Treating students fairly means providers admitting when they don’t

There are a couple of ways in which I suspect folk will respond to both the big picture and the detail of the Office for Students’ (OfS) new proposals on Treating Students Fairly.

The first is to recoil in horror at each and every new opportunity for a student to submit a complaint, obtain redress and get what it was that they were promised. “This will destroy the partnership between students and universities”, and so on.

The second is to note that feeling, smile ruefully and remind oneself that almost everything in there is in law already – only this time, someone might actually enforce it. “Maybe it’ll strengthen that partnership as a result”, and so on.

David Kernohan has already set out the basics of what OfS is proposing with ongoing condition C6. Here I’ve gone wading into the weeds to determine why the real action might be somewhere the regulator says it isn’t looking.

OfS isn’t, at least for the time being, a consumer law enforcer. It says so repeatedly, and it’ll say so again if you ask. But C6 reads like something written by people who want to be one – or at least, by people who’ve been told by the Behan review to get a lot closer to consumer protection law than they’ve been comfortable with so far.

The right way to read C6 is as a piece of sector-specific consumer law guidance that in some places goes further than the Competition and Markets Authority’s (CMA) own guidance, in some places doesn’t go as far, and in one very specific place – reasonable care and skill – may yet opened a door OfS pretends it hasn’t touched.

Surprise scope

A few things stand out as unexpectedly broad.

Apprentices and employer-sponsored students are squarely in. C6.2a says the condition applies “regardless of the arrangements for the payment of tuition or other related fees” and covers students “whether or not the student is obtaining higher education services for the purposes of a business, trade or profession.” Third-party ancillary services are now in scope too. If a provider contracts out accommodation, disability support or anything else that could “influence a student’s decision about what and where to study”, it’s accountable for fair treatment. OfS says providers should retain “overall responsibility via due diligence and monitoring.”

“Commitments” is defined extraordinarily broadly. C6.8c says commitments include “all written, verbal or visual information given to students or anyone with an interest in studying at the provider by, or on behalf of, the provider.” That means open day promises, prospectus photographs, social media posts, verbal assurances from admissions staff, and statements by agents all count. If the campus tour guide says “we have 24-hour library access” and the library closes at midnight, that’s a commitment not delivered.

The consultation goes further than consumer protection law in some respects – the Consumer Rights Act grey list terms become absolute prohibitions rather than merely potentially unfair ones, and the aggressive commercial practices prohibition doesn’t require impact on the student’s decision-making. But there are some significant gaps when you compare C6 against the CMA’s own guidance.

Drip pricing isn’t explicitly prohibited. A university could advertise tuition at £9,250 and separately disclose £500 in mandatory lab fees, £200 in field trips and a £50 graduation fee – and comply with C6, even though CMA209 would say the headline price should be £10,000. Partitioned pricing isn’t prohibited either. That’s separate from drip pricing – it’s the practice of showing the component parts of a price without giving the overall total. A university could list tuition, lab fees, materials, field trips and graduation fees all separately without ever presenting a single total figure, and technically comply.

The “average consumer” and vulnerable consumer framework is missing entirely. CMA207 has a detailed structure for assessing how practices affect vulnerable groups – including by age, mental health, credulity, and the circumstances they’re in. It says traders should have “processes in place to consider whether their practices are more likely to impact negatively on different groups of vulnerable consumers.” C6 mentions the power imbalance generally but has nothing comparable. Given everything we know from APPs about differential impacts on international students, disabled students and care-experienced students, that’s a significant absence.

Prominence and display standards are weak. CMA207 says information is treated as “omitted” if provided in a way the consumer is “unlikely to see it” – and specifies that font size, positioning, colour and click-throughs all matter. C6 requires information to be “clear, accurate, intelligible, legible and unambiguous” but says nothing about prominence, positioning or display. “Overall presentation” as a concept is absent. CMA207 says a practice is misleading if its overall presentation deceives, even if individual elements are technically accurate. It’s perfectly possible for a provider to have individually accurate statements that together create a misleading impression – and C6 might not catch it.

