Student’s enrolment was terminated due to non-attendance

Summary of Complaint

1. The Student, (Redacted), enrolled with (Redacted), in April 2019.
2. He enrolled in a (Redacted), (the diploma) course with (Redacted) and asked to be accepted as part of the April 2019 intake.
   1. (Redacted) confirmed in their further submissions that Mr (Redacted)’s total fees for the course were $9,560. Mr (Redacted) paid $5,060 for the first semester. The remaining fees of $4,500 (payable for the second semester were due to be paid in August 2019). However, I understand Mr (Redacted) was terminated prior to his second semester enrolment, and that no further fees were paid by him.
3. (Redacted) terminated Mr (Redacted)’s enrolment on 20 June 2019, stating Mr (Redacted) had failed to attend a minimum number of classes and had not provided sufficient reasons for his lack of attendance, contrary to his enrolment conditions. (Redacted) advised Mr (Redacted) that he was also not entitled to a refund, per its refund policy, because his enrolment was terminated.
4. I note Mr (Redacted) signed and returned several different forms acknowledging he was aware of the enrolment requirements and fee refund policy. Specifically, he signed an ‘enrolment form’, an ‘expression of interest form’ and a ‘Student Agreement form’ all of which advised Mr (Redacted) of (Redacted)’s refund policy. All three documents stated (Redacted) would not provide a refund of fees if a student’s enrolment was terminated by (Redacted).
5. (Redacted) has stated it considers Mr (Redacted)’s termination was reasonable and he is therefore not entitled to a refund. Further, (Redacted) considers it cannot reenrol Mr (Redacted).
6. Mr (Redacted) raised a complaint with the International Student Contract Dispute Resolution Scheme, stating he disagrees with (Redacted)’s decision.

