Summary of Complaint

  1. [Student Name] (the Student) enrolled in English for Academic purposes (the Programme), at [Provider Name] (the Provider) starting on 4 November 2019 with an end date of 20 March 2020.
  1. The Student paid a total of $8,984.00 on 18 October 2019 for the Programme.
  1. On 20 March 2020, the Student lodged a complaint to the Provider regarding the quality of the teaching.
  1. On 23 March 2020, the Provider issued an alert to their students advising there will be an immediate school closure on 24 March 2020 due to the COVID-19 virus New Zealand wide lockdown.
  1. In the first week of lockdown, the Student emailed the Provider requesting a refund of her tuition fees as per the published ‘alert’ on the Provider’s ‘app’.
  1. On 18 May 2020, the Student emailed the Provider following up her refund request.
  1. On 19 May 2020, the Provider advised the Student the refund only applies to new students who have not started their studies and that the Student does not qualify for a refund. The Provider advised the Student they would hold their tuition to use at any time.
  1. On 10 August 2020, the Student received an email from the Provider advising the school was preparing to go into [Redacted].
  1. On 12 October 2020, the Student contacted Public Trust and was advised the tuition fees had been released to the Provider.
  1. The Student raised a complaint with International Student Contract Dispute Resolution Scheme on 12 October 2020.
  1. The Provider responded to the Student’s complaint, declining the Student’s request for a refund.
  1. The Student disagrees with the Providers decision. The Provider declined to attend mediation and the Student requested to proceed to adjudication.

Background

  1. The following sequence of events in this matter is a summary of the Student’s and Provider’s submissions to the International Student Contract Dispute Scheme. All submissions have been considered whether they are mentioned or not.
  1. The Student began their studies with the Provider starting in August 2019 for ten weeks. On 4 November 2019, the Student states they “went up to Advanced IELTS course” for twenty weeks.
  1. The Provider submits that on 26th August 2019 the Student “attended our very in-depth induction and signed our induction check list having had all our policies including cancellation and refund explained”.
  1. The enrolment form submitted by the Provider is signed by the Student. The start date is 4 November 2019 and finish date 20 March 2020.
  1. The “Conditions of Enrolment” states:
  • “Courses
  • [Provider Name] reserves the right to change programme arrangements without prior notice.
  • Cancelations and Refunds
  • 3.3.  For programmes of 3 months or more if you withdraw before your programme starts or within the first 10 working days of your programme you will be entitled to a full refund of fees paid to [Provider Name], less a deduction for costs incurred by [Provider Name], up to a maximum of 25% of the total fee paid.
  • 3.5. Confirmation of your wish to withdraw must be provided in writing to [Provider Name]. No refunds are given if you withdraw later than the dates specified above.
  • 3.6. We do not refund fees or give a fee extension if you take time off during the program or leave the program before it expires”.
  1. The Student submits that “from the end of November 2019, the school principal began to merge classes and fire teachers” which affected the quality of the teaching. She also states that “They changed teachers and classrooms all the time without any notice which caused no teaching coherence”.
  1. The Student submits that she laid a complaint with the Provider and met with the “teaching director Ms. [Redacted], the operation manager Ms. [Redacted], and sales manager Ms. [Redacted] to complain about the teaching quality” on 20 March 2020 as “the School couldn’t deliver the course as they promised”. No documentation was provided to International Student Contract Dispute Scheme to support this claim.
  1. The Student states an agreement was reached with the Provider allowing the Student two weeks leave while they “do some adjustment”.
  1. The Provider refutes the Student’s comments about teaching quality as “unfounded criticism” “we are a very small boutique school, with 9 classrooms and 11 experienced teachers, to move from one room to another in the same small compact building and to have another teacher when one is on annual holiday is no hardship”.
  1. On 23 March 2020, an ‘alert’ though an ‘app’ was issued to “parents, agents and students” notifying the campus will be closed from 24 March 2020 due to the COVID 19 New Zealand wide lockdown. The ‘alert’ says:
  • “Current students who remain in New Zealand will have their study suspended. This means they will be able to commence their study with us as soon as the situation normalises. They will not lose tuition fees due to this unprecedented situation; their studies will continue as and when it is safe to do so.
  • [Provider Name] acknowledges the impact that this announcement has on future students and we have put the following procedures in place to assist you and your students in making the relevant changes to your study plans with us.
  • Students who wish to postpone their study with us will be able to do so at no charge.
  • Students who wish to cancel their study with us will receive a full refund for their fees paid.”
  1. The Student submits that as she wished to cancel her ‘Programme’ she applied for the refund of the left-over tuition fees via email and did not receive a response.
  1. Emails between the Student and [Redacted] dated 18 May 2020 shows the Student queried why she was not notified of the Provider’s re-opening of classes and why she had no notice regarding her request for a refund.
  1. The Provider ([Redacted]) emailed the Student on 19 May 2020 advising “As our previous communication with student’s state, students who are currently studying with us will have their tuition suspended. This means your tuition has been placed on hold and you are able to return to class when it is safe to do so”.
     
