Refund request following termination of studies due to undisclosed health concerns

Issue/Summary of Complaint

International Student enrolment application form

1. The Student[1], [Redacted], was accepted to attend Term 3, 2019 (the “Program”) with [Redacted], the Provider.
2. The Student completed an International Student enrolment application form (“application form”), and this was signed by both the Student and the Student’s parents late January 2019.
3. An updated version of the application form was sent to the Student by the Provider in July 2019.  This was completed then signed by the Student and the Student’s parents and returned to the Provider in mid-July 2019.
4. The application form included questions relevant to this adjudication: “Does the student have any history of previous illness that may affect their enrolment, including mental illness?”, “Is the student currently on any medication?” and a follow up note under this question that advises “Please note: If you suffer from conditions requiring medication, it is advisable to bring your own medication to NZ.  You will be required to notify the school regarding any medications that you bring with you.”  There was also a general question around informing the school of “Is there anything further that the school needs to be aware of that may impact the suitability of the student as an international student?”
5. The application form also required the Student to indicate if they do suffer or have suffered from any medical conditions, Depression/Anxiety was listed as one of the options.

Tuition fees and homestay accommodation for Term 3, 2019

6. The Student was issued with an invoice by the Provider for the payment of tuition fees for Term 3, 2019 as well as homestay accommodation and insurance dated 3 February 2019.  The full amount of the invoice was NZD $8,032.57.
7. The Student’s parents paid the full amount of the Provider invoice on 27 February 2019. The full amount paid covered the study period of 10 weeks (from Monday 22 July 2019 to Friday 27 September 2019).

Contract terminated

8. The Provider was approached by the homestay accommodation host to advise that medication (Rivotril) had been sighted in the Student’s homestay accommodation bedroom[2], this led to a series of activity by the Provider and communication exchanged between the Provider and the Student’s parents which resulted in the contract being terminated and the Student being returned to her home country, [Country], earlier than scheduled.
9. The Provider prepared a letter of notification to terminate the contract and return the Student to her home country, to the Student’s parents dated 31 July 2019.
10. The Provider outlined the reasons why they had arrived at the decision to terminate the contract and return the Student and had set a date of return to her home country no later than Friday, 9 August 2019.

Complaint laid with iStudent Complaints

11. The Student raised a complaint with the New Zealand Qualifications Authority (NZQA) and was referred to iStudent Complaints on the basis that there was a contractual and financial dispute between the Provider and the Student.
12. The Provider was notified of the Student’s complaint on 2 March 2020.
13. There was a delay in moving this matter forward owing to the impact of COVID-19 in NZ and around the world.  For both parties, each country was placed into a national lockdown.
14. The Student and the Provider were due to meet in mediation in an attempt to reach agreement. However, mediation did not occur and there was a request for adjudication.

Background

15. The Student applied for the Program by completing an application form which outlined criteria requiring disclosure of information including background history.
16. The application form included questions relevant to this adjudication: “Does the student have any history of previous illness that may affect their enrolment, including mental illness?”, “Is the student currently on any medication?” and a follow up note under this question that advises “Please note: If you suffer from conditions requiring medication, it is advisable to bring your own medication to NZ.  You will be required to notify the school regarding any medications that you bring with you.”  There was also a general question around informing the school of “Is there anything further that the school needs to be aware of that may impact the suitability of the student as an international student?”
17. The application form also required the Student to tick if they “suffer from or have suffered from any of the following medical conditions” the list included Depression/Anxiety.
18. The aforementioned application form was marked as “no” against the question set out in number 17 above when it was completed in January 2019.
19. The original application form was completed then signed and dated on 23 January 2019 by the Student and signed and dated on 27 January 2019 by the Student’s parents, [Redacted] and [Redacted].
20. The Provider issued an invoice to cover the cost of tuition fees, homestay accommodation and insurance dated 3 February 2019.  The amount to pay covered the period of 20 July 2019 to 27 September 2019.
21. The Student’s parents paid the full fees to cover tuition, homestay accommodation and insurance as indicated by the international bank transfer dated 27 February 2019 which amounted to NZ$8,032.57. This consisted of: [Redacted]