Background

7. The issue in this dispute is whether (Redacted)’s decision to terminate Mr (Redacted)’s enrolment was justified, and whether Mr (Redacted) is entitled to a fee refund. Mr (Redacted), has provided no evidence, nor has he provided any submissions. (Redacted)’s posistion is that Mr (Redacted) did not attend classes, and he did not provide adequate reasons for his non-attendance. It terminated his enrolment on that basis. I have set out below a timeline of communication and other information, which was provided to me by (Redacted).
8. As above, Mr (Redacted) enrolled in the diploma at (Redacted) prior to April 2019. Based on the evidence provided to me, I understand Mr (Redacted) was due to start in the 1 April 2019 intake. However, Mr (Redacted)’s visa acceptance (from immigration NZ) was reportedly delayed.
9. It is important to reiterate that prior to beginning the diploma, Mr (Redacted) was provided with several forms relating to his enrolment, which he signed and returned. This included:
   1. A Student Agreement Letter; the letter set out that Mr (Redacted) agreed to abide by (Redacted)’s code of conduct, and with the rules of his immigration visa. That Mr (Redacted) agreed to attend all classes, unless he was prevented from attending by illness, and that he would complete all assessment and attendance requirements. The letter also stated Mr (Redacted) understood and accepted the condition of fee refunds set out in (Redacted)’s refund policy. Mr (Redacted) signed the Student Agreement Letter and returned it to (Redacted)
   2. Mr (Redacted) also signed and returned an Enrolment form and an Expression of Interest form, both of which set out (Redacted)’s fee refund policy (which included that a student would not receive a refund if their enrolment was terminated).
10. On 3 April 2019, (Redacted) wrote to Mr (Redacted) advising him that it was granting an “extension for the course”. The letter stated Mr (Redacted) was to report to (Redacted) by 9am on 15 April 2019.
11. I understand that between 19 and 28 April 2019, Mr (Redacted) was not required to attend class due to the Easter break. However, between 29 April and 6 May, Mr (Redacted) did not attend any of his required classes.
12. On 3 May 2019, Dr (Redacted) provided a medical certificate to Mr (Redacted), which stated he had been examined and was “medically unfit for work/school from 29 April 2019, and should be able to resume work/school on 6 May 2019.
13. I understand that in the week of 6 May 2019, Mr (Redacted) did not attend any classes.
14. On 7 May 2019, Ms (Redacted), business tutor and welfare support for (Redacted), wrote to Mr (Redacted)’s tutor and the (Redacted) admissions, about Mr (Redacted). She stated Mr (Redacted) had been to see her that day because he had been absent for the prior six days “due to back ache”. Ms (Redacted) stated Mr (Redacted) had told her that the doctor had sent him for an x-ray and advised him to rest for a further week. She wrote that she had made Mr (Redacted) aware of the attendance requirements for the module and the consequences of not meeting those requirements.
15. On 8 May 2019, Ms (Redacted), noted Mr (Redacted) was unwell and was not attending class. Ms (Redacted) then emailed Mr (Redacted) asking him to update her on his doctors appointment and for him to submit “all medical documents related to Mr (Redacted)’s illness”.
16. I understand that in the week of 13 May 2019, Mr (Redacted) attended school on only one and half days out of a required five.
17. On 16 May 2019, Mr (Redacted)’s tutor wrote to Ms (Redacted) stating Mr (Redacted) was absent that day, and late the day before. Ms (Redacted) wrote to the tutor stating she had spoken to Mr (Redacted) and advised him that he needed to regularly attend class. She added that Mr (Redacted) understood “the consequences of non-attendance”.
18. On 17 May 2019, Mr (Redacted) emailed ‘(Redacted)’ at (Redacted) stating he could not attend school that day. He wrote that he could not attend due to “personal health problem”. He stated he could not explain this within his email, but he would explain the following Monday and would also provide, “reports and medicines”. He asked Mr (Redacted) to understand his situation because he was suffering from a “huge situation” and that was why he had not attended for “many days”.
19. Ms (Redacted) emailed Mr (Redacted) the same day, stating she hoped he was feeling better and to ensure he went to see her the following Monday, 20 May.
20. On 20 May 2019, Ms (Redacted) noted Mr (Redacted) had emailed on 17 May stating he had health issues and would go to school on the following Monday to discuss. I understand Ms (Redacted) had tried to conact Mr (Redacted), but he had not answered his phone. Ms (Redacted) emailed Mr (Redacted) stating (Redacted) was concerned, and asked him to contact her as soon as possible. She stated in the email that Mr (Redacted)’s phone number was not contactable.
21. In the week beginning 20 May 2019, Mr (Redacted) reportedly missed class on 20 May, and only attended twice that week, missing three days. I understand that On 24 May 2019, Ms (Redacted) and Ms (Redacted) met with Ms (Redacted) to discuss his non-attendance. I was not provided with a specific record of this meeting, but Ms (Redacted) noted it in her submissions. I understand that during this meeting Mr (Redacted) told Ms (Redacted) and Ms (Redacted) that he was taking insulin for diabetes and that this was causing his back ache. Ms (Redacted) stated Mr (Redacted) had not mentioned that he had diabetes when he applied for his student visa and that the insurance was not aware of his condition (I note (Redacted) requires all students to have insurance as part of enrolment). During the meeting, Mr (Redacted) reportedly told Ms (Redacted) / Ms (Redacted) that he had been to see a doctor in Rotorua, and that the doctor assurred him the diagnosis of diabetes would not be put on his record.
22. Ms (Redacted) and Ms (Redacted)’s evidence was that they again advised Mr (Redacted) about his hig non-attendance and that if it continued he would be asked to leave the college, per its “policy”.
23. The following week, beginning 27 May, Mr (Redacted) reportedly attend three out of five days of class. The week of 3 June, Mr (Redacted) attended one and half days, but missed two and half days of scheduled class time.
24. On 7 June 2019, Mr (Redacted)’s tutor wrote to Ms (Redacted) noting Mr (Redacted) had again been absent. He stated Mr (Redacted) had not provided any information explaining why he was not at school, and asked Ms (Redacted) to look into why Mr (Redacted) had not been attending.
25. Mr (Redacted) did not attend any classes during the week of 10 June 2019.
26. On 10 June 2019, Ms (Redacted) emailed Mr (Redacted) stating (Redacted) was concerned about his lack of attendance. She stated she had called Mr (Redacted), but that he had not answered his phone.
27. On 11 June 2019, Mr (Redacted) text Ms (Redacted) stating he was feeling better and would attend class the following day. I understand Mr (Redacted) did not attend class on 12 June, despite being called and being sent a text message.
28. On 13 June 2019, Ms (Redacted) reportedly attempted to contact Mr (Redacted) without success. The same day, Ms (Redacted) emailed other staff members at (Redacted) stating Mr (Redacted) had not been attending classes. She stated he had sent one text stating he would attend class, but did not attend as he said he would. She noted Mr (Redacted) had “mentioned a medical condition” and that he was advised to see a doctor, but that he had not, at that time, seen a doctor. Ms (Redacted) wrote:

“(Redacted) started classes on 18April 2019 and has attended very few days. He is already on 24 days of non-attendance with only one medical certifiate on record for about 4 days. In this instance he visited the doctor late”

29. On 14 June 2019, Ms (Redacted) emailed Mr (Redacted) stating that she had tried to call, but his phone was switched off, and (Redacted) had received no information regarding why he had not been attending school. She asked Mr (Redacted) to reply as soon as possible.
30. On 14 June 2019, Ms (Redacted) called the NZ Police to request that the Police conduct a ‘welfare check’ on Mr (Redacted) because no one at (Redacted) had heard from Mr (Redacted). Ms (Redacted) stated she had called him several times, without reply. (Redacted) at the NZ Police confirmed Ms (Redacted) did request a welfare check and I understand the Police did visit Mr (Redacted).
31. The same day (14 June) Ms (Redacted) also emailed (Redacted), busines relationship manager at (Redacted), advising Mr (Redacted) had “attended 9 days in eight weeks as per enrolpro records”. She stated Mr (Redacted) was not an “identified at risk student”, and that she had met with Mr (Redacted) on 4 June, and at that time he had not been to see a doctor. She advised Ms (Redacted) that she had asked the Police to conduct a welfare check, and that the Police had recommended she contact local hospital to ask whether he had been admitted to hospital. Ms (Redacted) stated she had called the local hospitals and there was no record of Mr (Redacted) being admitted.
32. Mr (Redacted) did not attend any classes during the week of 17 June 2019.
33. On 17 June 2019, Ms (Redacted) emailed other staff at (Redacted) to advise that because she had not heard from Mr (Redacted) the previous week, apart from one text, she had asked the Police to perform a welfare check. She stated Mr (Redacted) had text her that morning (the 17^th) which stated he was ok. She wrote that she had spoken to Mr (Redacted) who had told her he was “fine” and would attend class the following day. She stated that Mr (Redacted) had advised that he had not seen a doctor and had called for medicine from India, because he considered New Zealand doctors could not cure him. She noted the Police had performed the welfare check and that they reported Mr (Redacted) was ok. She stated she had asked Mr (Redacted) to provide all medical documents relating to his illness and that she would be speaking with him further the following day.
34. The same day (17 June) Mr (Redacted) emailed Ms (Redacted) stating that he now “felt good”, but that he would “continue college tomorrow”.
35. Ms (Redacted) responded to Mr (Redacted)’s email asking Mr (Redacted) to provide “all medical documents pertaining to [his] illness in the past few days”. She advised Mr (Redacted) that he had attended “very few days of college in the last eight weeks”, and that she was unable to contact him because his phone was not on. She stated in her email:

“your non-attendance is very high on a student visa and there has been a breach (Redacted) attendance policy. Please meet me tomorrow when you join back”.

