confirmed that she did sign the form when she met with the Provider.
  7. The Student next contacted the Provider on 13 November 2017 when she visited the school. The Student’s reason for doing so was that as her child was now attending day care, she “wanted to plan my own future so that I can work and have my own career when the time is right.”
  8. The Student enquired about a refund, but was told that this was not possible.
  9. When the student enquired as to why a refund was not possible, she was told that too much time had passed since her withdrawal.
  10. In response to this, the Student states that she was never informed of any refund policy while she was enrolled with the Provider and specifically, that she was not given any information regarding refunds when she signed the withdrawal form.
  11. The Student’s submissions are that she felt that the Provider’s staff were rude to her and that she felt insulted and upset and was unable to pursue the matter further with them. She then raised a complaint with the International Student Contract Dispute Resolution Scheme on 30 November 2017.
  12. The provider was notified of the Student’s complaint to iStudent on 8 December 2018 and responded by email on 26 January 2018.
  13. Further to their response in [22] above, the Provider stated that a student would only be eligible for a refund if they withdrew from the course within 10 days of the commencement of the course and that this policy is in line with the NZQA guidelines and appears on their website.
  14. As such, the Provider’s submission is that as the Student withdrew after the refund period she was not eligible for a refund.
  15. The Provider also stated in response to the comment by the Student that a refund can be given at any time on compassionate grounds, that such a refund would be at the discretion of the Board of Directors and that a request for this would need to be made in writing. The Provider also confirmed that no such request had been received from the Student.
  16. In addition, the Provider stated that the Student had not made use of their internal complaint process with respect to the issue of the refund.
  17. Nevertheless, the Provider was of the belief that, “based on the records in our system and policies, I don’t think she meets the criteria on refund”, but were willing to discuss this with her.
  18. iStudent informed the Student of the Provider’s response and on 9 March 2018 the Student confirmed that she had made a written request for refund to the Provider.
  19. The Provider informed iStudent on 28 March 2018 that the Student was not entitled to a refund.
  20. No additional reasons were given by the Provider as to why the Student was not entitled to refund or their reasoning as to why she was not eligible for a refund on compassionate grounds.
  21. iStudent notified both the student and the Provider on 5 April 2018 that the matter was now considered to be deadlocked and that a mediator would be appointed.
  22. The Parties met in mediation on 1 May 2018 and were unable to reach agreement and was progress to adjudication.

Student’s Position

  1. From the Student’s submissions dated 7 May 2018, the Student is of the opinion that the Provider is acting unfairly by not agreeing to a refund of the unused portion of the tuition fees as:
  1. The Student withdrew from the course due to health reasons.
  2. The Provider did not advise her that she was not eligible for a refund when she signed the withdrawal  form.
  3. That the Student never received any written warning letters from the school regarding her attendance.
  4. That from the time of her withdrawal until the initial request for a refund, the Student never received any service from the Provider and that it is therefore “unfair and unfavourable” for the Provider to retain the tuition fees.

