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COVID-19 and students: the rights and wrongs

Posted on 16 October 2020

While young people are less severely affected by COVID-19 infection itself than other age groups, their lives have arguably been the most severely impacted. Schools and universities were closed for long periods in the first wave, GCSE and A-Level assessments and results were severely disrupted, primary and secondary school students are still experiencing disrupted education as a result of outbreaks in schools, and now university students frequently find themselves on campuses with high infection levels, limited face-to-face teaching and potentially long periods of self-isolation.

 Below we explore some of the rights and protections afforded to students, how they should be supported by their institutions especially in light of the significant fees they are paying and the time they have had to prepare for their arrival, and whether they really can be stopped from coming home.

What responsibilities do higher education institutions ("HEIs") have in managing COVID-19 infection risks?

HEIs must not act in a way that places students at risk of foreseeable harm. HEIs that fail to take reasonable steps to avoid the harm of COVID-19 infection on campus may be liable to students who can demonstrate that they became ill as a result. In the context of the pandemic, taking reasonable steps will primarily involve ensuring compliance with Government legal restrictions relevant at both national and local levels, and to relevant guidance. The Department for Education ("DFE") has issued guidance on reopening buildings and campuses ("Reopening Guidance"), which includes recommendations on enhanced cleaning measures, ensuring indoor areas have good ventilation, social distancing and the wearing of face coverings.

How should HEIs be supporting students' wellbeing?

Starting higher education, which is often a student's first experience of living away from home, can be a distressing, lonely and stressful period. Those risks can only increase when doing so in the midst of a global pandemic. It is generally considered that HEIs owe a duty of care to safeguard students' mental health and wellbeing, although the duty has never been tested in the courts. The DFE considers that HEIs have a duty of care to students which includes the provision of pastoral support and the responsibility to support students with mental health issues.

HEIs are expected by the DFE to facilitate students living in halls of residence or houses in multiple occupancy in being able to self-isolate if it is necessary for them to do so. Institutions and building managers of private halls are expected to design procedures to ensure self-isolating students can receive food and medicines and still have access to cooking and washing facilities. Further, institutions must not require students to vacate accommodation if the end of their rental agreement coincides with a period of required self-isolation.

What rights do students have in relation to the provision of their education?

While many staff members at HEIs will have worked hard to plan both in person and online learning, there will inevitably be a degree of disruption to students' education this academic year. In all but the most extreme circumstances, it is unlikely that HEIs could be found liable for failing to take reasonable steps to deliver an education in circumstances where in person teaching will need to be restricted because of public health restrictions.

The Office of Independent Adjudicator, the body tasked with running student complaints in the higher education sector, has made it clear that it cannot look at a complaint that online teaching was not as good as face-to-face learning; they will just look at whether the provider has acted reasonably in the circumstances.

There has been speculation that some HEIs have enticed students back to campus on the promise of face-to-face learning in order to benefit from the associated accommodation fees they would not otherwise receive, while at the same time reassuring worried staff that such face-to-face learning was never going to materialise. Many students are finding themselves stuck in rental accommodation while they could have stayed at home (potentially at no or much reduced cost) to receive learning online. If it were possible to demonstrate a HEI knowingly misled students about the nature of learning during this academic year, there may be potential financial remedies for those students via consumer protection legislation.

Can HEIs take disciplinary action against students for breaching COVID-19 laws and guidance?

Many HEIs have included breaches of COVID-19 legal requirements or guidance as examples of student disciplinary breaches for the 2020-21 academic year, including intentionally gathering in a large group, refusing to self-isolate when requested to do so and undermining the institution's social distancing guidelines. HEIs can, and likely will in some circumstances, take disciplinary action against students who flout COVID-19 legal rules and guidance. However, before any disciplinary action is taken against students the usual expectations for a fair investigation and hearing should be met and, in the current context, potential issues of discrimination and breach of human rights are likely to be particularly relevant.

Can students be lawfully prevented from leaving their accommodation or returning to their family homes?

With the recent press coverage of UK universities, such as Manchester Metropolitan University, 'locking down', there has naturally been much concern from students and parents around the question of whether students can be lawfully prevented by a HEI from leaving campus, for which the answer is unclear.

On the one hand, there is currently no law or regulation that explicitly gives HEIs the independent authority to detain its students by reason of the pandemic. HEIs have no legal authority to enforce the laws or regulations that relate to COVID-19 unless their authority is expressly provided for in the relevant legislation. It would therefore be unlawful for a HEI to encroach on the personal freedom of its students without being given explicit legal authority to do so.

However, on the other hand, the Government's most recent regulations indicate that there is potential for HEIs to be given the authority lawfully to prevent students from leaving their accommodation. The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (the "Regulations"), which came into force on 28 September 2020, introduced wide-ranging powers for persons authorised by local authorities to enforce self-isolation, subject to certain exceptions, on those who have tested positive for COVID-19 and their close contacts.

Broadly, the Regulations permit an authorised person to use reasonable force in directing a person who has tested positive for COVID-19 to return to the place where they are self-isolating.

In theory, this means that there is potential for local authorities to designate HEIs to act as officers with enforcement powers under the Regulations. However, the Regulations do not stipulate how a person may be designated as an officer of a local authority and who might be eligible. Furthermore, the Regulations only empower the officer to restrict the movements of individuals who have tested positive for COVID-19 or who have had close contact with someone who has tested positive for the virus.

In principle, the Government could introduce new legislation that specifically prevents students from leaving their university accommodation at the end of term and there has been further speculation this week that a two-week quarantine period might be applied at the end of term. However, the impracticalities of introducing this requirement are considerable: enforcement would be almost impossible and the public criticism which would undoubtedly flow from such a decision suggests that such a move is unlikely to materialise, but in these uncertain times we would not say that with a large amount of confidence.

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