36. On 18 June 2019, Mr (Redacted) text Ms (Redacted), asking if he could call her later. I understand Mr (Redacted) did not call Ms (Redacted).
37. On 18 June 2019, Ms (Redacted) wrote a formal letter to Mr (Redacted) advising him that the letter served as a “final warning” about his non-attendance. The letter stated he had had 28 days of non-attendance and that (Redacted) had explained the requirements of attendance to Mr (Redacted). The letter stated that if Mr (Redacted)’s non-attendance was due to an illness then he was required to provide evidence of the illness. The letter also stated Mr (Redacted) regularly arrived to school late and left early when he did attend and that was having a negative effect on his overall attendance. The letter stated the following points:
    1. Mr (Redacted) had breached the Student Code of Conduct by failing to inform (Redacted) of his non-attendance when he did not attend.
    2. It stated the code of conduct required students to telephone (Redacted) before 9am on the day they were unable to attend, and to leave a message explaining they would not be attending.
    3. The letter stated Mr (Redacted) had failied to comply with the code, and that he had failed to attend his programme of study (the diploma) to the standard set in the “Student Attendance Policy and Procedure”.
    4. That Mr (Redacted) had failed to provide a copy of his student visa “despite repeated reminders”.
    5. That Mr (Redacted) was required, but failed, to visit a doctor and was required, but failed, to produce medical certificates which showed he was unable to attend class due to illness.
    6. That Mr (Redacted) had failed to respond or communicate with (Redacted) regarding his non-attendance.
    7. The letter stated Mr (Redacted) had failed to attend school that week, despite telling Police (during the welfare check) and Ms (Redacted) that he would attend school that week.
    8. The letter then advised Mr (Redacted) that he was required to attend a disiplinary meeting on 20 June 2019 at 12.30 to discuss his non-attendance.
38. On 19 June 2019, Mr (Redacted)’s course tutor wrote to Ms (Redacted), (Redacted) administrator, and advised her that Mr (Redacted) had not been attending classes. The tutor wrote that Mr (Redacted) had not been attending classes for several weeks, had missed the entire “(Redacted) paper” and had not submitted any of his assignments, except one. However, Mr (Redacted) had failed the assignment he submitted.
39. I understand Mr (Redacted) did attend the disicplinary meeting on 20 June. The same day (20 June 2019) Ms (Redacted) wrote to Mr (Redacted) advising him that (Redacted) had decided to terminate his enrolment. The letter stated he had been terminated because:
    1. Mr (Redacted) had failed to abide by the Student Code of Conduct and Attendance Policy.
    2. Mr (Redacted) had failed to inform (Redacted) of why he was unable to attend classes. That he had failed to adequately inform (Redacted) of any illness preventing him from attending. Further, that after he did advise (Redacted) of an illness, he had failed to provide medical evidence showing he was unable to attend because of the illness.
    3. (Redacted)’s decision reiterated that Immigration NZ expects student visa holders to attend their place of study at all times, unless there is a genuine reason for non-attendance. (Redacted) stated Mr (Redacted)’s non-attendance was “very high” and had not been explained.
    4. The letter alleged Mr (Redacted) had also provided misleading information. The letter stated Mr (Redacted) had told (Redacted) that he needed medication from his home country, but had then provided prescription invoices from medication bought in New Zealand.
    5. (Redacted) stated its attendance policy required Mr (Redacted) to attend classes and to make satisfactory academic progress. It stated Mr (Redacted)’s non-attendance was very high and he had failed to submit assignments.
    6. On this basis, (Redacted) terminated Mr (Redacted)’s enrolment.
40. On 21 June 2019, Mr (Redacted) and Ms (Redacted) exchanged a number of emails regarding his termination:
    1. On 21 June 2019, Dr (Redacted) provided Mr (Redacted) with a medical certificate which stated Dr (Redacted) had examined Mr (Redacted) that day, and he was medically unfit for work/school from 10 June 2019, and should be able to resume work/school on 20 June 2019.
    2. I note two (NZ) prescription receipts were also provided to me, which showed Mr (Redacted) had been prescribed medication and pain relief in June 2018, and June 2019 by Dr (Redacted), a GP at (Redacted) clinic in Tauranga.
    3. The same day, Mr (Redacted) emailed (Redacted) with a copy of the medical certificate from Dr (Redacted).
    4. Ms (Redacted) responed, stating:                 

“Hi (Redacted), its too late to submit a medical certficate now. You should have visited the doctor when you were ill. A decision has been taken on your enrolment yesterday and communicated to you as well”.