Learning from complaints is essentially absent. There’s no requirement to analyse complaints data, report volumes or themes, feed findings into governance, show what’s changed, close the loop with students, or share data with OfS. Complaints are treated purely as individual redress, not systemic intelligence. Variation terms are underspecified. C6 says unilateral variation requires a “valid reason which is specified in the contract” – but doesn’t say how specific the reason must be, what notice period is required, whether the provider must offer alternatives before varying, or whether non-price variations (stuff like moving from in-person to online, withdrawing a module, relocating teaching) trigger a right to exit. The CMA’s draft guidance on unfair terms goes much further on all of these. “Material components” remains as undefined as it ever was.

Deposits get no standalone treatment. No definition of reasonable deposit amounts, no timescale for returns, no standalone policy requirement. Three PB.2a provisions cover adjacent ground – disparity in retention rights, disproportionate penalties, retaining money for undelivered services – but deposits as a specific issue, particularly for international students subject to UK Visas and Immigration (UKVI) requirements, fall through the gaps. Managing immigration compliance risk by transferring that risk to students doesn’t feel very “treating students fairly”.

And professional indemnity insurance involvement in complaints is entirely unaddressed. For a condition framed around “fairness”, the silence on who actually controls the complaints process from the provider’s side is remarkable.

Faux independence

Meanwhile two independence questions are worth pulling out.

The requirement for “independent advice” on complaints (C6.4a.iii) is thinner than it sounds. “Independent” apparently means independent of the complaint, not independent of the provider. Other university staff qualify. There’s no requirement to fund external advice, no minimum specification for what the advice covers, and no quality threshold. Compare that with how financial services regulators handle it – the Financial Conduct Authority (FCA) requires firms to signpost the Financial Ombudsman Service, an independent body. OfS requires providers to signpost… themselves.

Meanwhile, the entire framework for rights information assumes the provider is the source. The provider publishes its own documents on its own website with its own framing. The mandatory OfS standard wording (on process, not rights) is the only provider-independent element. There’s no requirement for independent or external rights information, no OfS student-facing guidance, and no role for SUs in validating or co-producing. If you think students should understand their rights independently of the body they might need to exercise those rights against, C6 doesn’t get you there.

It’s a missed opportunity. As I argue below, if C6 is going to change anything, SUs have to be part of the theory of change. But the condition gives them no defined role, no obligations, and no resources. Students’ unions are mentioned twice in the whole consultation – once as a possible source of “independent” advice on complaints (“where available”) and once as bodies that could benefit from the publication requirement. No recognition that SUs are the only bodies on campus whose job it is to be on the student’s side.

Unreasonable care and skill

But it’s in “reasonable care and skill” where the most important material in the whole consultation is hiding.

C6.4d echoes s49 of the Consumer Rights Act and creates a principle that OfS will assess by asking whether a provider follows its own policies, behaves constructively, and doesn’t exploit its authority over students. OfS defines the standard as:

…the level of care and skill that could reasonably be expected of a higher education provider, regardless of the eventual outcome for an individual student.

It applies to how a service is delivered, not whether the student got a good result – which means OfS doesn’t need to prove harm. It only needs to show the process fell below what could reasonably be expected.

The “follows its own policies” factor is potentially the most powerful element in the entire condition. Once a provider publishes a policy, that policy becomes the benchmark against which its own behaviour is judged. Deviate, and you’re in breach unless the student agreed or it was an emergency.

That’s quite a tight formulation where policies on turnaround times or PGR supervision are treated as vague guidelines rather than something a student can rely on. And the incentive it creates is obvious – providers will be tempted to draft vaguer policies, because the more specific your complaints process or refund policy, the more clearly you can be found to have deviated from it.

But the real action is in what OfS says next.

The bridge

The consultation says – at paragraph 80 – that the existing quality and standards conditions, ie the B conditions, “may be relevant to reasonable care and skill in respect of the subjects taught.”

It gives two examples – delivering out-of-date course content might be relevant to B1, and having insufficient numbers of appropriately qualified staff might be relevant to B2. Where concerns about care and skill “intersect with other OfS conditions of registration”, OfS will decide which regulatory route to use on a case-by-case basis.

That word “intersect” is doing a lot of work. OfS isn’t saying B-condition failures are only B-condition failures. It’s saying they sit in both frames – quality regulation and care-and-skill – and OfS will choose which door to walk through. But by mapping B-condition failures onto reasonable care and skill, it has rightly characterised them as service delivery failures using the language of s49 CRA.

