Decision as to whether the provider was obliged to give a refund to student who was unhappy with their study plan / course arrangements following their return from extended pregnancy leave.

Thursday, September 27, 2018

Issue

  1. The Student enrolled in the Postgraduate Diploma Level 7 course with the Provider in October 2016.
  2. The course was offered over an 18-month period.
  3. The Student applied for and was granted Special Leave in May 2017 as she was pregnant.
  4. The Special Leave was to run from 5 June 2017 to 5 March 2018.
  5. The Student contacted the Provider on 30 April 2018 to discuss an extension of the Special Leave.
  6. On 11 and 24 May 2018, the Student supplied the Provider with additional documentation in support of her request in [5] as requested by the Provider.
  7. The Provider declined the Student’s request for an extension on 24 May 2018.
  8. On this basis, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme on 24 May 2018.
  9. On 30 May 2018, the Student also made a complaint using the Provider’s internal complaint process.
  10. After reviewing the Student’s complaint, the Provider decided to grant an extension of the Special Leave for an additional 6 months starting on 1 July 2018 and ending on 1 January 2019.
  11. The Provider also required the Student to commit to a designated study plan. This plan would require the Student to repeat the 4 classes which she had failed previously as well as an additional course that she was previously enrolled for. The cost of repeating the 4 courses would need to be paid by the Student. On completion of these courses, the Student would then begin her dissertation which would take approximately 9 months to complete and which the Student had previously paid for.
  12. Further, as the Provider would have ceased running the programme in [1] by 1 January 2019, the Provider undertook to provide these classes on a 1:1 basis at the Provider’s expense.
  13. In the Student’s response dated 17 June 2018, the Student proposed allowing the cost for the courses to be repeated to be offset against the unused portion of the fees first. This would give the Student the opportunity to ensure that the designated study plan in [11] would be an effective plan for the Student before committing to additional tuition costs.
  14. The Provider was not willing to make further amendments to the designated study plan and the Student confirmed that she wished to proceed with the iStudent Complaint on 25 June 2018.
  15. The Student’s position is that as the Provider has given an extension of the Special Leave on the basis of exceptional circumstances, they are also able to give a refund on this basis. Alternatively, the Student is of the opinion that due to the fact that the delivery of the course has changed from classes to 1:1 tuition, she should be given an opportunity to ascertain the quality of the tutors which will be appointed by the Provider before committing to any additional costs.
  16. The Provider’s position is that the Student is not entitled to a refund as the refund period has ended. Secondly, the Provider’s policy regarding Special Leave clearly states that a Student is required to apply for an additional Student Visa and pay to repeat any course(s) when they wish to resume their studies.
  17. The Student and the Provider met in mediation on 31 July 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 Resolution Scheme.
  2. The Student first contacted iStudent on 24 May 2018 and raised concerns over the manner in which the Provider had dealt with their concerns and specifically, had declined “my leave extension with no valid reason”.
  3. The Student’s email to the Provider dated 23 May 2018 detailed the various communications the Student had had with the Provider as follows:
  1. When the Student applied for maternity leave (Special Leave) in 2017, she was not certain of how much time she would need and was told that she should put down a “random date” and could apply for an extension later if needed. She was not informed that there were special conditions which she would need to meet for an extension.
  2. The Student contacted the Provider on 30 April 2018 and discussed [health concerns] and that this made it impossible for her to resume her studies at that time. The Student’s submission is that the Provider informed her that she could apply for an extension or she could withdraw from the course. The Provider also informed her at this time of the changes which had taken place in the delivery of the course.
  3. The Student then requested an extension of the Special Leave. The Provider notified her that this had been refused on the basis that the [redacted] letter was not sufficient evidence of an exceptional circumstance.
  4. [redacted]
  5. The Student also advised that she had received correspondence from the Provider informing her that if she had medical evidence which confirmed that she was unable to continue with her studies, she could submit this to her health insurance and claim a refund on this basis. The Student contacted her health insurance in this regard and was informed by them that this was not possible.
  6. The basis for the Student’s request for an extension of Special Leave is [for health concerns]. As a result, it is not possible for her to travel from [redacted] for four days at a time in order to attend the required classes. As such, the Student requested that the Provider review her request for a 6month extension of the Special Leave.
  7. This request was refused by the Provider on 24 May 2018 and the Student was further informed that she could either elect to resume her studies and pay for the courses she was required to complete or she could withdraw from the programme, but would not be eligible for a refund. Alternatively, she could enrol with a different provider “who may offer recognition of prior learning “for the courses already successfully completed.
  1. The Student then raised a complaint with the International Student Contract Dispute Resolution Scheme on 24 May 2018 and filed a formal complaint with the Provider in terms of their internal complaint process shortly thereafter.
  2. The Provider emailed the Student on 15 June 2018 and stated that after reviewing the evidence a decision granting “further special leave as you have requested” was made.
  3. The Provider also set out the following conditions, including a study plan for the extension of Special Leave:
  1. The extension would run from 1 July 2018 to 1 January 2019.
  2. The Student would be required to redo the courses which she had failed previously and as such would have to pay the tuition costs for these again.
  3. That as the courses were no longer being offered by the Provider from January 2019, the Provider would arrange for them to be offered on a 1:1 basis for the Student.
  4. The study plan for the Student is as follows:

[redacted]

  1. The Provider also required that the Student obtain a valid Student Visa until the end of March 2020 which would allow sufficient time for her to complete the Postgraduate Diploma.
  2. Finally, the Provider required confirmation from the Student of her intention to return and her acceptance of the study plan by 30 November 2018 “as this will require recruitment of a staff member to run these 1:1 sessions”.  
  1. In the Provider’s complaint summary, reference was made to two options identified by the Student. These were either for a refund to be granted on the basis of exceptional circumstances or alternatively, for an extension of the Special Leave to be granted.
  2. The Provider has not given any further information regarding the Student’s request for a refund or why such a request was not granted.
  3. The Student, for the reasons set out in [15] raised her concerns regarding the Provider’s proposal.
  4. The Provider confirmed that they would not amend their proposal as per [16] above.
  5. The Student confirmed that she wished to proceed with the complaint to the International Student Contract Dispute Resolution Scheme on 25 June 2018 and the parties met in mediation on 31 July 2018. The Parties were unable to reach resolution and the matter is to be determined through adjudication.

Student’s Position

  1. In her email dated 16 June 2018, the Student advised the Provider that she was not satisfied with the outcome of the Provider’s internal complaint process. Specifically, the Student’s opinion is that if the Provider is able to grant an extension on the basis that they “consider my case as exceptional case” then a refund should also be available on this basis.
  2. Alternatively, the Student is concerned with the potential quality of the 1:1 tutoring which will be arranged by the Provider and is of the opinion that she should be given an opportunity to ascertain the quality of the tutors which will be appointed by the Provider before committing to additional costs. As such, her submission is that the Provider should use the unused portion of the tuition fees which she has paid to cover the cost of the courses she needs to repeat. If she is then satisfied with the delivery of the courses, she will then pay the balance of the tuition fees necessary to complete the postgraduate diploma.

Provider’s Position

  1. The Provider’s position is that, on review of the evidence, the Student is entitled to a further 6 month extension to her Special Leave and that this will run from 1 July 2018 to 1 January 2019.
  2. Further, the Provider states that their proposal detailed in [23] is “fair in this circumstance”.
  3. The Provider also confirms that the requirements that the Student pay for any courses which she will need to repeat when she resumes her studies is confirmed in the Provider’s International Student Special Leave form which was signed by the Student when she was granted the initial leave in [3].
  4. The Provider also requires the Student to either accept the proposal in [23] in writing or, should she elect not to do so, that the complaint be considered “deadlocked” and will then be dealt with as a complaint by iStudent Complaints.
  5. The Student confirmed that she wished to proceed with the complaint through iStudent Complaints on 25 June 2018.

Discussion

  1. There are two questions 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.
  2. Alternatively, is the Student entitled to resume her studies and use the unused portion of tuition fees she has already paid to offset the tuition fees she is required to pay for the courses she previously failed in order to ascertain the quality of the 1:1 tuition before committing to pay further fees to the Provider.
  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 [34.i] 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 no refund will be paid if a student withdraws after the commencement of the course.
  4. Both the Student and the Provider have submitted that the Student had commenced her studies before the Special Leave was granted and as such, in accordance with the Provider’s refund policy, no refund is due on this basis.
  5. As the Student has not challenged the validity of this or claimed a refund on this basis, no further discussion of this is needed here.
  6. The Student’s submission to the International Student Contract Dispute Resolution Scheme is that, as the Provider granted an extension of Special Leave on the basis that the Provider considers it to be an “exceptional case”, this would also apply to it being a valid reason for granting a refund on this basis as well.
  7. The Complaint Summary which details the process and outcome of the Provider’s Internal Complaint Process states the following regarding the Student’s request for an extension to the Special Leave:

[redacted]

  1. It is the writer’s opinion that the granting of an extension to the Special Leave 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.
  2. With regards to a refund for compassionate reasons, which could include “serious illness”, the Provider’s refund policy on their website states that “the amount and approval of any refund is at the discretion of the Executive Director - Finance, Compliance and Business Intelligence in consultation with the Head of Department.”
  3. As such, there is no contractual obligation on the Provider to grant a compassionate refund.
  4. The Complaint Summary submitted by the Provider states the following:

[redacted]

  1. The outcome of the Provider’s Internal Complaint process was to grant the Student an extension of Special Leave. No summary of the reasoning for not granting a refund on compassionate grounds was given.
  2. Regardless, the jurisdiction of the International Student Contract Dispute Resolution 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 had the Student made such an application and the Provider had decided not to do so is beyond the jurisdiction of iStudent Complaints.
  3. However, the International Student Contract Dispute Resolution Scheme may consider whether it would be fair and reasonable for the Student to be given a refund on compassionate grounds.
  4. It is the writer’s opinion that for a refund to be considered reasonable in these circumstances, 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.
  5. With reference to this, the writer notes that the Student’s submission is that she was unable to return to her studies after the initial Special Leave period due to [redacted]. Further, her request for an extension was on the basis that these difficulties would be resolved after a further period of 6 months.
  6. As such, it is the writer’s opinion that the decision of the Provider to grant her request for an extension of the Special Leave is fair and reasonable on the basis that the Student would be in a position to resume her studies at this later time.
  7. Following from this, it is the writer’s opinion that the Student is also not entitled to a refund on the grounds of exceptional circumstances as her inability to resume her studies is temporary and the granting of the extension to the Special Leave by the Provider is a reasonable and fair proposal.
  8. In order to determine the statutory obligation on the Provider regarding refunds, attention must be given to the Education (Pastoral Care of International Students) Code of Practice 2016(the Code). Specifically, the following provision regarding refunds is relevant here:

Clause 29 Outcome 8: managing withdrawal and closure

Signatories must ensure that the fees paid by international students for educational instruction in New Zealand are secure and protected in the event of student withdrawal or the ending of educational instruction or the closure of a signatory.

  1. The Code also states at Clause 30(2)(c) that a provider’s refund policy must include a refund in situations where a signatory ceases “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”.
  2. Finally, the Code states at Clause 30(3) that if such a situation arises, “the signatory must deal with fees paid for services not delivered or the unused portion of fees paid as follows:

(a) refund the amount in question to the student (or the student’s parent or legal guardian).”

  1. The Provider in [12] is no longer running classes for the courses which the Student requires to complete the Postgraduate Diploma as from 1 January 2019.
  2. However, the Provider has committed to ensuring that the Student is able to complete the required courses by providing the tuition on a 1:1 basis as set out in the designated plan in [23.iii].
  3. As such, it is the writer’s opinion that the Provider has taken reasonable steps “to provide a course of educational instruction as contracted with a student” and that the refund requirements in [57] do not apply in this circumstance.
  4. This is also supported by the fact that had the Student returned to class after the initial Special Leave extension period, she would have been able to attend classes and that the Provider has had to take further steps to ensure that she will still be able to complete these classes now that an extension of Special Leave has been granted.
  5. With regards to the Student’s alternative request that the repeat fees be offset against the balance of fees already paid, consideration must first be given to the contractual and statutory obligations for the Student and the Provider.
  6. In [33] the Provider states that the requirement to pay for any courses which the Student would need to repeat when she resumes her studies is confirmed in the Provider’s International Student Special Leave form.
  7. As such, there is a clear contractual obligation on the Student to do so.
  8. There is no statutory obligation on the Provider to offset the unused portion of the tuition fees as requested by the Student in [36.ii].
  9. Further, concerns relating the quality of tuition are beyond the jurisdiction of the International Student Contract Dispute Resolution Scheme as detailed in [49].
  10. As such, it is the writer’s opinion that there is a clear contractual obligation for the Student to do so and that as her reasoning for being allowed to do so relates to the quality of the tuition, that this issue is unable to be ascertained by this forum.

Proposed Decision

  1. The proposed decision of the International Student Contract Dispute Resolution 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 the International Student Contract Dispute Resolution Scheme is issued.

Final Decision

  1. The proposed decision as set out above has been provided to both the Student and the Provider.
  2. The Provider has confirmed their acceptance of this decision by email dated 18 September 2018.
  3. The Student has advised by email dated 17 September 2018 that she disagrees with the decision made by International Student Contract Dispute Resolution Scheme. No further basis for this has been given by the Student.
  4. In the absence of any further evidence or submission, the reasoning and proposed decision to this complaint as set out above are confirmed.
  5. The final decision of the International Student Contract Dispute Resolution Scheme is that the Student’s claim is dismissed.

 

Dated:  27 September 2018  
Samantha deConing
Adjudicator
International Student Contract Dispute Resolution Scheme