40. 5. After Mr (Redacted) responded asking Ms (Redacted) what he should do, she advised him to refer to (Redacted)’s decision to terminate his enrolment which she stated had been sent to him the previous day. Mr (Redacted) emailed back stating that he would write to the (Redacted)’s CEO and would ask for “appeal of last chance”.
41. I understand Mr (Redacted) did email (Redacted)’s CEO, although I was not provided with the email. On 24 June 2019, (Redacted)’s CEO reportedly replied to Mr (Redacted) advising that he had reviewed the case and would not reverse (Redacted)’s decision. Mr (Redacted) then provided the 21 June medical certificate the CEO advised he would therefore look into the matter again.
42. On 25 July 2019, the CEO reportedly wrote to Mr (Redacted) again advising that he would not reverse (Redacted)’s decision to terminate.
43. I understand Mr (Redacted) then met with the CEO on 12 August. Mr (Redacted) reportedly advised the CEO that he had an illness. The CEO stated he would look at Mr (Redacted)’s academic performance and would consider whether that might justify re-enrolment.
44. I understand the CEO then wrote to Mr (Redacted)’s tutor, who informed the CEO that Mr (Redacted) had failed his modules, including an assessment Mr (Redacted) submitted after he was terminated on 20 June.
45. I understand the CEO wrote to Mr (Redacted) on 15 August 2019, advising him that (Redacted)’s decision to terminate his enrolment remained unchanged.
46.   On 10 June 2019[1], Ms (Redacted) text Mr (Redacted) about his nonattendance. The text read:

“Hi (Redacted), hope you are fine. Please call back as we at (Redacted) are concerned. You have not been attending college and not answering phone calls. (Redacted)”.

47. On 11 June 2019[2], Mr (Redacted) text Ms (Redacted) stating that he would not be attending school that day and would also not attend the following day. His text message stated:

“Hi Mam, Im good now from yesterday. But I will not coming today also because I take rest for one day more and I will continue from tomorrow mam. Please try to understand my situation (Redacted) mam. Im really very sorry”.

48. I understand Ms (Redacted) called Mr (Redacted) after receiving the text, but he did not answer. Ms (Redacted) then text Mr (Redacted) asking him to call her back.
49. On 12 June 2019[3], Ms (Redacted) text Mr (Redacted) stating she had called but the call went straight to voicemail. She asked him to call her back, because she was concerned as he had not attended school again.

Positions of the parties

Provider

50. (Redacted)’s position is that its decision to terminate Mr (Redacted)’s enrollment was justified. ((Redacted) stated it provided Mr (Redacted) with multiple opportunities to explain his non attendance, but his engagement was sporadic. It considers Mr (Redacted) did not comply with the Student Code of Conduct in that he did not attend classes, and did not provide evidence which adequately explains his non attendance. Further, its position is that Mr (Redacted) is not entitled to a fee refund because its refund policy makes it clear that if a student is terminated that student is not entitled to a refund.
51. (Redacted) submitted Mr (Redacted) was provided with the fee refund policy, the Code of Conduct and with its attendance policy, and that he was fully aware of the requirements.
52. Ms (Redacted) and Ms (Redacted) provided written submissions, including a very thorough timeline of events and Mr (Redacted)’s attendance record which showed Mr (Redacted)’s lack of attendnace. They stated:

(Redacted)attended college for Nine days in Nine weeks (18th April 2019-20th June 2019)

Mr (Redacted)

53. I provided Mr (Redacted) with ample time to engage with both a mediation process and with this adjudication process. Despite being provided with very clear instructions on when he was to provide submissions and evidence, Mr (Redacted) has to date, provided no submissions or evidence. Further, I have received no communication from him.

Applicable Law

54. 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.”

Determination

55. The question to be determined in this dispute is whether:
    1.  Mr (Redacted) is entitled to a refund of the course fees paid despite his enrolment being terminated.
56. This means that the various statutory provisions below, while not being prescriptive, are relevant.

57. The obligations of providers are clearly set out in the Education Act 1989 and in other supporting legislation, including the Education (Pastoral Care of International Students) Code of Practice 2016, Education (Refund Requirements for International Students) Notice 2012 and the Student Fee Protection Rules 2013.

