Changes to courses and the issue of “consent”

When a student (consumer) signs up for a service, they are entering into an agreement with a service provider that is making a set of promises about that service.

Here we pull together some of the threads from briefings and blogs on the site to outline the rights that students have to be consulted on changes to their provision resulting from Covid-19.

Changes

Almost all higher education providers have had to adapt and change their “offer” both on teaching, learning and assessment and in terms of the wider student experience and services and facilities on campus. Students may or may not be happy with the changes having already signed up for a particular course at a particular university.

Changes likely to result in a change to something called the “material information” that was provided to both prospective and current students.

“Material information” is defined in the Consumer Rights 2015 as “anything that is said or written to the consumer, by or on behalf of a trader, about the trader or the service” and that is then “taken into account by the consumer when deciding to enter into the contract or… when making any decision about the service after entering into the contract”.

These items “can become a binding and enforceable term within the contract”.

What is material?

To help universities understand what might constitute “material information”, the Competition and Markets Authority issued guidance in 2015, and OfS produced a version of it in its guidance in June. This is important because it sets out the sorts of changes that might “count” legally:

• Content of the course. If the modules, or other course components such as placements or field trips, that will be offered have now changed or reduced, or will be delivered in different years, OfS says this needs to be made clear. It expects providers to give applicants clear information about the content that will be delivered in 2020-21 and beyond.
• Length of the course. For example, if there are changes to the anticipated length of the course to take account of particular assessment methods or placements that might be core requirements for the course which can only be undertaken in a normal operating environment, OfS says then these should be explicit.
• How the course will be delivered. This includes the extent to which the course will now be delivered online rather than face-to-face and how the balance between, lectures, seminars and self-learning has changed. OfS says prospective students will be particularly interested in the volume and arrangements of contact hours and support and resources for learning if this is now taking place online and virtually. Asynchronous v synchronous will matter here.
• Cost of the course. Information about the cost of a course should be explicit up front and should not increase once the course has started. OfS says 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.
• How the course will be assessed. There have been plenty of changes here – both on the “how” and the “rules”, and universities need to decide how many of them are to remain changed.
• Award. If there are potential changes to the qualification that is awarded, for example professional accreditation, as a result of the pandemic, a university has to say. And OfS reminds us that if professional accreditation has not been confirmed for 2020-21 then this should be made clear.
• Possible locations. If the pandemic has affected where teaching may be delivered if and when face-to-face teaching can resume, for example because social distancing requirements may mean additional space may need to be made available at a location that is not the normal teaching location for the course, OfS says this should be explicit.

That’s the rundown in the OfS guidance – but there’s several aspects of “material information” not explicitly covered there:

• Entry requirements/criteria (both academic and non-academic), and an indication of the standard/typical offer level criteria – which might have changed.
• Likely optional modules, including whether there are any optional modules that are generally provided each year – a major issue if your university is considering catalogue reviews.
• CMA also identifies non-course-related information that students consider important and is likely to impact on their decision-making – such as “accommodation options” (and presumably the detail of how that will be run) and “the availability of funding and support”.
• This is also about standout features a university may have promoted on Open Day or in prospectuses. If a student has been “sold” them on the on-campus library, the careers hub, peer support schemes, wellbeing services, chaplaincies, clubs and societies, sports facilities or sports programmes, then universities need to clarify if they can’t deliver something they promised, or if access to it might be severely restricted, or will now be online.

Students basically have four rights where anything in the above lists will have changed in relation to September.

1. First they have the right to be kept informed – OfS expects providers to let prospective and current students know about any planned and possible changes and to keep them well informed as circumstances change. OIA says that students need to have as much information as possible about what the year will look like, including what might happen if restrictions are tightened again, so that they can make informed choices.
2. Second they have the right to be consulted – OIA says that providers should listen to and understand students’ concerns and try to resolve them.
3. Third is about options – OfS says that providers should let current students know what options are available to them if they are not satisfied with the changes that have been made; for example, if there is an option for students to take a year out or to transfer to another course. OIA says that providers should “explain to students what their options are if they do not accept the changes”.
4. But fourth is about consent – OfS says that [individual] prospective students should “expressly consent” to changes to the material information above, and for continuing students providers “should seek [individual] consent to this change”. OIA says that it will be important “to get the [individual] agreement of students if significant changes are being made to their courses”.