22. The Provider sent an updated version of the original application form to the Student in July 2019.  The explanation offered for sending an updated version of the application form by the Provider was “These need to be signed by all students and parents as a result of changes to our Education Act and Code of Practice. Please send to me once signed.”
23. The updated version of the original application form has an expanded Part two which includes additional definitions and clauses inserted. 
24. Part two of the application form outlines the Term of Agreement about responsibility for the Student in clause 4:
    1. “Unless otherwise agreed in writing between the parties, the School’s responsibility for the Student commences on the first day of the Period of Enrolment and ends on the last day of the Period of Enrolment, or in the event that the Student’s Tuition is terminated, on the date of termination…”
25. Part two of the application form also sets out the requirements for informing the Provider as shown in clause 16:
    1. “The Parents agree to provide the School with educational, medical, financial or other information relating to the wellbeing of the Student as may be requested from time to time by the School.  If the Parents provide misleading information or fail to disclose information about the Student to the School, such that the School has to change or modify the level of Tuition or Accommodation required by the Student, the School may charge the Parents such fees as required to adequately compensate for such additional requirements.  For avoidance of doubt, the obligation to disclose information continues during the term of this Agreement and the Parents and Legal Guardians are obliged to notify the School in respect of any changing conditions in relation to the Student.”
26. Clause 17 of Part two of the application form is divided into 4 sub-clauses under the heading “The Student and the Parents confirm that”:
    1. Clause 17 (a) The Student does not suffer from any medical condition or behavioural condition (including mental health conditions and allergies) that may negatively impact on the health, safety or education of the student or any other student at the School, except as disclosed in writing in the Application form.
    2. Clause 17 (b) The Student does not have any medical or other special needs that require additional support, except as disclosed in writing on the Application form.
    3. Clause 17 (c) The Student has never been charged with or convicted of any crime, or the subject of other proceedings before any court, except as disclosed in writing on the Application form.
    4. Clause 17 (d) All information in the Application Form is true and correct to the best of their knowledge and belief.
27. Clause 24 of Part two of the application form discusses Conduct, Discipline and Termination:
    1. “In the event of any breach of this agreement by the Student or the Parents, the School may take any disciplinary step it considers appropriate, including terminating this Agreement, and/or suspending, excluding or expelling the Student…of its decision to terminate the Agreement or to exclude or expel the Student.”
28. The updated version of the application form also includes a more thorough section titled “Parents/Legal guardians and Students’ declaration and authorisation”.  The difference in the versions which were signed in January and then again in July are the inclusion of Key Terms:

This Contract of Enrolment includes provisions:

1. That allow the School to discipline the Student, including by expulsion
2. That control and limit the Student’s rights of refund when Enrolment ends early
3. That require the Parents to make full disclosure of all relevant information and
4. That provide consent for the School to permit certain activities without further consent from the Parents.

This is an important legal document, please read all clauses carefully.

29. The application form also includes at Schedule Two an outline of the Disciplinary Policy:

1. The following is the School’s current disciplinary policy for dealing with breaches of the Agreement.  This is not intended to restrict the School’s general power of discipline and this policy may be changed from time to time at the discretion of the School.

Overview

2. Except in serious situations where immediate termination of the Agreement is necessary, or where the breach does not warrant any formal response other than a warning, the School will endeavour, where appropriate, to follow a two-stage disciplinary process.
3. In Stage One, the School will investigate and determine the facts, and will reach a conclusion on what happened and whether it amounts to a breach of the Agreement.
4. In Stage Two, if the School has determined that a breach has occurred, the School will consider the appropriate response to that breach, up to and including termination of the Agreement.
5. The Student will have an opportunity to provide a response to the alleged breach that the School is investigating (the Allegation) and any proposed disciplinary action that the School is considering taking (the Proposed Action).
6. The policy does not limit the School’s power to take appropriate disciplinary action urgently and without following this process if this is necessary having regard to the seriousness of the breach.

30. The updated version of the application form includes a section titled Disciplinary Procedure and is broken down into two stages;

Stage One; Incident investigation

9.         When the School learns of any incident or any other thing that may be a breach of the Agreement or might otherwise warrant a disciplinary response, the School will notify the Student of the Allegation and will provide the Student with an opportunity to give a response.

10.       Where appropriate, having regard to the seriousness of the Allegation, the Student will have the opportunity to respond either in person or in writing or both, at the choice of the Student.  The School will receive this response and give it genuine consideration before making a decision about the Allegation. 

11.       When the School makes a decision about the Allegation it will advise the Student and parent, in writing if possible, about its conclusion as to what happened and whether it amounts to a breach of the Agreement.

Stage Two: Outcome discussion

12.       If the School determines that a breach of the Agreement has occurred, it will advise the Student and parent of the possible disciplinary actions that it will consider taking in response to the breach and will provide the Student and parents with an opportunity to give a response.

13.       Where appropriate, having regard to the seriousness of the breach, the Student and parent will have the opportunity to respond either in person or in writing or both, at the choice of the Student.  The School will receive this response and give it genuine consideration before making a decision about the disciplinary action to be taken.

14.       When the School makes a decision about the disciplinary action that it will take in response to the breach it will advise the Student and parents of its decision, in writing if possible.  The disciplinary action will not take effect, and no actions will be taken to put it into place, until the Student and parents have been advised of the decision.