58. The effect of these is that students are entitled to refunds of fees paid in specific situations, including those specified in Section 30 of the Code of Practice. In summary, section 30 states that a provider’s refund policy must be “reasonable”, and “in accordance with legal requirements”. It also states a provider must inform students of the policy, and that the policy must explain the refund conditions of the education provide; in this case (Redacted).
59. As above, Mr (Redacted) has provided no evidence, no submissions and has not engaged with this process.
60. I have read the submissions and evidence provided by (Redacted), and I consider they have shown their actions to be entirely reasonable, and justified. I consider (Redacted)’s refund policy is in accordance with the law and I consider (Redacted) did adequately advise Mr (Redacted) of the policy.
61. Further, I consider (Redacted)’s decision to terminate Mr (Redacted)’s enrollment was justified and reasonable. Further, I note (Redacted) conducted its own internal review, and following that review upheld its decision to terminate. I consider this suggests (Redacted) has engaged in good faith with Mr (Redacted).
62. I consider the evidence provided to me shows a clear pattern of non-attendance by Mr (Redacted). I consider the evidence shows Mr (Redacted) exhibited a lack of communication with (Redacted) regarding why he was not attending. He also provided no reliable medical evidence to justify his non-attendance.
63. I note Mr (Redacted) did provide (Redacted) with two medical certificates. However, these medical certificates provide no detail regarding Mr (Redacted)’s illness, and more importantly, they do not explain the extent of his non-attendance. I also note that the medical certificate provided by Mr (Redacted) on 21 June  2019, was only obtained after he was already terminated by (Redacted).
64. I find the evidence before me shows Mr (Redacted) was advised by (Redacted) on many occasions that his attendance was low and that he needed to explain his non-attendance and needed to begin attending class. I see no evidence that Mr (Redacted) did adequately communicate with (Redacted) about his non-attendance. Further, I note his attendance continued to be very low. I also consider it is relevant that on the times he did communicate with (Redacted), he provided no real reasoning to explain why he could not attend. I note too that he told Ms (Redacted) on several occasions that he would speak with her, and would attend class, but I consider the evidence shows he did not follow through.
65. I consider Mr (Redacted) is not entitled to a refund of his fees. I accept Mr (Redacted) was provided with clear communication regarding (Redacted)’s refund policy. The policy states the student is not entitled to a refund if his enrolment is terminated (and I consider the termination was justified). I note the refund policy is clearly stated on the ‘Expresison of Interest’ form, the ‘Enrolment’ form, and on the ‘Student Agreement’ form, all of which were signed and retuned by Mr (Redacted).
66. As above, I consider (Redacted)’s refund policy is in accordance with the law, and I consider (Redacted)’s decision to not provide a refund is therefore justified.
67. To conclude, I consider the evidence provided to me shows a clear pattern of non-attendance which I accept is a breach of (Redacted)’s policies. I consider (Redacted)’s decision to terminate Mr (Redacted)’s enrolment was accordinly justified. Further, I consider Mr (Redacted) is not entitled to a refund.

(REDACTED)’S further submissions

68. On 3 August 2020, Ms (Redacted) provided further submissions in response to my proposed decision. The submissions pointed out that the fees for the course Mr (Redacted) had enrolled in was $9,560.00. Mr (Redacted) paid $5,060.00. The remaining $4,500.00 was not paid because Mr (Redacted) was terminated before the remainder was due.
69. Ms (Redacted) also highlighted the correct dates of the text messages sent to Mr (Redacted) – above in paragraphs 46 – 49.

Mr (Redacted)

70. Mr (Redacted) was provided with my proposed decision. However, to date I have received no further communication from him.

Outcome

71. My final decision of the International Student Contract Dispute Scheme is that Mr (Redacted)’s complaint is not upheld. (Redacted)’s decision to terminate enrolment was justified and reasonable and Mr (Redacted) is not entitled to a refund because (Redacted)’s fee refund policy, which Mr (Redacted) agreed to, states he is not entitled to a refund if his enrolment is terminated (and again I consider the policy is lawful).