Note that in each of these cases the rights are individual rather than collective – in other words, students should be communicated with the consulted with individually, and (for example) a vote of students agreeing to changes would not be enough.

What is this stuff about “force majeure”?

Most universities build a clause into their contract that allows it to not deliver an aspect of the service if a “force majeure” event happens. Force majeure is normally defined as an act, event or circumstance beyond the reasonable control of the party concerned. Contracts will typically provide a non exhaustive list of acts that will constitute a force majeure event; a pandemic may or may not be included in this list by some universities.

In March, April and May it was generally believed that a university would be able to rely on a “Force Majeure” clause because of the pandemic and a government impact assessment confirmed this (there are other things a university has to do to be able to rely on an FM clause and if you have questions here do get in touch).

But OiA says that whilst during the initial crisis period providers may have been able to rely on those clauses to avoid legal liability for not delivering on their contractual obligations, in its view “it is unlikely to be reasonable to rely on it in relation to students who are starting or continuing with their studies in the autumn”. This is because in its view “providers have now had time to prepare and plan for the longer-term effects of the pandemic, and so those effects are unlikely to be considered an extraordinary event outside of the control of providers that is preventing them from delivering the service they have promised”.

OfS says something similar. It says that providers now “have the opportunity now to set out in advance of the student starting their course in 2020-21 what it plans to deliver in the current circumstances and what its plans are in different scenarios”. It also says that if a provider claims to be able to exclude or limit their liability as a result of the coronavirus pandemic or otherwise seek to force students to agree to contractual changes, it “is likely to have regulatory concerns”.

What happens if a student doesn’t “consent”?

If a student does not agree to changes, and a university cannot rely on any “Force Majeure” clause, this represents a breach of contract by the university, and under the Consumer Rights Act 2015 this gives student (consumers) rights as follows:

Where a service does not conform to a term included in the contract a consumer can claim a repeat performance and price reduction, and in some cases compensation.

A repeat performance has to be carried out within a reasonable time and without significant inconvenience to the student – and that might not be easy to do or even practically possible. It also may not make sense if a student is complaining about lost access to facilities having already completed their course.

In these cases a student would be able to request a price reduction instead. Price reduction is only available where a student cannot require repeat performance because completing performance in accordance with the contract is impossible, or they have required repeat performance but the university can’t do in a reasonable time and without significant inconvenience to the student.

Students may also claim damages for breach of contract. The general rule is that damages should seek to place the student in the same position as if the contract had been performed. This would normally entitle students to any losses (including consequential losses) that are caused by the breach of contract, that were reasonably foreseeable at the time the contract was entered into, and that could not have been avoided by the student taking reasonable steps to mitigate their losses.

Under English law, claimants are not normally entitled to “disappointment damages” for a breach of contract. However, there are some limited categories of cases where such damages are recoverable. These are where a major or important object of the contract is pleasure, relaxation, peace of mind or freedom from non-molestation. It is potentially arguable that disappointment from loss of learning or knowledge falls within, or is at least analogous to, these categories of cases.

If the student says no

If an applicant or student is not made aware of, or does not consent to, changes to the material information, OfS expects the provider to ensure that those students are aware of the options available to them, such as the right for the students to seek repeat performance, partial refund or compensation.

In a large number of cases, students may not want their course to simply end and so these rights offer a degree of leverage to a student or group of students not happy with announced changes that may wish to argue for a better “deal” going into September.

My university isn’t seeking consent

In some cases some universities seem to be suggesting that they will ignore or defy OfS and OIA advice and rely on Force Majeure clauses. Others are saying that they will only provide information about course changes or are arguing that changes are not substantial. In some cases changes will be communicated but students will only be invited to object or “consent” at enrolment in September, which may be too late.

As such it is important to look at the guidance and remind yourself of the four rights – for students to be kept informed in good time about all changes to the material information; to be consulted; to be given options; and to give consent to those changes – and to consider arrangements a university may be making in this space in that light.

Read more:

• OfS Guidance for providers about student and consumer protection during the coronavirus (COVID-19) pandemic
• A summary of the law and general guidance relating to the impact of the industrial action on students
• Higher education | No more force majeure? A comment on the OIA’s latest update
• OIA briefing note 2: Our approach to complaints arising from the effects of coronavirus (COVID-19) – June 2020