31. The updated version of the application form includes a section titled Refund Policy which is outlined in Schedule Three:

Request for a refund of international student fees:

The School will consider all requests for a refund of international student fees.  Requests should be made in writing to the School as soon as possible after the circumstances leading to a request:

15.       A request for a refund should provide the following information to the School:

a)         The name of the student

b)         The circumstances of the request

c)         The amount of refund requested

d)         The name of the person requesting the refund

e)         The name of the person who paid the fees

f)          The bank account details to receive any eligible refund

g)         Any relevant supporting documentation such as receipts or invoice, medical evidence if applicable.

32. Schedule Three outlines Non-refundable fees:

16.       The School is unable to refund some fees.  The following fees relate to expenses that the School may have paid or will incur as a result of receiving an application for enrolment and cannot be refunded:

a)         Administration Fee:  Administration fees meet the cost of processing an international student application.  Administration fees exists whether an application is accepted or not or whether a student remains enrolled after an application is accepted.

b)         Insurance: Once insurance is purchased, the school is unable to refund insurance premiums paid on behalf of the Student.  Students and families may apply directly to an insurance company for a refund of premiums paid.

c)         Accommodation Support Fee:  Accommodation Support fees meet the cost of processing a request for homestay accommodation by the Student.  Costs incurred for arranging homestay accommodation for the Student prior to the refund request, cannot be refunded.  This also includes the checks done for Designated Caregivers.

d)         Used Homestay Fees:  Homestay fees paid for time the Student has already spent in a homestay cannot be refunded.  Used homestay fees may also include a notice period of two weeks.

e)         Portion of unused Tuition Fees: The School may retain a portion of unused tuition fees.  Amounts retained will relate to costs that have been incurred or committed by the School and may vary.

33. Schedule Three outlines Where the Student’s enrolment is ended by the School:

21.       In the event the Student’s enrolment is ended by the School for a breach of the Contract of Enrolment, the School will consider a request for a refund less:

a)         Any non-refundable fees set out in this policy

b)         Ten weeks tuition fee (one term)

c)         Any other reasonable costs that the School has incurred in ending the student’s enrolment.

34. The Student’s parents booked a flight on 13 February 2019 for the Student to arrive into Auckland on 20 July 2019.
35. The Student was placed with her homestay accommodation host upon arrival.
36. The homestay host contacted the Provider on 27 July 2019 to raise concerns about the Student which included her eating habits.  The homestay host also contacted the Student’s parent to discuss her concerns. 
37. The Provider’s Accommodation Manager visited the homestay on 27 July 2019 and spoke with the homestay host as well as the Student.  The Accommodation Manager talked with the Student about ways to address some of the homestay hosts concerns as well as support that the Student could access at school.
38. The homestay host happened upon medication in the Student’s bedroom.  The medication was prescribed by a psychiatrist the Student had seen in March 2019.
39. The Provider set up appointments for the Student at school on 29 July 2019.  The Student was asked to speak with a school counsellor and also a nurse.   
40. The Provider prepared a letter which was dated 31 July 2019 and addressed to the Student’s parent advising that the Student would be removed from the program and returned to her home in [Country] owing to the Provider’s concerns for the Student’s safety and well-being:
    1. “In the application form and contract with [Redacted], student and the parents are required to confirm the student does not suffer from any medical or behavioural condition (including mental health conditions and allergies) that may negatively impact on the health, safety or education of the student or any other student at the school.  This information is important to enable an assessment on suitability for the placement and if deemed suitable what support the school can provide while placed at [Redacted].  It is also to ensure a suitable homestay is available and can support any special requirements.”
    2. “The signed application form submitted for [Redacted] indicated there were no current or previous medical conditions that the School needed to be aware of.  It is now evident that [Redacted] has a number of medical conditions which require specific medical support and close support from people who know her well.  The school and homestay are unable to provide this.”
    3. “This non-disclosure is in breach of the contract and following a review of the situation the school will be terminating the agreement with effect Friday, 9 August 2019 or earlier.”
    4. “As a gesture of good faith [Redacted] would like to offer four weeks refund of tuition fees ($1,500.00).”
    5. “[Redacted] requests you organise travel arrangements for [Redacted] to return to home no later than Friday, 9 August 2019.”
    6. “International Director, [Redacted] will phone you to discuss this further or you can contact him by email…”
41. The Provider had some difficulty reaching the Student’s parent as she was travelling and also due to the time differences between New Zealand and [Country].
42. The Student’s parent sent an email communication to the Provider on 1 August 2019 advising “[Redacted] also told me that she mentioned to your counsellor that she has been seeing a psychotherapist since January, about twice a month.  Please note that we did not mention it in the application form because [Redacted] has not been diagnosed with any illness…we should have mentioned her occasional sessions with the psychotherapist in the application form, I do apologize and ask you to kindly consider it a culture clash – in [Country] anything regarding the person’s psychological area is strictly private unless it raises such cause of social alarm to require a compulsory medical treatment.  This was not and is not [Redacted]’s case.”
43. The Provider made contact with the Student’s parent on 2 August 2019 to discuss their concerns for the Student’s safety and well-being.
44. The Student’s parents had already purchased a non-refundable flight in February 2019 for the Student’s return to [Country] on 29 September 2019.
45. The Student’s parents purchased a flight on 2 August 2019 for the Student to return to [Country] on 9 August 2019.
46. The Student’s complaint was acknowledged by iStudent Complaints on 19 February 2020 and the Provider was advised of this on the same date.
47.  The Student and the Provider were due to meet in mediation in an attempt to reach agreement. The matter was referred to adjudication on 29 May 2020 and the Student and the Provider have now had the opportunity to make their submissions.