  2. Furthermore, the Provider advises the Student “you may have been confused with the English on the app as it states that if students cancel their programme, they are able to get a full refund. This sentence applies to students who have not yet started their study with us”.
  1. The Provider refers the Student to their refund policy and reiterates they will keep her remaining eleven weeks tuition on hold and that she is “welcome to study your 11 weeks with us”.
  1. The Student elected not to return to class once lockdown was lifted and states, “at that time [Provider Name] still did not have IELTS advanced courses for me to take” However there is no mention of this in the emails between the Student and Provider nor any documents submitted to International Student Contract Dispute Scheme reflecting that this was raised with the Provider.
  1. On 27 July 2020, The Student further contacted the Provider requesting a refund and to meet with the Provider. In response the Provider reiterates the Student’s “tuition has been placed on hold and you are able to return to class when it is safe to do so”. The Provider advised if the Student wishes to withdraw then point 3.3 of the refund policy would apply in her situation.
  1. The Student states that “because there was still no advanced IELTS course, I could not go back to school to learn something not relevant to me. If they could not supply Advanced IELTS I wanted to get a refund for my tuition.”
  1. In August 2020, the Student explains to the Provider that due to a leg injury which became worse in winter and “poor physical and mental condition” she was unable to attend classes and needed the refund to “support her life”. She also was struggling financially due to the limits placed by the Chinese government on lending money.
  1. In October 2020, the Student contacted the Public Trust to “freeze my leftover tuition” and discovered that her tuition fee had been released to the Provider in May. The Student states “the Public Trust should not release the tuition for classes I haven’t attended”.
  1. The Student raised a complaint with International Contract Dispute Resolution Scheme on 12 October 2020.
  1. The Provider responded to the Student’s complaint, declining the Student’s request for a refund.
  1. The Student disagrees with the Providers decision. The Provider declined to attend mediation and the Student requested to proceed to adjudication.

Student’s position

  1. The Student’s submissions to the International Contract Dispute Resolution Scheme are dated 19 January 2021.
  1.  Through reviewing the Student’s submissions and documents I understand the following as their position
  1. The Student submits they enrolled in the Advanced IELTS Course in November 2019; however, they felt the teaching quality was “extremely poor” and therefore the ‘Programme’ that she had paid for was not what she received.
  1. When classes resumed on 18 May 2020 the Student advises that there were still no Advanced IELTS ‘Programme’ for her to take and therefore was unable to sit the Advanced IELTS exam which would allow her to pursue post-graduate study in New Zealand.
  1. The Student submits that the Provider, in an ‘alert’ to all students through an ‘app’ offered all Students who wished to cancel their study a full refund because of the campus closure due to COVID-19 virus nationwide lockdown. The Student wished to cancel her studies therefore applied for the refund and believes she is entitled to this.

