Summary of Complaint

  1. Mr [Student Name] (The Student) wanted to complete a [Programme].
  2. The Student enrolled in [PROGRAMME] with [REDACTED] campus which was under [REDACTED] on 11 January 2018.
  3. The [PROGRAMME] was offered over a 3-year period starting 18 February 2018 to be completed 28 November 2020.
  4. In February 2018, [REDACTED] was incorporated into [REDACTED], the Provider and all students enrolled in [REDACTED] Programmes were transferred to [REDACTED] in February 2018.
  5. The Student was given an offer of place for the 2018 year and conditional offers of place for 2019 year and 2020 year by [REDACTED] and on 19th March 2018 commenced study.
  6. In November 2018, the Student was informed by the Provider that [REDACTED] was discontinuing the [PROGRAMME] at the Christchurch [REDACTED] campus. The Student agreed to transfer to [REDACTED] Auckland campus.
  7. In November 2019, the Provider notified the Student that [REDACTED] Auckland was discontinuing the [PROGRAMME] from 2020 onwards. The Student agreed to transfer to [REDACTED] Christchurch campus.
  8. On 9 December 2019 the Student emailed the Provider requesting that the Provider cover his  fees, travelling expenses and six months living expenses.
  9. The Provider in a letter to the Student dated 18 December 2019 offered $1,000 towards flights and/or relocation costs.
  10. On 28 January 2020, the Student raised a complaint with the International Student Contract Dispute Resolution Scheme.
  11. The Student was referred to the Provider’s Internal Complaint Process and Appeal Process however the Provider states the:
  • “Student received direct guidance and copies of [REDACTED]’s policy surrounding student complaints and the appeals process, and yet he still did not follow this guidance.”
  1. The Complaint received by International Student Contract Dispute Resolution Scheme on 28 January 2020 was closed after four months due to lack of contact from the Student.
  2. On 10 June 2020, the Student raised another complaint with the International Student Contract Dispute Resolution Scheme.
  3. On 17 June 2020 the Student declined the Providers offer of $1,000 advising “this is not the right amount of money”.
  4. The Student and the Provider were unable to resolve this issue at facilitation and the matter was Deadlocked on 29 June 2020 and proceeded to adjudication.

Background

  1. The following sequence of events in this matter is a summary of the Student and the Provider’s submissions to the International Student Contract Dispute Resolution Scheme. All submissions have been considered whether they are mentioned or not.
  1. The Student states “I did a deep research about all the [REDACTED] schools in New Zealand and found that [REDACTED] would be the best [REDACTED] school for me.” The Student submits that he chose to study in the Christchurch campus as his friends were in Christchurch and it would be easy to settle in there.
  1. On 22 August 2017, the Student was interviewed by [Name] from [REDACTED] and consequently received an offer of place on 11 January 2018 for the [PROGRAMME] at the [REDACTED] Christchurch [REDACTED] campus.
  1. Although no evidence was provided by the Student or Provider, both parties agree that  in February 2018, [REDACTED] was incorporated into [REDACTED]. The Provider submits that at the time of transfer “[REDACTED] had previously informed [REDACTED] that the [Programme] was only offered in Auckland, not Christchurch, where only the New Zealand Diplomas [REDACTED] Levels 5 and 6 were available.”
  1. Subsequently the Student was given an offer of place at [REDACTED] for the 2018 year and conditional offers of place for 2019 year and 2020 year and was part of the [REDACTED] cohort.
  2. The student states “I had no problem with it as I was only concerned about [REDACTED]”.
  3. The offer letters detail the location of study as “Christchurch Campus”. The Student argues the Provider issued a conditional letter for Level 6 and 7 but didn’t advise what the conditions were before providing the offer letter. I notice however that in the 2019 and 2020 conditional offer letters provided by the Student the following is stated:
  • “This is ONLY a conditional offer of placement: - see condition below that must be met before forwarding application to Immigration New Zealand.
  • Additional conditions: Offer conditional on student successfully completing year 2 of the degree.”
  1. The offer letter and conditional offer letters are not dated or signed, and it is unclear when they were received by the Student.
  2. The full course fees in the 2018 offer letter amount to $19,500. The 2019 conditional offer letter details the course fees as $10,000 and the 2020 conditional offer letter details the course fees as $18,000. The Student has provided a receipt of the foreign currency exchange dated 8 February 2019 in the amount of $10,042 and a receipt dated 28 February 2020 for $14,705, however the Student has not provided detail of what these receipts relate to. My understanding is there is no dispute between the parties and that the tuition fees were paid.
  3. Both parties indicate in their submissions that in 2020 the Student paid an amount of $6,250 to [REDACTED] for the five papers he failed in 2019.
  4. In March 2018, the Student began his studies. The Provider submitted that the Student signed the Enrolment Contract on 19 March 2018. This document has not been provided by either party.
  5. The Student completed his 1st year of study with the below results; passing all subjects

