OfS updates its consumer protection guidance

The fun exercise is to try and figure out why changes have been made to its June 2020 guidance beyond issues of tense.

Early on in a section in clear and timely information, providers are now told they “must inform students of the avenues of redress that might be available to them”. Maybe that suggests that OfS has come cases where students aren’t aware.

There’s a whole new paragraph on what it said last June on what we might call expectations that summarises the internal reviews it asked providers to complete in the first half of the term:

In order to satisfy our regulatory requirements, we were clear that students who began their studies in 2020-21 needed to be able to understand what a provider was committing to deliver, how it intended to achieve this and what plans were in place to manage possible changes should these be required in response to the pandemic and changing public health advice. For example, we expected providers to be clear with students starting in 2020-21 about the extent to which they planned to deliver teaching online rather than face-to-face and over what period. We have asked providers to review the commitments that they made to students to assure themselves that they have complied with consumer protection law.

And it therefore makes sense for OfS to remix that guidance for students who’ll start in 2021-22, with another one of its calls for absolute clarity:

Providers must ensure they are clear with applicants about what they are committing to deliver and what would happen in the event of further disruption. Although providers cannot predict what might happen, they can set out what arrangements are planned based on their experience to date. Prospective students should be able to apply for and confirm their choice of a course and a provider with confidence on the basis of such information.

Later it refers specifically to marketing materials for September 21 starts that “may have been based on assumptions about when the pandemic was likely to be under control or would allow for courses and the student experience to be delivered as normal”, so it’s keen that providers check that messaging is appropriate.

For reasons it’s hard to fathom, this new March 2021 version adds the following sentence to a section on “material information”, even though the sentence was already there:

Providers should also be clear about any extra costs that students might need to bear to access resources or buy equipment as a result of the changes to teaching.

Maybe – in the context of a yawning digital divide – it’s a message so important that OfS now thinks it needs saying twice:

There’s a significant(ish) beefing up of a section on obtaining consent from students for any changes to what was on offer:

Changes to material information should be drawn to the attention of applicants before they accept an offer, so they can make informed choices. Once an offer is accepted, the express consent of the student is needed to make any changes to material information that was included in the offer. If an applicant is not made aware of, or does not consent to, changes to the material information in the offer for 2021-22, they may have a legal right to redress including a request for repeat performance or a partial refund (as applicable).

…the important bits there being “drawn to the attention”, “express consent” and (if you link back to the “redress” change earlier) the “right to redress” in the event of not consenting or not being made aware.

It will be interesting to see whether OfS has any views on practice it may have come across that it is satisfied counted as sufficient or not sufficient in each of the above areas. It certainly doesn’t feel like there’s a groundswell of student opinion saying “yeah, I knew what I was getting into because the uni warned me and gave me plenty of alternative options” but maybe that’s just the circles I swim in.

Was, for example, “here’s some changes and if you re-enrol you’re accepting them and if you don’t like them email us on chitchat@fibchester.ac.uk” enough? We don’t know.

Similarly, for students who started their courses in 2020-21:

Once an offer was accepted, the express consent of the student should have been obtained in order to make any changes to material information that was included in the offer. Providers had the opportunity to set out in advance of the student starting their course in 2020-21 the changes that might have to be made and what it planned to deliver in different scenarios. Our expectations in relation to consumer protection are therefore different depending on when a student started their course.

There’s a fascinating new paragraph that covers off what OfS expects to happen if providers were, as it turns out, in breach of those requirements last summer:

If students who started their courses in 2020-21 were not made aware of, or did not consent to, changes to the material information in their offer, before they confirmed their place, we expect the provider to ensure that those students are aware of the options available to them, including the right for the student to seek repeat performance or a partial refund (as is applicable in the circumstances).