Student’s Position

48. The Student’s submissions to the International Contract Dispute Resolution Scheme are dated 14 May 2020, 15 May 2020 and 28 May 2020.
49. The Student’s parents responded to the Provider’s position regarding a full refund of tuition and homestay accommodation fees as well as a refund for the purchased return flight from NZ to [Country] for 9 August 2019, as follows:
    1. “The Provider notified their one-sided decision to terminate our daughter’s enrolment on 31 July 2019, [Redacted] left on 9 August 2019, the period between 31/7/2019 and 9/8/2019 was the notice period.”
    2. “The Provider retained two weeks of unused accommodation fees”.
    3. “They did not have time to waste as Mr [redacted] told me on the phone when he notified me [of] their decision to kick our daughter out had already been taken.  This can hardly be called support and we insist we are refunded in full.”
    4. “Never has anyone from [Redacted] ever suggested we should purchase a refundable return ticket, nor has the Provider supplied any evidence in this respect.”
    5. “[Redacted]’s staff was perfectly aware most families, including us, had already purchased their return tickets, as stated by [Redacted] on 26/6/2019 and the school received [Redacted]’s flight arrangements by 15/7/2019 together with the new contracts.”
    6. “…we insist on receiving a full refund of tuition and accommodation fees as well as airfare.”
50. The Student’s parents have referred to the Education (Pastoral Care of International Students) Code of Practice “It is clear we would not have sent our daughter to the other side of the planet had we suspected she would be mistreated so horribly, with the Provider never having any intention to abide by the Education (Pastoral Care of International Students) Code of Practice 2016 (including Amendments 2019)”.
51. The Student’s parents state that “In the letter dated 31 July 2019 [Redacted] acting as school principal alleged, we had failed to report our daughter’s previous medical conditions and that such non-disclosure was in breach of the contract.  Clause 17 of the contract we were required to sign on 15^th July 2019 (4 days before our daughter left for New Zealand and after we had already paid all fees and travel costs in advance thus putting us in a position to not be able to refuse such imposition after the contract we had already signed in January 2019”.  
52. The Student’s parents state “Based on what [Redacted]’s doctors told us, as confirmed by written statements, by 15^th July 2019 when we signed the second contract our daughter did not suffer from any medical condition or behavioural condition (including mental health conditions and allergies) that may negatively impact on the health, safety or education of the Student or any other student at the School – [Redacted] herself did not report that any student or teacher at [Redacted] complained about [Redacted]’s behaviour...”
53. The Student’s parents state “[Redacted]’s temporary anxiety was only diagnosed by a psychiatrist in March 2019, 2 months after we had signed the application form, the information we provided on 27 January 2019 was correct.”
54. The Student’s parents state “From a contractual point of view on 15^th July 2019 we were only required to state our daughter’s conditions at the precise time when we signed the new contract to the best of our knowledge and belief and the information we provided in the Application Form on 27^th January 2019 was correct with respect to when we signed it along with the Agreement we signed in January.”
55. The Student’s parents state “The phrasing the obligation to disclose information continues during the term of this Agreement and the Parents and Legal Guardians are obliged to notify the School in respect of any changing conditions in relation to the Student was only present in Clause 16 in the 15 July 2019 Agreement, not in the Agreement we signed on 27 January 2019 and the information we provided on 27 January 2019 was correct with respect to the time when we provided it.”
56. A letter has been provided by Dr. [Redacted] who is the psychologist/psychotherapist who dealt with the Student prior to her leaving [Country].  Dr. [Redacted] has remarked “I first met [Redacted] on 14 January 2019…[Redacted]’s parents were worried about her performance at school and episodes of trichotillomania.  During the following interviews with [Redacted] between end of January and February, I could assess a general anxious state and mood swings.  By March 2019 [Redacted]’s trichotillomania had not receded.  Following the request of [Redacted]’s parents, I suggested the name of the psychiatrist working with our team for a pharmacological counselling to support the psychological therapy.  Dr. [Redacted] met [Redacted] with her parents and prescribed 1 pill Rivotril 2 mg/day.  I met [Redacted] an average 3 times a month between end of January and May 2019 and twice a month between June and July 2019 and she was always collaborative showing a good therapeutic alliance; our last interview was on 8 July 2019.  I could assess how [Redacted]’s anxiety had decreased and how her general mood had improved...  I did not see any issues that could preclude [Redacted]’s experience in New Zealand, making me available to interview via Skype for the duration of her stay abroad.”[3]
57. A letter has been provided by Dr. [Redacted] who is the psychiatrist that saw the Student “for the first time in March 2019”.   A summary provided by the psychiatrist of the Student’s first visit in March 2019, “An anxious state emerged during the visit, the young girl related occasional relationship difficulties with peers and episodes of trichotillomania. I decided to prescribe Rivotril 2mg/day, to counter what seemed to be a temporary state of emotional difficulty and mood swings in the face of a recent class change at school.”  Commenting on a visit made to Dr.[Redacted] in June 2019, the psychiatrist has remarked “I saw the patient again in June 2019 and the clinical picture had improved, the trichotillomania had ceased, anxiety considerably decreased, performance at school improved and social relationships were more satisfactory, so I agreed with the patient and her parents that she was fit to leave for a 2 and a half months summer study experience in New Zealand.”[4]
58. The Student’s parents state “By 15 July 2019 [Redacted] was only still taking a very mild dose of tranquilizer that she had been prescribed in March 2019, 2 months after we had signed the Application form, a medication that simply needed gradual discontinuation but was not vital for her well-being at the time we signed the July contract, nor did she require “additional support” to take a pill in the evening.  Again, our statements with respect to the new contract were correct.”
59. The Student’s parents position is therefore that they are entitled to “a full refund of tuition and accommodation fees as well as travel expenses for an outstanding amount of NZD $8,253.56 (our refund request of October 2019 was of NZD $12,892.86) the Provider only refunded NZD $4,639.30, and rejects the Provider’s response that they will not be granted a full refund of tuition fees, homestay accommodation or the airfare that was purchased to allow the Student to return to [Country] on 9 August 2019.
60. In their submission, the Student’s parents outline the refund that was offered by the Provider in a letter addressed to the Chair of the Board of Trustees of [Redacted]:

“In her letter dated 31 July 2019 your principal [Redacted] offered us a refund of 7 weeks tuition as a “gesture of good faith”:

• “The refund of 7 weeks tuition is nothing more than what is foreseen in the Agreement in case of termination prompted by the school...”
• “Ms Nixon also conveniently forgot to mention that we are entitled to full refund of all unused accommodation weeks, so in the very worst case we are entitled to a refund of NZD $2,625 for 7 weeks tuition and NZD $2,400 for the unused accommodation weeks for a total NZD $5,025.”
• “Given the extent of the abuses we were victims of and the multiple violations of the Education (Pastoral Care of International Students) Code of Practice 2016 (including Amendments 2019) we demand full refund of all costs related to our daughter’s enrolment at [Redacted], including the additional flight ticket we were forced to purchase on a one week notice.”

61. The Student’s parents have provided a breakdown of full costs that they “ask to be refunded”:

[Redacted]

62. As such, the Student’s parents request a full refund of the tuition fees that have been paid to the Provider, as well as a refund for the homestay accommodation and the cost of the return flight purchased on 2 August 2019 for a departure date of 9 August 2019 for the Student to return to [Country].

Provider’s Position

63. The Providers position is detailed in their submissions dated 27 May 2019 as summarised below.
64. International Student enrolment application form:
    1. “The School considers we provided an excellent educational opportunity to [Redacted].”
    2. “[Redacted]’s parents deliberately withheld important medical information that should have been discussed with the School.  Disclosure would have allowed the School to determine if we were able to provide suitable accommodation for a student with a recent history of significant medical issues.  The family would also have been advised to purchase a flexible airfare and appropriate medical and travel insurance.”
65. Tuition fees and homestay accommodation for Term 3, 2019:
    1. “The School recognises the complexity and difficulties for families dealing with any medical issues and has already provided refunds of all the tuition and accommodation costs not delivered.”
    2. A refund was processed on 21 October 2019 for the amount of $4,639.30.
66. Contract terminated:
    1. “The School acted in good faith in providing an opportunity for [Redacted] to come halfway around the world for the experience of attending our school for 10 weeks and living with a homestay family.”
    2. “The deliberate non-disclosure of medical issues by [Redacted]’s parents and [Redacted] was a breach of the signed contract, the consequences of which led to the termination of their contract with the School.”
    3. “[Redacted]’s health issues were beyond the capabilities of the homestay hosts to provide the contract they had agreed to. The School was unable to establish alternative accommodation when [Redacted] became symptomatic.”
    4. “[[Redacted]] disclosed her recent medical history, on-going prescription treatment and likely behavioural developments.”
    5. “The School provided excellent wraparound care alongside engaging with [Redacted] and her parents.  However, the School had serious concerns about [Redacted]’s safety and wellbeing and there was no alternative suitable accommodation.”
67. The Provider states they have met their contractual obligations:
    1. “The School considers we have been fair and reasonable and more than met our contractual obligations.”
68. The Provider has remarked on the refund of tuition fees:
    1. “The contract signed by Ms [Redacted] and Mr [Redacted] clearly states the School is not required to provide any refund when a contract is terminated.  The contract signed by Ms [Redacted] and Mr [Redacted] was for one term/10 weeks’ tuition.”
    2. “Although, not required to do so, the School acted in good faith and provided a full refund for the seven weeks of tuition that [Redacted] did not receive.  [Redacted] attended [Redacted] for three weeks so the tuition for this period was retained by the School.”
    3. “The administration fee was retained by the School as this work was carried out.”
    4. “With respect to the above, the School considers its refund of seven weeks’ tuition fees very reasonable.  Ms [Redacted] and Mr [Redacted] broke the contract by failing to disclose and concealing [Redacted]’s significant health issues and the on-going medical treatment for these issues provided to her before and during her time at [Redacted].”