Providers Position

  1. The Provider’s submissions to the International Contract Dispute Resolution Scheme are dated December 2020 and received 20 January 2021.
  1. Through reviewing the Provider’s submissions and documents I understand the following as their position.
  1. The Provider states they have met the statutory refund requirements, “Our refund policy is directed by NZ Government legislated rules and our refund policy is verbatim to the requirements”.
  1. The Provider gave the Student an in-depth induction explaining the withdrawal and refund policies as well as being provided with the policies. The Student signed the Conditions of Enrolment and thereby confirming she had read and understood the Conditions of Enrolment.
  1. As the Student requested to withdraw more than 10 working days after the start of the programme and before the Programme ended, the Student is not entitled to a refund as she does not meet the eligibility criteria under the Providers refund policy.
  1. The Provider placed the Student’s tuition on hold and once lockdown was lifted offered four adult classes including Advanced IELTS which was available for the Student to continue her studies. The Student elected not to do so.

Discussion

  1. The questions which the International Student Contract Dispute Resolution Scheme must determine:
  • Has there been a breach of the enrolment contract signed in 2019 between the Provider and Student and if so, is the Student then entitled to a refund of their tuition fees?
  1. To determine whether the Student should be paid a refund of the tuition fees 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.”
  1. The Provider has submitted the ‘Enrolment form’ which has the “Conditions of Enrolment” on the back. Both sides of the document have been signed by the Student.
  1. In (17) The Provider refers to 3.3 and 3.5 of the ‘Conditions of Enrolment’ and states that the Student’s request for a refund is outside of the first 10 days of her enrolment and is therefore not entitled to a refund.
  • “3.3.  For programmes of 3 months or more if you withdraw before your programme starts or within the first 10 working days of your programme you will be entitled to a full refund of fees paid to [Provider Name], less a deduction for costs incurred by [Provider Name], up to a maximum of 25% of the total fee paid.
  • 3.5. Confirmation of your wish to withdraw must be provided in writing to [Provider Name]. No refunds are given if you withdraw later than the dates specified above.”
  1. This policy is consistent with the statutory requirements for refunds as set out in the New Zealand Government Education (Refund Requirements for International Students) Notice 2012 (the “Notice”). This states that an international student enrolled in a course of study of three months duration or more, will be eligible for a refund for fees paid should they withdraw from the course within 10 working days of the commencement of the course.
  1. As the Student commenced the ‘Programme’ on 4 November 2019 and placed their request for a refund in March 2020, more than ten working days have passed the Student started the ‘Programme’.
  2. As such, there is no contractual obligation for the Provider to provide the Student a refund.
  1. However, the International Student Contractual Dispute Scheme may consider whether it would be fair and reasonable for the Student to be given a refund as per (49).
  1. The Student submits that the ‘alert’ notification in (22) advised students they could apply for a refund if they wished to cancel their studies. The Student argues that ‘alert’ applied to any student wishing to cancel their studies and as the Student emailed the Provider requesting to cancel her studies she is therefore entitled to a refund.
  1. Reviewing the alert shows it has two parts. The first part advises:
  • “Current students who remain in New Zealand will have their study suspended. This means that they will be able to commence their study with us as soon as the situation normalises. They will not lose their tuition fees due to this unprecedented situation; their studies will continue as and when it is safe to do so.”

The second part advises:

  • “[Provider Name] acknowledges the impact that this announcement has on future students and we have put the following procedures in place to assist you and your students in making the relevant changes to your study plans with us. Students who wish to postpone their study with us will be able to do so at no charge. Students who wish to cancel their study with us will receive a full refund for their fees paid.”
  1. The definition of “current” in the Oxford dictionary is “belonging to the present time” in this context referring to present students, students who have begun their studies. As such the Student, having started their ‘Programme’ would be defined as a “current student” and therefore the Student would be entitled to have her study suspended.
  1. While the offer of a full refund is on a new paragraph, which I appreciate could create initial confusion, it is clear that this part of the alert follows from the prior paragraph relating to “future students” by having already outlined the process for current students my conclusion is that the second paragraph relates to new/future students and would not apply to [Student Name].
  1. Furthermore, when the Student emailed the Provider on 19 May 2020 to follow-up her request for a refund, the Provider replies clarifying “this sentence applies to students who have not started their study with us.”
  1. The Provider acted reasonably by offering to hold the Student’s tuition and ensuring she would not lose any of her “study weeks”.
  1. While the Student in (19) argues the quality of the teaching and changes to the teachers is a breach of the contract and that the “Advanced IELTS course” was not delivered. No documentation was provided to International Student Contract Dispute Resolution Scheme to support this. Furthermore, the emails between the Provider and Student show no mention of issues with the course quality.
  1. The jurisdiction of International Student Contractual Dispute Scheme is limited to financial or contractual matters as determined by the Education Act 1989 and an examination of course/programme or teaching quality is beyond the jurisdiction of iStudent.