Any changes to courses that have been made to comply with government public health advice and the introduction of tiers or the national lockdown should not be significantly different to that which was promised to the student. The material information provided to students before offers were accepted should have set out what might change and how this would be implemented. In these circumstances, although the course may be different to that advertised at the point the student made their application, this should already have been clearly and properly explained to the prospective student.

Again, the suggestion here is that nothing that has happened since August should have come as a surprise to students – disappointing maybe, but not a surprise. One wonders if its ongoing student polling is testing whether students felt, or indeed were sufficiently warned about what would happen in the event of a lockdown like the one we’re still in now.

That’s about it – save that right at the end of the document, it’s a series of deletions that are most interesting.

Plans for protection

You’ll recall that every provider on the OfS register is supposed to have a Student Protection Plan that sets out the risks to continuation of study from the point of view of whole providers, courses, campuses or material components of courses.

Condition C3 of the OfS regulatory framework says that risks considered by providers should include not being able to award the qualifications for which its students are registered (like a PSRB being wary about awarding in the context of restricted access to placements and practical facilities), one or more of the locations at which the provider delivers courses to students is no longer available (because of, you know, a lockdown), and not being able to deliver material components of one or more courses (placements, labs, exhibitions, field trips – anything that has to be done somewhere other than your bed or your kitchen on a laptop).

Plans were supposed to include provider assessments of the risks, likelihood that those risks would crystallise and the severity of the impact on students should the risks crystallise.

And the good news is that the plan has to set out the measures that the provider has put in place to mitigate those risks that it considers to be reasonably likely to crystallise. This includes existing procedures that are in place to respond should risks crystallise, and the steps the provider will take to ensure that mitigations are fair and reasonable for students – taking into account the diversity of students and their needs, including for example considerations of mobility, educational need, parity of course content or financial consequences.

The provider should also make a commitment to offer students advice and support in the event that any of the risks to the continuation of study crystallise.

So given all of that – and the ongoing requirement to make sure SPPs are a “live document that is routinely updated”, you’d have assumed that given the pandemic was highly likely to present risks of the sorts identified, OfS would have asked every provider to rewrite their plan last summer to give appropriate protection to students. The risks had changed, so the protections should have changed too.

Don’t you worry ’bout a thing

But it didn’t. Bafflingly it said that it would not require changes to be made to approved student protection plans as a matter of course. So the pre-pandemic plans weren’t up to scratch according to OfS’ own analysis, and can’t have been up to scratch during-pandemic either because they’ve not been updated.

That leaves us, for example, in the utterly preposterous situation where hundreds of current and “live” SPPs either don’t mention the risk of material components of courses not being deliverable, or stating that the risk of that is “low”. No wonder OfS has deleted those paragraphs.

Sections now gone remind us that OfS had intended to consult on revised guidance for student protection plans during 2019-20 but it paused planned consultations last spring. Yep – in the middle of a pandemic, it paused improving protection for students because of the pandemic.

One deleted section said that providers should “make all reasonable efforts to deliver any commitments in their student protection plans that are relevant”, but that makes no sense if the commitments that were in those old plans didn’t match the obvious risks posed by the pandemic.

In the operating environment of June 2020, it said that “rather than requiring all plans to be revised” it was instead taking an approach to ensure “robust student protection measures” in the event of “closure of, or material changes to, courses”.

It’s something of a stretch to suggest that what it did instead has somehow helped protect students facing various disruptions to their study this year – but in any event a student now facing the “crystallisation” of risks like placements not running, labs being closed or campuses not opening up facilities haven’t got a set of commitments in a protection plan to go on.

My guess is that what’s happened here is that a) last summer OfS really did think the big risk was provider collapse due to failure to recruit and/or deferral, and that stuff would largely be back to normal by September. It was a bad call, but now it can be fixed.

With considerable uncertainty surrounding September 2021, would it really be so unreasonable to ask providers to sit down with student reps now, look at the risks afresh and make some commitments that students might depend on?

For example. A draft SPP could look like this:

And then after consultation with students it could look like this:

…which would be pretty cool.