    5. “The family agreed to the conditions of the contract knowing the consequences of non-disclosure of health issues including that the contract may be terminated.”
    6. “[Redacted] received medical treatment from a psychiatrist and psychologist in February/March 2019.  The prescription medication used to treat her condition was ongoing whilst she was at [Redacted], but not known by the School.  There was a clearly stated requirement in the contract to disclose such information.  The contract was refreshed and re-signed in July 2019 by [Redacted] and her parents shortly before [Redacted] left [Country] for Auckland.” 
    7. “The contract was terminated for health and safety reasons when [Redacted] became symptomatic for mental health issues.  [Redacted]’s wellbeing was at the centre of the decision to terminate the contract so she could return home to be with her family who could provide the necessary support and medical professionals whom she was being treated by.”

69. The Provider has remarked on the refund of Accommodation fees:
    1. “The School considers we have met our contractual obligations regarding refunds of accommodation costs following termination.”
    2. “The costs for the time [Redacted] stayed with her homestay family have been retained and paid to the homestay host.  In addition, payment for the two-week notice period required has been retained and paid to the homestay host.”
    3. “The School considers this fair and reasonable.  The services provided and a reasonable notice period are the only accommodation costs paid for by Mr [Redacted] and Ms [Redacted].”
    4. “The homestay hosts were expecting to host a student for 10 weeks.  However, they were unable to provide the close care and supervision for the undisclosed mental health issues that [Redacted] became symptomatic for shortly after her arrival.  The homestay host family provided excellent support to [Redacted] including extending her stay with them whilst Ms [Redacted] was on holiday.  The family have been subjected to emotional accusations by Ms [Redacted] that the School considers are unjustified.  The considerable volume and judgemental style of the on-going correspondence from Ms [Redacted] over many months has been upsetting for the homestay family and school staff.”
    5. “When [Redacted] became symptomatic, she disclosed her condition and described progressions from her previous episodes to the school’s health professionals, international Director and Homestay Coordinator.  [Redacted] staff responded quickly and professionally providing wrap around care to her.”
    6. “Due to the nature of the medical issues and the likelihood of these escalating, the School considered [Redacted]’s health and wellbeing were paramount.  No other homestay family was available which further contributed to the course of action taken by the School.”

70. The Provider has remarked on the refund of Airfare: 
    1. “Airfares are the responsibility of the family and are arranged by them.  The family is liable for any extra costs incurred for changes that are made to flight bookings.”
    2. The Provider maintains that “The School does not accept any responsibility for any extra costs incurred due to [Redacted] returning home prior to her original set date.  If the medical condition that she exhibited while here was disclosed prior to her coming to [Redacted], the School would have had an opportunity to discuss this with the family.  We would have considered the risks, determined if we could accommodate [Redacted] and agreed on options if her health became a concern.  We would have also advised the family to purchase an open ticket for the return flight and/or to purchase appropriate insurance cover for any such costs.”
    3. “It is common practice for the return fare to be booked as a ticket with flexibility for dates.  This enables flights to be changed with a nominal extra charge to allow for unexpected family events, health or other issues.”
    4. “Insurance cover is usually available for flight changes for health reasons where the condition has been disclosed.”

Discussion

71. The questions which the International Student Contract Dispute Resolution Scheme must determine:
    1. Refund of the paid tuition fees.
    2. Refund of the paid student’s accommodation.
    3. Reimbursement of the cost of the student’s return flight from NZ to [Country].

72. 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.”

73. To determine whether the Student’s parents are entitled to a full refund of the tuition fees, homestay accommodation and return airfare purchased on 2 August 2019 for the student to depart on 9 August 2019, consideration must be given to the facts and information provided by the Student and the Provider.

