Technical Institute required to amend student records when course cancelled
Students enrolled in a two stage course to obtain a Certificate of Security were informed the second half was cancelled shortly before it was to commence—Technical Institute explored various options including notifying on the relevant academic records that students had ‘withdrawn’—students complained notation, course cancellation and lack of certification was unreasonable—Institute explained to Ombudsman that certificate registration was in train, the timing of the tutor’s resignation left it with few options but it was willing to explore these with students—Institute acknowledged it cancelled the course but current system did not have ‘cancellation of course’ as an option—Institute willing to review system and remove course from student records—Ombudsman satisfied that Institute acted reasonably to provide students with other options, certificates forthcoming and removing course from records would resolve complaint
A Technical Institute (the Institute) offered a one year certificate course in 2002 which was intended to prepare successful students for a career in the security industry and would lead to a Certificate of Security. Completion of the course would also have qualified the successful students for a Certificate of Approval (COA) issued by the Department for Courts which amounts to a security clearance within the industry. The course was to be provided during the second half of 2002 and the first half of 2003.
The first half of the course was completed by the end of 2002. However, shortly before the second half of the course was to begin in February 2003, the Institute informed the students that the course had been cancelled. Several of the students enrolled in the course advised that they had been told the course tutor had resigned and another could not be found.
Several meetings between the Institute and the students followed with a view to discussing how the students might complete the course, including the options of completing the course through another provider, a Private Training Establishment (PTE), or distance delivery. Alternatively, the students were given the option of exiting the course at the Level 2 stage with the NZQA Certificate in Security Level II on the basis of having completed six months of the one-year course. In that event, the Institute advised by letter that it would assist in completing any outstanding courses for that Level that remained incomplete and it would apply for the COA at its expense, subject to Police clearance. The Institute advised the students that: ‘You will receive advice that we have withdrawn you from the programme. This is to ensure you do not incur fees after the 10 mark of the programme which is cancelled’.
The students did not proceed with the various options and they were eventually refunded their fees for that part of the course that was not delivered by the Institute. However, they had several grievances against the Institute which remained unresolved and about which they complained to the Ombudsman. The students complained that the decision to attach and maintain the reference ‘withdrawn’ on their academic records was unreasonable and misleading given the students did not withdraw from the course, rather the Institute failed to meet its contractual obligation to provide it. They were also concerned that to have this on their academic records may affect any future study they may wish to embark on, including the seeking of financial assistance, and they therefore wanted it removed. The students considered the Institute had also acted unreasonably in failing to provide a course for which they had enrolled and paid, without a reasonable explanation being given for its cancellation and that the Institute was unreasonable not to provide them with the relevant certification relating to the completion of the Level II course. This included the COA which the Institute had assured would be obtained and forwarded to them, given they had successfully completed the six months of the course which entitled them to these certificates. The students said that, without them, they had been unable to progress their career opportunities and they were unaware of any impediments to obtaining these certificates.
The Ombudsman asked the Institute to comment on these issues and was advised that the tutor resigned about one week prior to the scheduled start of the second part of the course creating ‘unforeseen circumstances’ for the Institute. As a result, it took the view that it needed to manage the impact of that resignation very carefully, taking into account several factors including the welfare of those enrolled, and providing an alternative opportunity to achieve educational outcomes. The Institute advised that it provided the students with two remedial options for completing the course, namely to complete it with a PTE or by distance delivery. The Institute provided copies of its notes taken at meetings with the students which discussed these options and the difficulties the students had with them. The Ombudsman noted that one student did not wish to undertake the distance learning option because he considered face to face tuition was more beneficial for his style of learning. The Institute attempted to address this concern by proposing a third option of a paper-based distance learning programme at a discounted fee with tutor support provided by the Institute for one hour per week at a location of the student’s choice. However, the Institute had not received any substantive response from the students on this option. In any event, the Institute advised the Ombudsman that it remained willing to meet with the students to assist in the resolution of any outstanding issues.
The Institute also confirmed to the Ombudsman that all the students had passed Level II and this was now being processed. Full registration of this with NZQA was expected to take place within the following 10 days. The students’ eligibility for the COA would be established when the NZQA registration of their Level II course was completed, at which time the students could make their applications. The Institute also confirmed its previous advice that it was willing to assist the students with this. Finally, the Institute advised that ‘from an academic perspective, there is no prejudicial effect to the students’ records as a result of the ‘withdrawn’ being recorded’ and compared with the ‘Did not sit (DNS)’ alternative, this notation was considered ‘more technically correct’.
The Ombudsman reviewed the options and concluded that neither of the options could reasonably be said to accurately reflect the fact that the Institute had been unable to provide the course and had cancelled it. The Ombudsman noted that it was his understanding that in the circumstances of a course being cancelled by the institution, albeit after enrolment, it would be appropriate that there would be no reference to it on the students’ Record of Learning. Alternatively, it would have been open to an institution to record that it had cancelled the course on the Record of Learning. The Ombudsman sought the Institute’s further comments. The Institute advised that its current recording system did not have ‘cancellation of course’ as an option for student records as cancellations do not occur frequently. However it did not intend to place its students in a disadvantaged position and agreed to amend its recording system and process. It also agreed to adopt the modified system and procedure in any future cases of this nature.
Accordingly, the Institute agreed that it had cancelled the course and the students’ registration for the course was therefore a ‘non-enrolment’. The Institute said it would remove the record of the course from the relevant students’ academic records. The Ombudsman advised the students that he was concluding his investigation into this aspect of their complaint on the basis that it had been resolved.
The Ombudsman also advised the students that, in his view, given the Institute’s continued attempts to address the objections raised by them to its original remedial proposals, it would be difficult to conclude that the Institute had responded unreasonably to the situation that had arisen following the resignation of the tutor. Further, as the Institute had confirmed that it remained willing to continue to meet with the students to assist in the resolution of any outstanding issues regarding the completion of the course, the Ombudsman considered that any continued investigation of this aspect of the complaint would not be warranted at this stage.
After the Institute confirmed that NZQA registration of the students’ passing of the Level II course was forthcoming, NZQA issued the students with a formal Record of Learning that was both complete and correct. The students also received the relevant National Security Certificate (Level II) and were then given the option of either the Institute processing a fresh COA application for them or the Institute refunding the fee previously paid for the COA with any further application being left in the students’ hands. In these circumstances, the Ombudsman was satisfied that this aspect of their complaint had also been resolved.
During the course of his investigation, the Ombudsman noted that the students seemed to consider that the Institute ought to have met its contractual obligations to them by appointing a replacement tutor. However, this was not the only option available for consideration by the Institute. The Ombudsman noted that the general law recognises a contract may be varied in unforeseeable circumstances. In general terms, the parties could agree to a variation of the terms or agree to terminate the contractual relationship. However, where different decisions might reasonably be open to an organisation, the focus of an Ombudsman’s investigation is not on whether the organisation necessarily followed the best course of action or that most desired by the other party. Rather the focus of his investigation is to form a view as to whether it could be said that the organisation acted unreasonably.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.