         [REDACTED]

  1. The Provider submits that they reviewed the viability of continuing the [PROGRAMME] in Christchurch throughout 2018 and it was decided to discontinue the degree at Christchurch. On 17 October 2018 the Student applied for Year 2 of the [PROGRAMME] and a Conditional offer of Place was issued to the Student on 19 October 2018. The Student argues that he never received the Conditional Offer of Place. This letter was not provided by either party therefore  I am unable to comment further.
  1. Both parties submit that in November 2018 the Student was informed by the Provider that [REDACTED] was discontinuing the [PROGRAMME] at the Christchurch [REDACTED] campus. In an email from [Name] to the Student dated 3 December 2018, [REDACTED] advises “[REDACTED] is also committed and obliged to allow you to have the opportunity to complete your aspirations towards a full bachelor’s degree, pending successful completion of pre-required [REDACTED] Level 5 and 6 courses.”

The Provider offered the Student the following options:

  • Continuing with the New Zealand Diploma in [PROGRAMME] (level 6) in Christchurch [REDACTED] campus or “through a colaboration with [REDACTED], the option to remain in the Canterbury region would allow you to complete a Bachelor in [PROGRAMME].”
  • Continue studying for the [PROGRAMME] and transfer to the [REDACTED] Auckland campus or
  • Transfer to Invercargill to complete the Bachelor of [PROGRAMME], or double degree with the Bachelor of [PROGRAMME] with 2 years free shared accomodation.
  1. Both parties have submitted an email exchange between the Auckland and Christchurch campus staff confirming that the Student was transferring to Auckland for Level 6 and 7 of the [PROGRAMME]. The email dated 17 January 2019 references an attachment of the Student’s enrolment form “indicating Auckland as his preferred option” and requesting a “new letter of offer for Auckland be provided to the Student. The email then requests “Can you please provide [NAME] with accommodation info and the appropriate support in terms of the transition to Auckland”.
  2. The Student states in his submissions “I would love to know what accommodation option is [REDACTED] talking about in Auckland as I was not told anything before I came to Auckland.” No Enrolment form has been provided by either party.
  3. The Student’s submissions state that relocating to Auckland caused him significant stress as he struggled to find accommodation, shifting accommodation three times in 2019 and struggled to find a part time job. He claims as a result of this he “only passed 3 out of 8 papers.” He also submits that by having to relocate [REDACTED] have financially disadvantaged him twice.
  4. The Student also submits that he “assumed that the pattern of study and connecting to the students will be the same as Christchurch…but I was totally opposite.” The Student advises there were less access to tutors and as there was no connecting (Facebook) medium to students as there was in Christchurch where classes uploaded activities if you were unable to attend class. He didn’t know what was going on in class and this contributed to his lack of attendance and only passing 3 subjects.

“instead of leaving NZ with a degree I can only afford to complete my diploma.”