CRA s49 gives consumers specific statutory remedies when a service isn’t performed with reasonable care and skill – the right to repeat performance, meaning the provider must redo the service at no cost; the right to a price reduction, which could be a partial or full refund; and other remedies under general law, including the right to terminate the contract.

OfS can disclaim making consumer law findings all it wants – and it does, repeatedly. But by characterising B-condition failures as care-and-skill failures using s49-equivalent language, it has conceded the factual premise a student would need for a statutory claim.

I asked this question back in 2022, when the “boots on the ground” business studies exercise was first announced. If OfS finds your business school hasn’t been delivering against minimum quality thresholds, surely a student will be able to argue that the university has failed in its “deliver with reasonable skill and care” duty?

And then they’ll be entitled to the CRA remedies – price reductions, repeat performances, and so on. I said at the time it would be like an episode of Watchdog telling you your kettle was faulty. C6 now implicitly answers that question – and the answer is yes, though OfS would prefer we didn’t notice.

Think about what that means for a case like Regent College London – the provider where OfS found a 44:1 student-staff ratio while claiming 11:1 in publicity materials, out-of-date teaching materials, tutors paid based on pass rates, assessments designed around passing rather than learning, and a virtual learning environment (VLE) that some students couldn’t access for over four weeks.

If OfS characterises those failures as care-and-skill failures, students – or their lawyers – could use OfS’s own characterisation to support consumer law claims. The provider faces both regulatory consequences from OfS and consumer law liability from students.

The remedial gap

But aren’t these matters of academic judgement? The Office of the Independent Adjudicator’s (OIA) boundary is jurisdictional. It asks whether the complaint relates to a matter of academic judgement and, to that extent, falls outside the scope of ombuds review.

The OIA defines academic judgement as “a judgment that is made about a matter where the opinion of an academic expert is essential” – marks, degree classification, research methodology, whether feedback is correct or adequate, and the content or outcomes of a course.

The OIA also says that decisions about “the fairness of procedures”, “what the facts of a complaint are and the way evidence has been considered”, and “whether an academic has expressed an opinion outside the areas of their academic competence” are not academic judgement and can be reviewed.

OfS’s boundary is different. It’s regulatory. OfS doesn’t say that curriculum and pedagogy are beyond regulation. It says that quality can be regulated through minimum conditions – the B conditions – while preserving provider latitude through a principles-based approach.

Before reaching a view that B1 isn’t satisfied “in relation to matters that relate to the curriculum and pedagogy”, OfS says it would expect to draw on “expert academic judgment.” But that’s an evidential requirement about how OfS makes its own decisions, not a jurisdictional exclusion that puts quality beyond regulatory reach.

Those are not the same thing. And the gap between them is where the problem sits.

Something might be outside the OIA’s competence to review – because it involves academic judgement about curriculum content or pedagogical approach – while still remaining, in principle, part of the educational service a court might examine under s49 CRA. The OIA can’t touch it, but the contractual duty of reasonable care and skill still applies. So the remedy exists in theory, but the route to it goes through the courts, not the OIA.

In practice, the OIA does review plenty of course-quality complaints. But the successful ones are almost never framed as “this curriculum is bad” in the abstract. They’re framed as “this course was not what was promised”, “resources and staffing were not adequate”, “practical elements were missing”, “facilities were unavailable”, “materials contained factual errors”, or “the provider failed to investigate the complaint properly.” The OIA is much more willing to engage when the complaint is about delivery, information, operational capacity, or procedural reasonableness than when it’s a pure challenge to academic content.

The strongest published example is a case where a group of distance-learning students complained that their course was too theoretical, lacked promised practical elements, contained factual errors in teaching materials, and suffered from staff availability problems.

The OIA upheld the complaint – but its reasoning wasn’t that it had formed its own academic view about whether the course was too theoretical. It was that the provider’s investigation had failed to engage with the students’ concerns, and the underlying evidence supported them. Validation documents confirmed concerns about challenge for non-STEM students, and some staff had complained they felt unable to support the number of students being recruited. That looks a lot like some of OfS’ “boots on the ground” investigations.

What changes

Once you map B-condition failures onto the reasonable care and skill frame, OfS has effectively said that these are service delivery failures as well as regulatory quality issues. Out-of-date content isn’t only a B1 problem – it’s a failure of the kind of care and skill that could reasonably be expected. Insufficient staff isn’t only a B2 problem – it’s the same kind of failure.

