That’s because some universities had already told students that the fee would be £9,000. That should be less of a problem this time in England given where we are in the admissions cycle – although if an offer has somehow already been made, that could generate complications.

Then, if you want to apply the increase to continuing students already enrolled, you need to have given yourself the power to increase it in your Ts and Cs. And those Ts and Cs need to be legally sound and compliant with consumer protection law.

On Tuesday when Jacqui Smith (re)announced the increase, Baroness Baron (Con) asked her to clarify what this means for undergraduates who have already started their course:

…as there was some confusion in Wales when fees were increased recently and it played out differently in different institutions.

Smith said:

Regarding students who have already started, the intention is that the tuition fee increase will apply to new and existing students, but that could depend on the contract and arrangements made between the university and the individual student. We will make further announcements on the changes to postgraduate support and the disabled students’ allowance in due course.

Based on what I’ve read of university webpages and Ts and Cs, “could” in that para is doing a lot of heavy lifting.

The foundation year fee cut will obviously need some very careful handling – because take a step back, and Y0 to Y1 represents a whopping price increase.

The Competition and Markets Authority’s advice on consumer protection law for UK higher education providers says that it is important that students know how much their course is likely to cost in total to allow them fully to assess their options and to plan better financially.

And it’s no good arguing that students don’t actually pay it – because some actually do.

What the CMA says

The CMA says that a failure to provide information about total tuition fees for a course – all of the years, not just the forthcoming one – would count as a misleading omission in consumer protection law.

That’s not to say that its advice is that the first year fee must always apply for all the years of a course – but it is to say that a contractual term that provides for fee increases may be less likely to be open to legal challenge for potential unfairness if clear, accurate, transparent information about potential fee increases is actively drawn to a student’s attention up front.

And essential to that is being able to foresee when entering the contract whether and how fees could change. To be compliant:

• the term sets out limited circumstances and valid reasons why fees might increase – for example, the provider sets out its ability to increase fees in line with inflation to reflect increased costs of delivering the course;
• increases are linked to an objective verifiable index, such as the Retail Prices Index for inflationary rises, which would give an objective, clear framework for students to foresee when the fees would be expected to change.

Bridget Phillipson’s “inflationary increase” only ends up being compliant if the OBR’s projection of inflation ends up accurate. As we know from its record on predicting RPIX for maintenance purposes, it doesn’t have a stellar record.

There’s no way a broadband company or a mobile phone firm would get away with “price increases will reflect an OBR projection of inflation” – and given RPIX is currently at 2 per cent, and CPI is currently at 1.7 per cent, you can see the problem.

The vague mentions of “by inflation” in many student contracts and on plenty of university websites would almost certainly fail the “objective verifiable index” test. It’s hard to find any university that sets out which measure of inflation it will use, and when that measure will be taken – and given the volatility in recent years, that matters.

Many say something like this:

Tuition fees are reviewed annually and may increase in subsequent years in line with inflation linked to the Retail Price Index (RPI) to take account of the university’s increased costs of delivering the Programme.

RPI and RPIX are not the same thing, neither are the same as CPI, and none of them are the same as an OBR guesstimate.

One university says:

Your tuition fee may be increased by a permitted inflationary amount each year. Details of the fee amount will be available on our website when these are available.

Try again.

Some say things like:

fees are payable at the rate published for the year of study rather than at the rate applicable at initial registration”

…but that would obviously fail that “total price awareness” in advance test.

Some university websites say “UK undergraduate fees are regulated by the government” and others say that “fees may rise in line with the amount set by the government”.

But the government doesn’t set a fee – it sets a maximum fee. Even those that say they’ll charge the maximum set by the government are unlikely to be offering the clarity to students upfront that consumer protection law demands.

This, for example, is likely to be unlawful:

The university will charge the maximum approved tuition fee per year. If Parliament agrees on an increase in tuition fees, the university will increase fees for each year of study normally in line with these changes. Fee Loans would also be expected to rise in line with any increase in the fee, to ensure that higher education remains affordable to all.

Others say things like “the only authoritative information on fees is X office, anything else is advisory” in an attempt to cover for stray webpages or info on open days – that practice falls foul of the “sorry, anything you tell them is material” thing that the Office for Students published on last week.