  1. The Provider submits that when they investigated the Student’s claim, part of which was [REDACTED] didn’t keep in touch with the Student when he moved to Auckland, they found evidence showing [REDACTED] supported the Student. This evidence was not provided. Both the Student and Provider reference written warnings about the Student’s performance however neither party has provided the International Contract Student Dispute Resolution Scheme with these warnings.
  2. In 2019 The Student failed five papers and passed three papers. The Student provides a letter from [REDACTED] to Immigration New Zealand dated 12 May 2020 outlining his 2018 and 2019 results. His attendance is recorded as 47.1%.
  3. The Student and Provider acknowledge in their submissions that the Student found the move to Auckland challenging which affected his attendance and performance.
  4. Both parties in their submissions note that in November 2019 the Provider spoke with the Student that [REDACTED] Auckland was discontinuing the [PROGRAMME] from 2020 onwards.
  5. The Provider submissions dated 5 August 2020 are that they offered the Student the option of relocating to Christchurch to complete level 6 New Zealand Diploma in [PROGRAMME] or relocating to [REDACTED] to complete a full degree in [PROGRAMME] with two years free shared accommodation. A further option would be to transfer to [REDACTED] to complete his Programme however [REDACTED] did not extend an offer of place to the Student. The Student also states “I had no intentions of going to [REDACTED].”
  6. The Student chose to relocate back to Christchurch.
  7. In an email to [NAME], [REDACTED]’s Chief Executive on 4 December 2019, the Student expresses the challenges he faced financially and mentally and how this has affected his studies.
  8. Further, the Student requests [REDACTED] to fulfil his “demands” of paying the remaining fees, relocation costs and living expences.

“I want to make something very clear that I am not going to transfer myself to [REDACTED] or [REDACTED]. And if I am forced to go to Christchurch I have these demand which needs to be fulfilled by the [REDACTED]

Firstly remaining fee has to be paid by [REDACTED]

Secondly my travelling expense

Thirdly my six month living expense to be paid as currently I am not in a state to shift myself

I feel like if [REDACTED] is willing to pay all these things I will be able to shift to Christchurch”.

  1. The Provider submits:
  • “Unfortunately, [NAME] didn’t settle well into Auckland and he had constant issues with attendance and performance. He had plenty of pastoral support from staff including [NAME], [NAME] (student support), the student counsellor at [REDACTED] and [NAME] (PM) and his tutors.”
  • “[NAME] has been in constant touch with the [REDACTED] team as we can see from the warning letters recorded in [REDACTED]. The teaching staff have spoken to [NAME] many times prior to the warning letters being issued so if there was a pastoral care issue regarding depression or mental health this would have been flagged to us”.
  • They note two warning letters (not provided) regarding attendance were issued to the Student on 20 May and 25 July 2019 as well as a meeting with the Student and [NAME] on 25 June 2019 about changing papers.
  1. On 18 December 2019, in response to the Student’s emails dated 4 and 9 December 2019 where the Student outlines his struggles
  • “This year in Auckland has been very challenging for me not only financially but mentally also. I feel kind of depressed and has effected my studies a lot.”
  • [NAME] issued the Student a letter offering on compassionate grounds, an amount of $1,000 to support the Student with costs relating to flights and/or relocation costs.
  1. The Student was asked in the letter to confirm agreement to the offer by providing their bank account details. The Student was also offered the opportunity to appeal this decision.
  2. On 4 February 2020 by email the Provider advised the International Student Contract Dispute Resolution Scheme that the Student had not appealed the decision to offer $1,000 towards relocation and/or flights made on 18 December 2019.
  3. The Student has submitted an Enrolment Contract signed 9 March 2020 by the Student and Provider on 8 April 2020. The signed Enrolment Contract provided shows a clear start and finish date for the 2020 academic year and contains a “Declaration” section. The Declaration states:
  • “1. I understand that this enrolment is conditional upon my achieving the necessary pre-requisites for entry to this level/stage of the Programme
  • 2. I have read and understood and accepted the terms and conditions relating to [REDACTED] Policies…
  • 5. I have read and accept the information regarding the Privacy Act Provisions and the Refund/Withdrawal Policy of [REDACTED] as described on the [REDACTED] website….

No reference to the campus location is in the contract.