And neither of those is academic judgement. Whether there are enough staff is a resourcing question – a finance director or an auditor can assess it. Whether content is current is a factual question – you compare what’s being taught with what’s current in the field. You don’t need to be a subject expert to determine whether a computing programme is teaching a deprecated programming language or whether a law course is covering repealed legislation. The academic judgement shield doesn’t protect a provider against these claims.

So an OfS finding on quality – particularly one using the care-and-skill characterisation – ought to be highly persuasive evidence in any student complaint about misdescription, non-delivery, inadequate resources, missing practical elements, or poor complaint handling. It’s not self-executing in OIA terms – the OIA may still say that part of what the student is asking it to decide is academic judgement. But an OfS finding that a programme failed B1 or B2, characterised by OfS itself as a failure of reasonable care and skill, is about as strong a piece of evidence as a student could hope to bring.

And if the OIA says it can’t review the quality dimension because it’s academic judgement – well, the s49 CRA remedy is still there. It just means the student has to go to court. Which is fine if you have the resources to litigate for years. It’s not much use if you’re a mature student at a for-profit provider who just wants their fees back because half the lectures didn’t happen.

The condition also says nothing about disability, sexual misconduct, or safeguarding specifically. Disability support is listed as an ancillary service, but there’s no provision about implementing reasonable adjustment plans, no recognition of the gap between professional services recommending adjustments and academic departments implementing them, no connection to the Equality Act reasonable adjustments duty, and nothing on sexual misconduct or safeguarding processes at all.

The developing case law on duty of care – Meagher v Cambridge, Feder v RWCMD – sits outside C6’s frame. That’s another area where reasonable care and skill could do work OfS hasn’t anticipated, particularly given the High Court’s reinstatement of the contract and tort claims in Meagher on the basis that once a university agreed to implement a disability support plan, it had a separate duty to deliver it with reasonable care and skill.

Should providers submit

The consultation proposes that providers won’t need to submit their documents to OfS for approval. The publication requirement is self-certifying – put the documents on a webpage, include the mandatory OfS wording, and you’re done. OfS “may consider” random sampling and thematic reviews. It’s not exactly a sea-change in consumer empowerment, as DK notes.

But we already know from C5 that widespread non-compliance is the norm when providers aren’t required to submit. Having read pretty much every HE provider’s terms and conditions, tuition fees policy or associated online material over the past few years, I’m fairly confident that a significant proportion of providers are not currently meeting even the existing expectations on consumer protection – let alone the new ones C6 proposes.

Contracts contain broad force majeure clauses. Variation terms use “operational reasons” as a catch-all. Half the sector attempts to contract out of liability if staff are on strike. OfS’s position – publish and we’ll spot-check – assumes that providers will voluntarily bring themselves into compliance. The evidence on that strikes stuff suggests the opposite.

A more sensible approach would be to require initial submission of the C6 webpage and key documents – not for OfS approval in the C3 sense, but as a declaration of compliance that gives OfS a baseline. Without that, the first evidence of non-compliance will come from complaints – which, sadly, is the least reliable channel available.

Where SUs fit

The consultation mentions students’ unions twice. That’s a failure of imagination. If C6 is going to change anything – if it’s going to make students feel more confident about their rights, if it’s going to cause providers to treat fairness as a cultural value rather than a compliance exercise – SUs have to be part of the theory of change.

They’re the only bodies on campus whose constitutional purpose is to represent students’ interests, the only ones who can independently validate whether what the provider publishes matches what students experience, and the only ones with both the standing and the motivation to identify emerging patterns of unfairness before they become systemic.

C6 should give SUs a defined role in at least four respects.

On the publication requirement, if providers are publishing contracts, complaints procedures, refund policies and relevant changes policies on a single webpage, SUs should be invited to review those documents for clarity and accuracy from a student perspective before publication – as an approval mechanism.

On rights information, the entire framework assumes the provider is the source of information about students’ rights. That’s the fox guarding the henhouse. SUs should be resourced to provide independent rights information – not as a substitute for the provider’s own obligations, but as a parallel channel that students can trust precisely because it isn’t the provider’s voice. The FCA model, where firms are required to signpost an independent body, is the right one. They do it in Poland. No skies have fallen in.

