Lost in translation

Times Higher Education recently reported that almost two in three UK universities are requiring standards of English-language proficiency below the recommended level for non-EU undergraduates.  That level has been described by IELTS as “probably acceptable” for “linguistically demanding” training courses, but not for academic programmes.

While the pedagogical challenges of this practice may be clear to institutions, what may not be immediately apparent is that it is also likely to expose institutions to some legal risk.  That risk may arise in misrepresentation, negligence (for negligent advice) or in contract, depending on the circumstances.  Simplistically put, liability for misrepresentation or negligent advice arises if a student reasonably relies on representations or advice provided by an institution and he/she suffers loss as a result. Breach of contract claims arise where an institution fails to deliver the course and related services to a reasonable standard.

By setting an express standard of language proficiency, an institution is representing to applicants, or advising them, that that is the level at which they will have a reasonable opportunity of achieving the particular award, subject of course to attending lectures and engaging in a reasonable amount of course-related study.  If the actual level required is in fact higher and students at the lower level are put at a significant disadvantage in pursuing the course of study, then institutions are vulnerable to claims for damages in misrepresentation or negligence for the losses suffered as a result e.g. where students fail or drop out.

It could also be argued that successful applicants whose English is sub-standard will have a reasonable expectation that the academic and support services provided will accommodate their level of English. If, for example, lectures are delivered and related notes are drafted at a level of English beyond the comprehension of those non-EU students admitted on low levels of proficiency, the institution could be regarded as having failed to provide an educational service to a reasonable standard.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

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