Provider’s Position

  1. The Provider’s position is outlined in their original correspondence dated 26 January 2018 and states that the Student’s withdrawal was based on her poor attendance and further, that as the withdrawal was outside of the refund period in [30] and that she was not eligible for a refund.
  2. The Provider has also declined the Student’s request for a refund on compassionate grounds as per [36] above. However, no further reasons were given for this.
  3. The Provider’s submission dated 11 May 2018 advise as follows:
  1. That when the Student withdrew from the course and signed the withdrawal form she was aware that “she was outside the refund period” and was aware of the Provider’s refund policy having “sighted and signed the refund policy on several occasions.”
  2. That when the Student visited the Provider on 13 November 2017 she immediately made a request for a refund for “a course she had failed to finish two years previously.”
  3. That the Student felt “slighted” by the Provider’s staff and made a complaint to iStudent as a result.
  4. It is the Provider’s opinion that the Student is attempting to obtain a refund in order to “recoup money that she had spent but was not able to gain any qualifications for.”
  5. That this is a result of the Student’s decision to withdraw due to her personal circumstances and is not the fault of the Provider.
  6. That the Student was initially made aware of the Provider’s refund policy when she completed and signed the International Student Registration Form dated 12 November 2013, a copy of which is provided by the Provider. As part of this form
  7. the Student declared that she had “read and understood the ‘Refund of Fees’ policy for International Students.
  8. The Provider also submits that the refund policy was also explained to the Student during the Provider’s orientation and induction process.The Provider also refers to the Re-enrolment Form signed by the Student and dated 13 February 2015, a copy of which is also provided, which states that the student “understand and acknowledge that there is no refund for any re-enrolment.”
  9. Finally, the Provider advises that the Withdrawal Form which the Student signed clearly states there would be no refunds.
  10. On this basis, the Provider’s position is that the Student does not have a claim for a refund.
  11. Further, the Provider rejects the Student’s submissions that she was “bullied or mistreated” by the staff of the Provider when she visited the Provider on 13 November 2017.

Student’s Further Submissions in Response

  1. The Student’s further submissions dated 20 May 2018 confirm that she elected to withdraw from the course as she was ill because of her pregnancy and signed the Withdrawal Form.
  2. However, the Student denies that she was aware of the Provider’s refund policy on the basis that:
  1. She never saw this on the Withdrawal Form.
  2. That the refund policy was not explained to her by the Provider when she signed the Withdrawal Form.
  3. That the International Student Registration Form submitted by the Provider in [43.vi] was not signed by herself and that the handwriting and signature on the form are different to her own and she was therefore not aware of the refund policy at enrolment.
  1. As such, the Students submission is that she is entitled to a refund for the unused portion of the tuition fees which she paid to the Provider.