On complaints intelligence, if OfS is serious about the principle that providers should proactively identify risks (C6.4a.ii), SUs are one of the best sources of early intelligence about where things are going wrong. Students tell their SU things they don’t tell the university. SU advice services see patterns in individual cases that complaints data doesn’t capture – because most students who have a problem don’t make a formal complaint. Requiring providers to share anonymised complaints data with their SU, and to consider SU intelligence about emerging issues as part of their risk identification, would be a low-cost way of making the proactive risk principle mean something.

And on promoting students’ understanding of their rights – C6.4a.i requires providers to “promote students’ understanding of their consumer rights.” The mechanism the consultation offers is publishing documents on a webpage. That’s a necessary but not sufficient step. The people best placed to promote rights to students – to explain what they’re entitled to in language they’ll engage with, through channels they actually use – are SUs. I’ve seen what happens when you put the B conditions in front of student representatives and invite them to judge their on-programme experience against the minimum standards. Their eyes light up. They get animated about improvements. They talk about things universities might not expect. Knowing what they have the right to as a minimum doesn’t make them upset – it makes them feel more able to talk about teaching and learning and assessment.

Students who know where they stand are better partners than students who don’t. Empowered students are less consumerist, not more. And SUs are usually the mechanism through which that empowerment happens – not through publishing a webpage, but through face-to-face conversations with representatives who know the conditions, know the rights, and know how to raise things constructively before they become complaints.

Will it work

But the bigger question is whether all of this will work. Will students feel and act more empowered? And will providers behave better – or just protect themselves more carefully?

On the student side, OfS’s own evidence is pretty damning. 40 per cent of students can’t describe their consumer rights at all. Over 75 per cent say commitments haven’t been fully met. The theory of change here is that OfS publishes requirements, providers comply, and students benefit. But there are at least five well-documented reasons why that theory might not work – the same five reasons why students don’t complain about anything.

The opportunity costs of complaining are huge – by the time you’ve been through the process, you’ve graduated or dropped out. Students are averse to conflict with the institution that holds their degree in its hands. Differential confidence matters – some students are much more likely to challenge a provider than others, and the ones least likely to do so are often the ones most likely to be on the receiving end of poor practice. Fear of retribution is real, particularly for international students whose visa status is tied to their provider. And most students don’t know their rights in the first place.

C6 addresses none of these barriers directly. It gives students rights on paper. But rights remain rationed to those with the stomach or resources to fight for them. Martin Lewis didn’t build his career by giving people rights. He built it by putting people in a position where they felt confident enough to use the rights they already had. C6 does the first thing. It doesn’t do the second.

More significantly, if OfS does start characterising B-condition failures as care-and-skill failures, the rational provider response is to never admit that anything was below B1 or B2 standards – because if it does, or if OfS makes that finding, students have the factual basis for consumer law claims. So the same consultation that’s supposed to empower students may actually cause providers to become more defensive, less transparent, and less likely to acknowledge when things have gone wrong.

That’s the opposite of what C6 says it wants. The draft guidance says OfS expects fair treatment to be “a core part of provider culture, discussed and monitored by senior leadership.” But a culture of fair treatment requires honesty about failure. And C6, by connecting quality failures to consumer law remedies, makes honesty about failure more legally dangerous than it already is.

I promise you that the opposite approach works better. When you tell students clearly what they should expect as a minimum, and you’re transparent when something falls short, and you fix it quickly – students become better partners, not worse ones. They become more creative and contributory, not more consumerist. Empowered students are less likely to behave like consumers demanding outputs, because they know the difference between what they can expect and what they have to work for.

But that requires not over-promising in a world of cutthroat competition, and leadership. It requires OfS to ask itself what is leading to the non-compliance it uses as justification in the first place. And it requires senior managers and governing bodies to say to their legal teams – we’re not going to draft our policies to minimise liability, we’re going to draft them to tell students the truth about what they can expect, and then we’re going to make sure we deliver it. And when we don’t, we’re going to own it.

That’s the real leadership challenge in treating students fairly. It involves, if you’ll pardon my French, not trying to cover your arse. It’s a big ask from a sector whose lawyers, insurers, regulators and sponsor Department have become world class. At doing just that.