74. The Student’s parents provided submissions for consideration on 14 May 2020, 15 May 2020 and 28 May 2020. The Student’s parents have written at [50] “In the letter dated 31 July 2019 [Redacted] acting as school principal alleged, we had failed to report our daughter’s previous medical conditions and that such non-disclosure was in breach of the contract.  Clause 17 of the contract we were required to sign on 15^th July 2019 (4 days before our daughter left for New Zealand and after we had already paid all fees and travel costs in advance thus putting us in a position to not be able to refuse such imposition after the contract we had already signed in January 2019”. 
75. The Student’s parents have written at [52] “Based on what [Redacted]’s doctors told us, as confirmed by written statements, by 15^th July 2019 when we signed the second contract our daughter did not suffer from any medical condition or behavioural condition (including mental health conditions and allergies) that may negatively impact on the health, safety or education of the Student or any other student at the School – [Redacted] herself did not report that any student or teacher at [Redacted] complained about [Redacted]’s behaviour...”

76. The Student’s parents have written as stated at [54] “From a contractual point of view on 15^th July 2019 we were only required to state our daughter’s conditions at the precise time when we signed the new contract to the best of our knowledge and belief and the information we provided in the Application Form on 27^th January 2019 was correct with respect to when we signed it along with the Agreement we signed in January.”

77. The Student’s parents have written at [58] “By 15 July 2019 [Redacted] was only still taking a very mild dose of tranquilizer that she had been prescribed in March 2019, 2 months after we had signed the Application form, a medication that simply needed gradual discontinuation but was not vital for her wellbeing at the time we signed the July contract, nor did she require “additional support” to take a pill in the evening.  Again, our statements with respect to the new contract were correct.”

78. To determine the refund of paid tuition fees, homestay accommodation and return airfare purchased on 2 August 2019 for the student to depart on 9 August 2019, consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds.

79. The Student’s parents agreed to a contract of enrolment, which is a written contract entered into between the student (or the student’s parent if the student is under the age of 18) and the board of [Redacted] that entitles the student to receive tuition at the school as set out in section 2 of the Education Act (1989).

80. Included in the Key Terms section under Parents/Legal Guardians and Students’ declaration and authorisation at [28] it is stated “This Contract of Enrolment includes provisions (i) That control and limit the Student’s rights of refund when Enrolment ends early”; and, “That require the Parents to make full disclosure of all relevant information.  This is an important legal document, please read all clauses carefully.”

81. The Provider states at [66.2] that “The deliberate non-disclosure of medical issues by [Redacted]’s parents and [Redacted] was a breach of the signed contract, the consequences of which led to the termination of their contract with the School.”

 The School’s contract, clause 16 at [25.1] outlines the requirements for the Student’s parents “…to provide the School with educational, medical, financial, or other information relating to the wellbeing of the Student as may be requested from time to time by the School.  If the Parents provide misleading information or fail to disclose information about the Student to the School, such that the School has to change or modify the level of Tuition or Accommodation required by the Student, The School may charge the Parents such fees as required to adequately compensate for such additional requirements.  For avoidance of doubt, the obligation to disclose information continues during the term of this Agreement and the Parents and Legal Guardians are obliged to notify the School in respect of any changing conditions in relation to the Student.”

84. Set out in the contract within clause 24 of Part two of the application form at [27.1] the application form discusses Conduct, Discipline and Termination, “In the event of any breach of this agreement by the Student or the Parents, the School may take any disciplinary step it considers appropriate, including terminating this Agreement…”
85. The Provider’s refund policy as set out in Schedule Three outlines ‘Where the Student’s enrolment is ended by the School’:

21.       In the event the Student’s enrolment is ended by the School for a breach of the Contract of Enrolment, the School will consider a request for a refund less:

a)         Any non-refundable fees set out in this policy

b)         Ten weeks tuition fee (one term)

c)         Any other reasonable costs that the School has incurred in ending the student’s enrolment.