Some universities have switched from Ts and Cs that didn’t allow in-course fee increases to Ts and Cs that do – and still say things like “when you re-enrol you agree to the new Ts and Cs”. CMA rightly says it’s the Ts and Cs you sign when you’re made the offer that apply.

Plenty say things like:

We’ll only increase your fees by inflation each year”

…without specifying which measure of inflation, or when it will be taken. Mobile phone companies and broadband companies wouldn’t get away with that – they specify a measure and a month.

Some universities say things like:

We’ll let you know about any rise in tuition fees before the start of the academic year to which the increase applies. You won’t be obliged to continue with your course if you don’t wish to pay the increased fees.

It’s true that the CMA says that terms that impose unpredictable increases need to give the consumer the right to cancel – but the right to cancel must be real and capable of being exercised in practice – and in the case of HE:

…switching course or, in some cases, withdrawing and switching HE provider, is likely to be difficult or impractical in practice, bearing in mind that in many cases the student will not be able simply to transfer their credits to another HE provider, and so saying the student can switch may not improve matters for them, or alleviate potential unfairness of a term.

In-contract increases

Are any increases fair? As I noted back in April, complicating all of this is what the CMA has said about a consultation on prohibiting inflation-linked telecoms price rises.

That consultation was launched last year following Ofcom’s concern that a number of telecoms companies’ contract terms allowed for an annual rise in in-contract payments linked to future inflation, sometimes plus an additional percentage.

Ofcom argued that “inflation-linked price variation clauses” not only make it difficult for consumers to know with any certainty what they will be paying through the duration of a contract, but also require customers to:

…assume the risk and burden of financial uncertainty from inflation with tangible impacts on their ability to manage costs.

It is true that many students get a loan for their fees, but many don’t – and thanks to changes to loan Ts and Cs which will see the vast majority of graduates pay off in full, the level of debt on graduation is more material than it was when fees last went up.

Ofcom proposed a ban on telecoms companies including inflation-linked price rises in their contracts, and also proposed a ban on any price rises set out in percentage terms in contracts – instead, they are saying that where telecom companies contracts allow for a mid-contract price increase, the amount must be set out upfront, in pounds and pence.

The CMA’s response indicated that it agreed with Ofcom that:

…the existing practice of inflation-linked price variation terms plus an additional percentage is likely to cause consumer harm.

…and it noted the imposition of what it calls an “unfair financial risk” on consumers.

That ban will come into force on 17 January 2025.

The CMA’s legal justification was set out in part in another consultation response to the Advertising Standards Authority on new guidance on how to present information about mid-contract price rises in ads for broadband and mobile services.

CAP issued formal guidance which took effect on 15 December 2023. It states that the presence and nature of mid-contract price increases are material information that consumers need to make informed transactional decisions, and offers all sorts of advice about prominence, predictability and so on.

Neither the CMA nor the ASA have (yet) applied any reads-across to higher education, but really now should.

What will/should/could OfS do?

Since its inception, OfS has always maintained that there is no meaningful difference between the student interest and its work to ensure providers’ finances are shored up.

But if it’s the case that almost no university in England has legally compliant terms on imposing the increase on continuing students, the Office for Students has a couple of choices.

It could work with CMA to put out a clarification on the guidance. A university may then go ahead and respond to any individual complaints that it gets.

But OfS’ official position – as outlined in this board paper – is that ​​we shouldn’t really be depending on a model that relies primarily on individual students challenging a provider for a breach of contract, because that places a burden on students in an undesirable way.

Condition C1 – guidance on consumer protection law – requires providers to demonstrate that in developing and implementing its policies, procedures and terms and conditions it has given due regard to relevant guidance about how to comply with consumer protection law.

So the alternative would be to set fees for continuing students at £9,250, and ask any provider that thinks it has terms that would allow it to impose an increase to… demonstrate that.

Arguably, of even more concern, is that of the Ts and Cs and webpages I’ve reviewed over the past 24 hours, vanishingly few are compliant from a continuing international undergraduate (or multiple year PG) perspective either.

A new “student interests board” is a process issue. Whether OfS therefore acts in a more proactive way on this fees issue will be a much more telling test of its “student interests” intentions.