  1. On 17 June 2020 The Student emailed the Provider declining the offer of $1,000 as “is not the right amount of money for relocation as I have relocated twice and was not provided with any financial help in the past.”
  2. The Provider states that the Student has been provided with the formal complaint policy and appeals process and has been given extentions of timeframes however he has not completed the appeal process to date; “[REDACTED] could have chosen not to commence and withdraw from this adjudication process based on [NAME] not adhering to the above Procedures, but we have chosen to continue based on actual facts and good faith.”
  3. The Student and the Provider were unable to resolve this issue and the matter was Deadlocked on 29 June 2020 and proceeded to adjudication.

Student’s Position

  1. The Students submissions to the International Contract Dispute Resolution Scheme are dated 29 July 2020 and 5 August 2020.
  2. Through reviewing the Student’s submissions and documents I have understood the following as their position.
  3. The Student chose to study in Christchurch as “my friends were in Christchurch and it would be easy for me with locating myself without any problem” He planned to live in Christchurch for the duration of the [PROGRAMME] degree, three years.
  4. The Student submits he faced several challenges due to being “forced” by the Provider to relocate from Christchurch to Auckland and then Auckland to Christchurch. The challenges included finding accommodation, employment, and a different style of teaching all of which affected his learning and ultimately led to him failing five papers.
  5. Further the student believes that because the Provider gave no support and no contact to him throughout 2019 this also contributed to him failing five papers in 2019.
  6. In December 2019, the Student requested the following from the Provider:
  • “If I am being forced to go to Christchurch I have these demands which needs to be fulfilled by the [REDACTED]
  • Firstly, remaining fee has to be paid by [REDACTED]
  • Secondly my travelling expense to be paid as currently I am not in a state to shift myself
  • I feel like if [REDACTED] is willing to pay all these things I will be able to shift to Christchurch”
  1. Further the Student requests in his submissions received on 29 July 2020 “I need some extra for the the trouble they have given me plus the efforts I have to put in to relocating myself twice.
  2. The Student provides the amount of the “remaining fee” as $6,250
  3. No amount has been submitted by the Student for the relocation costs, six months living costs or “something extra.”

The Provider’s position

  1. The Provider’s submissions to the International Contract Dispute Resolution Scheme are dated 28 July 2020 and 5th August 2020 and summarised below.
  2. The Providers position is that “all Programmes are offered are subject to review and changes and students are enrolled on an annual basis.”
    1. The Provider offered the Student several alternative study options on each occasion the [PROGRAMME] was cancelled.
    2. It was the Student’s choice to transfer from Christchurch to Auckland in 2018 and 2019 from Auckland to Christchurch.
    3. The Student “has never been able to fully justify his record”. In 2019 the Student had a poor attendance rate of 47.1% and failed five papers out of eight in 2019. As such he was not offered a place in [REDACTED] Programme. If the Student was able to transfer to [REDACTED] the Provider argues he would not have had to transfer to Christchurch  thus preventing further costs and personal challenges.
    4. The Provider determined the Student’s reasoning behind failing five papers (accommodation issues, employment issues, no contact from [REDACTED] while in Auckland)  as being largely unfoundered when investigated.
  3. The Provider submits that they provided over and above pastoral care for the Student and contrary to the Student’s accusations had multiple meetings and issued 2 warning letters regarding absence. Further they are “unable to offer a refund of fees for personal failure, which is consistent with tertiary education standards in New Zealand.”
  4. Further they advise the Student was given the guidelines and policy around their formal complaint process which the Student did not follow. They explain “[REDACTED] could have chosen not to commence and withdraw from this adjudication process based on [NAME] not adhering to the above Procedures, but we have chosen to continue based on actual facts and good faith.”
  5. On compassionate grounds the Provider offered $1,000 to the Student for relocation costs and are continuing to support the student in their studies in 2020.
  6. They conclude that they have done more than enough in meeting the Student’s needs.