85. The Student and the Student’s parents have signed Schedule three – Refund policy in the updated version of the application form.
86. From the submissions, the Provider has remarked “The contract signed by Ms [Redacted] and Mr [Redacted] clearly states the School is not required to provide any refund when a contract is terminated.  The contract signed by Ms [Redacted] and Mr [Redacted] was for one term/10 weeks’ tuition.”
87. “Although, not required to do so, the School acted in good faith and provided a full refund for the seven weeks of tuition that [Redacted] did not receive.  [Redacted] attended [Redacted] for three weeks so the tuition for this period was retained by the School.”
88. The jurisdiction of the International Student Contract Dispute Scheme is limited to financial or contractual matters as determined by the Education Act 1989.
89. In this regard the writer’s findings are as follows:
90. The Student and the Student’s parents did not disclose to/inform the Provider that [Redacted] had a history of anxiety as evidenced throughout the submissions and confirmed at [42].  The application form required the Student and the Student’s parents to  declare whether the Student had “any history of previous illness that may affect their enrolment, including mental illness?” as well as the requirement to disclose whether the Student was “currently on any medication” and a follow up note under this question that advises “Please note: If you suffer from conditions requiring medication, it is advisable to bring your own medication to NZ.  You will be required to notify the school regarding any medications that you bring with you”.  The Student nor the Student’s parents notified the Provider that [Redacted] had in her possession the medication, which was issued by her psychiatrist, Dr [Redacted] in March 2019.
91. There was also a general question around informing the school of “anything further that the school needs to be aware of that may impact the suitability of the student as an international student?”  The Student’s parents had an opportunity to disclose [Redacted]’s experience with anxiety at this point to allow the School to make an informed decision about how they could provide support for the Student in the event that she should become “symptomatic”.
92. The application form also required the Student to indicate if they do suffer or have suffered from any medical conditions, Depression/Anxiety was listed as one of the options.  The key phrase here in the context of this matter are the words “have suffered from any medical conditions” which included Depression/Anxiety. 
93. The Student’s parents have discussed that the Student did not have anxiety at “the precise time” of when the contract was signed in January 2019 and then the updated version in July 2019.  However, the application form required disclosure, as follows:
    1. Whether the Student does suffer from or have suffered from any of the listed medical conditions which included Depression/Anxiety at [4].
    2. Whether the Student was currently on any medication at [4]. 
    3. The requirement to notify the School regarding any medication in the Student’s possession during their time at the School at [4].
94. Based on the non-disclosure of the Student having experienced anxiety, being on medication when she arrived into NZ to attend the Program and non-notification to the Provider regarding the possession of Rivotril, the Provider invoked the provision within their Agreement terminating the contract at [40]. 
95. The Provider’s Disciplinary policy is set out in Schedule Two at [29].  At clause 2 it refers “Except in serious situations where immediate termination of the Agreement is necessary…the School will endeavour, where appropriate, to follow a two-stage disciplinary process.”  The letter issued by the Provider to the Student’s parent dated 31 July 2019 invoked the exception in determining the situation as a ‘serious situation where immediate termination of the Agreement is necessary’.  Referring to the Provider’s remark about the Student becoming symptomatic at [69.5] the decision was taken to terminate the contract with the Student being returned to her home “…no later than Friday, 9 August 2019”.  There was no invitation by the School to the Student’s parents to engage in discussions and work together to provide a solution that would allow for the Student to return to her home country whilst simultaneously taking into consideration the requirements of the Student’s parents who are based in [Country]:

• Could a conference call have been set up with the Student, the Provider and the Student’s parent or parents to discuss what the Student needed/wanted?
• Could alternative accommodation have been found for the Student even as a very short term option?
• Was returning the Student to her home country at short notice the only option available to the Provider?

96. In the submissions, The Student’s parents have referred to additional NZ legislation.  The writer has determined that this goes beyond the scope of what was required to address the matters pertaining to this adjudication.

Proposed Decision

97. The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint is partly upheld.

Refund of the paid tuition fees and Refund of the paid Student’s accommodation:

98. The Student’s parents had requested a full refund of the paid tuition fees and the Student’s accommodation as set out in the schedule provided at [61].  As evidenced above, it has been determined that the Student’s parents were in breach of the contract through the non-disclosure of information about the Student’s experience with anxiety as set out at [90] and [91].  As set out at [32] Schedule Three outlines ‘Non-refundable fees’ which includes as per the schedule provided at [61] Administration fee, Insurance, Accommodation Support fee, Used Homestay fees and Portion of unused Tuition fees.  Therefore, the refund credited to the Student’s parents bank account in October 2019 stands. 
99. The cost of the ‘return flight ticket purchased on 13 February 2019’ will not be reimbursed by the Provider as the Student’s parents would have incurred this cost.  Claim for the reimbursement of the original flight for the Student is dismissed.
100. Notwithstanding the proposed decision at [98] the Provider could have potentially offered the Student’s parents alternatives to the letter dated 31 July 2019 informing the Student’s parents “to organise travel arrangements for [Redacted] to return to home no later than Friday, 9 August 2019” and instead have engaged in discussions with the Student’s parents about what other options could have been available including the possibility of allowing the Student’s parents an opportunity to advise a date beyond 9 August 2019 taking into consideration the factor of time differences between the two countries.  On this basis, the Provider is to reimburse the Student’s parents the cost of the return flight from NZ to [Country] which was purchased on the 2 August 2019 for a departure date of 9 August 2019.  The cost of the flight to be reimbursed is €2,400.54.
101. Both parties now have a final opportunity to provide further submissions before a final decision from the International Student Contract Dispute Scheme is issued. 

Final determination

The final decision of the International Student Contract Dispute Resolution Scheme is as unchanged from the Proposed Decision.