Proposed Determination

Has there been a breach of the enrolment contract signed in 2019 between the Provider and Student and if so, is the Student then entitled to a refund of her tuition fees?

  1. The ‘Conditions of Enrolment’ clearly outlined the refund policy and is signed by the Student. The Student withdrew after the 10 day withdrawal period. When the refund offered in the ‘alert” was queried by the Student the Provider provided clarification advising they are not entitled to a refund. As such, the proposed decision of the International Student Contract Dispute Scheme is that the Student’s complaint be dismissed.

Final Determination

  1. The parties were invited to provide any final comments on the proposed decision issued 3 March 2021.
  1. The Provider has provided no further comments or submissions.
  1. The Student made further comment and provided further documents. These documents are; An email from the Provider to Students advising of the re-opening date and changes to the classes on return from lockdown, a copy of text messages between the Student and [Redacted], a former employee of the Provider, a copy of text messages between the Student and [Redacted], a former employee of the Provider, and the Student’s attendance record.
  1. I have considered the further documents and submissions provided by the Student and my conclusions are as follows.
  1. The Student submits the text messages from between [Redacted] and the Student show no online courses were given by the Provider during the Covid-19 lockdown and therefore the Provider accessed the tuition funds from the Public Trust “because I participated in the school’s online course”.
  1. The Student submits text messages between [Redacted] and the Student show the Student made a complaint about the teaching quality.
  1. As outlined in (63) The jurisdiction of International Student Contractual Dispute Scheme is limited to financial or contractual matters as determined by the Education Act 1989 and an examination of course/programme or teaching quality is beyond our jurisdiction. I am therefore unable to make a determination on the course quality or teaching quality.
  1. As the Public Trust controls the drawdown of money, the decision of the Public Trust to release tuition fees to the Provider would be a matter for the Public Trust to consider. There are no documents provided by the Student to support their argument that the drawdown was incorrect.
  1. The Student submits that they notified the Provider during the Covid-19 lockdown that they wished to withdraw and requested a refund of their tuition fees. Furthermore, the Student submits that ‘they did not notify me to resume the course after lockdown’.
  1. In an email dated 19 May 2020 from [Redacted] to the Student, [Redacted] clarifies to the Student “Our classess resumed on Monday, you did not receive an email from us, as you have previously stated that you want to withdraw from your studies.”
  1. [Redacted] further states “Please let me know what you would like to do [Redacted], I am more than happy to keep you remaining tuition on hold for you. You can use this at any time without losing your study weeks.” [Redacted] also outlines the refund policy advising that she does not qualify for a refund.
  1. In an email dated 27 July 2020 from the Student to the Provider she states “my agent has contacted you and I want to refund the fee”
  1. I find that as the Student had notified the Provider of their withdrawal during Covid-19 Lockdown and requested a refund, it would be reasonable for the Provider to expect the Student would no longer be attending classes and not notify the Student of the course start.
  1. The Provider’s email dated 19 May 2020 was the day after classess re-opened. The Student was not prevented from attending class and it is reasonable to assume she was able to rejoin the class without significant loss of class time. Furthermore, the Student was provided with sufficient information to decide whether to withdraw or not.
  1. The Student submits that the course “conditions” were changed after lockdown and therefore “cannot use the original contract to require me to abide by the original rules”
  1. With the Covid-19 pandemic it is reasonable to expect the learning enviroment conditions to have changed, not only with this Provider but with providers nationwide. The pandemic was outside of the Providers control and unprecedented. The Providers would be required to make changes to their classrooms to ensure the health and safety of their Student’s. No documents have been provided by the Student to support their claim that the advanced IELTS course was unavailable.
  1. As such, the final decision of the International Student Contract Dispute Scheme is that the Student’s claim is dismissed.

 

Adjudicator
Emma Barker
1 April 2021