Discussion

  1. There is one question which the International Student Contract Dispute Resolution Scheme must determine:
  1. Is the Student entitled to a refund of the unused portion of the tuition fees.
  1. 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.”
  2. To determine the above, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds.
  3. The Provider’s refund policy which appears on their website states that a refund will be paid provided the student withdraws up to the end of the tenth day of the commencement of the course.
  4. Both the Student and the Provider have submitted that the Student was enrolled with the Provider for a period of 1 year.
  5. This policy is consistent with the statutory requirements for refunds as set out in the New Zealand Government Education (Refund Requirements for International Students) Notice 2012 (the “Notice”). This states that an international student enrolled in course of study of three months duration or more, will be eligible for a refund for fees paid should they withdraw from the course within 10 working days of the commencement of the course. Further, the Provider may retain a maximum of 25% of the fees paid for actual expenses incurred.
  6. The Student’s original start date was 10 February 2015. This was deferred at the Student’s request to 20 April 2015 and the Student withdrew from the course on 28 May 2015.
  7. On this basis, as more than 10 working days had elapsed before the Student withdrew from the course and it does not appear that the Student would be entitled to a refund.
  8. The Student’s complaint and submissions to the International Student Contract Dispute Resolution Scheme advise that she withdrew from the course due to health reasons as she was ill due to her pregnancy and there were concerns raised regarding a possible miscarriage as is shown in [19] above.
  9. From this, the Student approached the Provider regarding a withdrawal and believed that the Provider was supporting her decision to withdraw on this basis. She refers to the correspondence in [16], [17] and [20] as support for this.
  10. The Withdrawal Confirmation Form dated the 8 June 2015 states the following as the reason for withdrawal:
  11. “Student met with (NAME) together with her partner and discussed her circumstances. She has been having morning sickness, thus affecting her ability to attend class in the morning. The semester is coming to an end this month and she is unable to continue her studies. She also intends to apply for partnership visa. Without a student visa, she is unable to study full-time. Hence (NAME) accepted her withdrawal and advised her to enrol again when she wants to do the course again.”
  12. From this it seems that while there were attendance issues, the Student explained that this was as a result of her morning sickness and it appears that the Provider accepted this.This gives strength to the Student’s assumption that her withdrawal was as a result of her inability to study due to her pregnancy.
  13. The writer has considered this and is of the opinion that this was a reasonable assumption for the Student to make.
  14. Further, while the assumption of the Student in [60] may be reasonable, this does not result in the Student qualifying for a refund on compassionate grounds as a matter of course and it is the writer’s opinion that these are two separate issues in that the former relates to a reason for a withdrawal by a student while the latter relates to whether the Provider will exercise their discretion to grant a refund for compassionate reasons.
  15. With regards to a refund for compassionate reasons, which could include “serious illness etc”, the Provider’s refund policy on their website states that documentation must be provided supporting this application and that such a refund can be given “at the discretion of (name) Board of Directors” and must be made in writing.
  16. As such, there is no contractual obligation on the Provider to grant a compassionate refund and further, this exceeds the statutory requirements for refunds referred to in [52].
  17. The Student has made such an application in [62], referred to in [35] above and the Provider advised in [36] that the Student was not eligible for this.
  18. On the facts, the Provider has not provided reasons for their decision that the Student was not eligible for a refund for compassionate reasons.
  19. Regardless, the jurisdiction of the International Student Contract Dispute Scheme is limited to financial or contractual matters as determined by the Education Act 1989 and an examination of the reasoning for not granting such a refund in this matter is beyond the jurisdiction of iStudent.
  20. However, the International Student Contract Dispute Scheme may consider whether it would be fair and reasonable for the Student to be given a refund as per [48].
  21. With reference to this, the writer notes that the medical report provided by the Student in [19] above does not specify that the Student was unable to continue with her studies and as such may not have provided sufficient information for the Provider to assess whether the Student’s pregnancy posed a serious risk.
  22. As such, while the Student can make decisions and take appropriate action regarding what she considers necessary for her health, and in fact did so by withdrawing from the course, it does not follow that this automatically qualifies her for a refund on compassionate grounds.
  23. In addition, it is the writer’s opinion that for a refund to be considered reasonable, evidence of a serious risk would need to be provided as well as a medical certificate confirming that the Student is unable to study as a result.
  24. This is not the position in this matter and as such the Student is not entitled to a refund on this basis.
  25. Further, while the Student and the Provider have made reference in their submissions to the treatment that the Student received when she visited the Provider on 13 November 2017 this is not relevant to the question of whether the Student is entitled to a refund.
  26. The final consideration is whether the Student was informed of the Provider’s refund policy.
  27. The Provider’s submissions in [43.i] are that the Student was advised more than once of the Provider’s refund policy and specifically refer to the instances of this in [43.vi], [43.vii], [43.viii] and [43.ix].
  28. While the Provider has submitted an internal Withdrawal Confirmation form which states that the Student withdrew on 28 May 2017, no copy of the Withdrawal Form in [43.ix] signed by the Student has been submitted.
  29. Further, the Student submits in [45.iii] that she did not sign the International Student Registration Form.
  30. However, there is a reference to refunds on the Re-enrolment Form signed by the Student and the Provider’s website and the Provider’s International Student Handbook make clear reference to the Provider’s refund policy and how students can make an application for this.
  31. On this basis and with consideration of the Student and the Provider’s submissions, the finding of the International Student Contract Dispute Resolution Scheme is that the Student had notice of the refund policy and reasonable opportunity to acquaint herself with the provisions of the policy.

Proposed Decision

  1. The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be dismissed.
  2. Both parties now have a final opportunity to provide further submissions before a final decision from iStudents is issued.

Final Decision

  1. The parties were invited to provide any final comments on the proposed decision issued 5 June 2018.
  2. No further comments or submissions have been received from either the Student or the Provider and as such the proposed decision of the International Student Contract Dispute Resolution Scheme is confirmed and the Student’s complaint is dismissed.

 

Dated:  15 June 2018  
Samantha deConing
Adjudicator
International Student Contract Dispute Resolution Scheme