Discussion

  1. The questions which the International Student Contract Dispute Resolution Scheme must determine:
  • Does the enrolment contract signed 2018 between the Provider and the Student obligate the Provider to provide the [PROGRAMME] in Christchurch?
  • Has there been a breach of the enrolment contract signed in 2018 between the Provider and Student and if so, is the Student then entitled to a refund of the relocation costs, six months living costs and refund of the tuition fees for the five failed papers in 2019?
  1. To determine whether the Student should be paid a refund of  relocation costs, six months living costs and a refund of the tuition fees for the five failed papers in 2019 consideration must be given to the relevant statutory and contractual obligations on the Provider relating to refunds. Consideration must also be given to the facts and information provided by the Student and the Provider.
  2. Section 9 of the International Student Contract Dispute Resolution Scheme Rules 2016 state 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.”
  3. The Student has provided the 2018 “Offer of Place to an International Student” as well as “Conditional Offer of Place to an international Student” for 2019 and 2020. Neither document is signed and dated so it is unclear when they were received by the Student. In (20) the Student has not provided any comment on these documents. The Student states in their submissions “Where I planned to live for three years in Christchurch, I was now forced to relocate to complete my degree without any compensation” based on the submissions received the writer infers from this that the Student believes that because the Offer of Place and Conditional Offer of Place shows the location as Christchurch campus, they  expected the [PROGRAMME] to remain in Christchurch .
  4. While the location of study is showing as Christchurch Campus on both the Offer of Place and Conditional Offers of place (22), the Conditional Offer of Place is conditional on the successful completion of the previous year of the degree. As such, there is no contractual obligation on the Provider to extend an Offer of Place until the conditions have been met in (22).
  5. The Provider states in their submissions the Offers of Place were followed by an Enrolment Contract (the contract) that was signed by the Student and Provider. Furthermore, the Provider states in (60) “all Programmes offered are subject to review and changes and students are enrolled on an annual basis.”
  6. It is clear to the writer that the Offer of Place is concluded with a signed Enrolment Contract where the Provider and Student sign a Declaration confirming they have read and understood the terms and conditions (46).
  7. The Student has submitted a copy of the 2020 Enrolment Contract (46) which is consistent with the statutory requirements in Section 16 B of the Education (Pastoral Care of International Students) Code of Practice 2016.
  8. The contract is signed by the Student on 9 March 2020 and by the Provider on 8 April 2020. The Programme of Study is for New Zealand Diploma in [PROGRAMME] (Level 6). The start date is 17 Feb 2020 finish date 27 November 2020. The writer notes the contract does not confirm the campus location. No signed enrolment contracts for 2018 or 2019 have been provided by either party. While it is reasonable for the writer to consider that the contracts for the 2018 and 2019 academic year might be similar, without the documents I cannot comment further on this.
  9. While it is difficult to draw a conclusion on whether there has been a breach of the 2018 contract without the contract being provided, the International Student Contract Dispute Scheme may consider whether it would be fair and reasonable for the Student to expect the duration of his study to remain in Christchurch as per (52). And if so, would they be entitled to compensation.
  10. In this regard the writer’s findings are as follows:
    1. The Student anticipated they would live in Christchurch for three years. In their submission’s they state, “I waited 6 months so that I can study in Christchurch and my friends were in Christchurch and it would be easy for me with locating myself without a problem.”
    2. The Student enrolled in the [PROGRAMME] with the expectation he would complete the [PROGRAMME].
    3. In (28) it is noted a year 2 Conditional Letter of Offer was issued on 17 October 2018. This was one month prior to advising the Student on 28th November 2018 that the [PROGRAMME] in Christchurch had been cancelled. The Provider’s decision to cancel the [PROGRAMME] had been under consideration during 2018 and as such issuing the letter would lead the Student to believe the location would remain the same. The Student argues that he never received this letter and the document has not been provided therefore I am unable to give this much weight.
    4. While it is reasonable for the Provider to consider the future viability of the [PROGRAMME] and decide to close the Christchurch [PROGRAMME] upon inheriting the [PROGRAMME] from [REDACTED] as seen in (19). It is also reasonable to expect that the Provider would consider the degree as a whole when making their decision to cancel and provide transparency for the Student to make informed decisions about the options offered by the Provider.
    5. The Student had from 28 November 2018 until 18 February 2019 to make a decision on the options available and relocate which could be deemed as sufficient notice.
    6. The Student was offered three choices as seen in (29) to continue his study in three locations and chose to relocate to Auckland to continue the [PROGRAMME], which was not offered at the other locations. The Student also had the option to continue Level 6 in Christchurch and continue to complete Level 7 in Auckland for his third year of the [PROGRAMME].
    7. The Student found the move to Auckland challenging in (32) and his attendance is recorded as 47.1% in (35). While the Student was challenged by the relocation it does not automatically follow that this directly led to the Student failing 5 papers.
    8. While they have provided few supporting documents, I accept the Provider gave the Student reasonable academic and pastoral support during his studies in 2019. Furthermore in (42) two warning letters (not provided by the parties in their submissions) relating to non-attendance were issued which the Student refers to in his submissions and meetings were held between the Student and Provider.
  11. The Provider submits in (43) in a letter dated 18 December 2019 to the Student, [REDACTED] offered $1,000 on compassionate grounds to cover his relocation costs in response to the Student’s complaint. The Provider states, “[REDACTED] is not in a position to offer a refund of fees for personal failure.” They did not receive a response from the Student accepting or declining the offer until 17 June 2020. The Provider also states that the communication from the Student has been “consistently intermittent, requiring staff to constantly follow up with him to make sure there was continual dialogue ensuing his needs were being met”
  12. I find the difference in time from the date the Provider extended the offer to the Student and the date the Student declined offer to be unreasonable. Not only would the Student have already relocated to Christchurch, but they would also have completed a significant portion of their studies for that semester.

Proposed Determination

  1. The proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be partially upheld

Does the enrolment contract signed 2018 between the Provider and the Student obligate the Provider to provide the [PROGRAMME] in Christchurch?

  1. The Student in (75.1) believed the [PROGRAMME] would remain in Christchurch for the three years of his studies. As evidenced above in (75.3) it has been determined that the Conditional Offer of Place is conditional on the successful completion of the previous year of the degree. As such, there is no contractual obligation on the Provider to extend an Offer of Place until the conditions have been met. Furthermore, the signed 2018 contract has not been provided by the parties. Therefore, the claim that the Provider is obligated to offer the [PROGRAMME] in Christchurch for the duration of the degree is dismissed.

Has there been a breach of the enrolment contract signed in 2018 between the Provider and Student and if so, is the Student then entitled to a refund of the relocation costs, six months living costs and refund of the tuition fees for the 5 failed papers in 2019?

  1. Notwithstanding the decision at (79), when the Provider was deciding on the future of the [PROGRAMME] in Christchurch, it is reasonable to expect that the Provider when deciding on the future viability of the [PROGRAMME], would consider the degree in its entirety not limited to the Christchurch location. As such, the Student potentially would have been better informed when considering their future study options in the knowledge they would not be able to complete the [PROGRAMME] at [REDACTED], thus saving them from relocating more than once. On this basis, the Provider is to pay $1,000 for the Student’s relocation costs for their return to Christchurch.
  2. The Student has also claimed six months living costs and the tuition fees for the five failed papers in 2019. I accept as evidenced above that the Provider has provided sufficient pastoral care to the Student and furthermore the Student was warned twice regarding their low attendance rate in 2019 at 47.1%. The Student would have incurred these costs during the course of their studies. Claim for the refund of six months living costs and the tuition fees is dismissed.

Final Determination

  1. The parties were invited to provide any final comments on the proposed decision issued 25 September 2020
  2. The  Provider has provided no further comments other than to confirm their acceptance of the proposed decision.
  3. The Student made further comment and accepts the proposed decision. As no further evidence was provided and as the Student accepts the decision, the decision remains unchanged.
  4. In absence of any further evidence, the reasoning and proposed decision to this complaint as set out above are confirmed.
  5. The final decision of the International Student Contract Dispute Scheme is that the Student’s complaint be partially upheld.
  6. The claim that the Provider is obligated to offer the [PROGRAMME] in Christchurch for the duration of the degree is dismissed.
  7. The Provider is to pay $1,000 for the Student’s relocation costs for their return to Christchurch.
  8. Claim for the refund of six months living costs and the tuition fees is dismissed.

 

Adjudicator
Emma Barker
13 October 2020