Understanding OfS’ consumer protection reviews

The Office for Students (OfS) has asked all higher education providers in England to undertake a review of promises made to students this year, and delivery against them.

The request is closely linked to the ongoing and thorny question of student calls for tuition fee refunds, and could have dramatic effects on the way in which potential student complaints about lost teaching and learning are resolved.

This briefing outlines what has been requested, why that is important, and what could happen next. Initial feedback suggests that providers are taking different approaches to the involvement (or otherwise) of their students’ union and the information should assist you in engaging in discussions on your university’s review.

Because the Office for Students (OfS) is an English regulator, the requirement to carry out these reviews is exclusive to providers in England. However consumer protection law applies across the devolved nations and so some of the principles involved in delivering on promises apply across the UK. For advice on how that works, do drop us a line.

For reference, OfS published a press release accompanying the request and a letter to universities detailing what should be done. We looked at the request and some of the background to it in a blog over on the main site, and we ran a webinar for SUs on the request shortly after the OfS announcement.

What is being asked?

The Office for Students (OfS) has said that universities should do all they can to “deliver the teaching” they have promised to students and make alternative arrangements where this is not possible. It says that may include putting on extra lectures, repeating parts of the course, or fee refunds.

Last spring, OfS published guidance on teaching, assessment, student support and consumer rights during Covid-19. Then over the summer it published further guidance for providers about student and consumer protection during the pandemic.

In OfS’ regulatory framework, condition C1 requires a provider 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.

OfS has previously stressed that:

• All providers had to be clear for new and returning students about how teaching and assessment would be delivered in 2020-21, and the circumstances in which changes might be necessary.
• It said that students (prospective and continuing) needed to understand what a provider was committing to deliver in the circumstances last summer and in different scenarios (ie under a lockdown).
• It also said that providers would have to be clear about how this would be achieved, and the changes that might need to be made in response to changing public health advice.
• Crucially, it said that sufficient information needed to be provided to allow students to make an informed decision about whether they were willing to start or continue a course and accept those adjustments, or whether they would prefer to defer until the provider is able to deliver the course as originally advertised, or whether they might choose a different course or different provider.
• OfS said that consumer law meant that providers had to ensure that students “expressly consent” (individually) to any changes.
• OfS has also said that so called “force majeure clauses” (events outside your control) are unlikely to be reasonable in this year’s student contracts, which means that universities are unlikely to be able to argue that they were not able to consult on or seek consent for changes.

Changes

When OfS talks about changes, it is referring to Competition and Markets Authority guidance, which sets out the sorts of “material information” that students might use to make decisions about (re)enrolling on a course.

• Content of the course
• Length of the course
• How the course will be delivered
• Cost of the course
• How the course will be assessed
• Award (inc any professional accreditation)
• Possible locations

Providers were told to let students know about their plans for delivery in different scenarios and changes in public health advice, for example by saying that teaching will be online until government restrictions on social distancing are lifted, or by describing that face-to-face teaching will be delivered following guidelines on social distancing and increased health and safety measures. Providers also had to explain what measures a provider would take in the event of a further lockdown.

It also urged that providers consider students most vulnerable to disruption. That was supposed to include students suffering from coronavirus and who needed to self-isolate, international students, and students unable or less able to access remote learning for whatever reason, together with care leavers, those estranged from their families, and students with disabilities.

The CMA guidance also says that there is likely to be “non-course-related information” that students consider important and is likely to impact on their decision-making – such as wider facilities and services. The guidance says that consumer protection law will generally apply to these services, and providing misleading information, or omitting information, about such services may breach the legal regulations.

OfS was less clear about two things. The first was practical components of courses, some of which might have been offered but were optional in relation to successful completion of learning outcomes; and those wider facilities and services. However although OfS’ focus is on “teaching and assessment”, all these wider aspects form part of the student learning experience and if information on them would have been used by the average student to take an informed decision, it counts.

Obviously, most universities have not delivered what they originally set out to deliver. The question is what students were told about changes last summer, whether students consented to the intended changes, and whether the promises issued at that stage have been delivered on in practice.

Carrying out a review

OfS has now asked universities to assess the extent to which they have met the commitments they made to students in relation to teaching and alternative arrangements last summer. Universities are told to assess:

• whether they were sufficiently clear with new and continuing students about how teaching and assessment would be delivered in 2020-21, the circumstances in which changes might be made, and what those changes might entail.
• whether during the 2020 autumn term students received the teaching and assessment they were promised and might reasonably have expected to receive based on information provided.
• whether current plans for the 2021 spring and summer terms will ensure that students receive the teaching and assessment they were promised and might reasonably expect to receive based on the information provided.

If, having carried out the review, there is a problem, universities are expected to inform OfS. It will, where appropriate, take action as the result of notifications from students and others, and may request further details of provider assessments where it has additional concerns.

Where students were not provided with clear information about how teaching and assessment will be delivered in 2020-21 or where teaching and assessment are not delivered as promised, OfS says it expects universities to actively consider refunds or other forms of redress. OfS expects each university to:

• inform students of any further changes to teaching and assessment arrangements, such that these are broadly equivalent to those previously offered to students within the requirements of public health advice.
• inform students about their entitlement to seek refunds or other forms of redress – such as the opportunity to repeat parts of their course that were not delivered this year – if they have not received the teaching and assessment promised.
• provide students with clear information, advice and guidance about the implications of the changes and the options available to them. This must include clear signposting of the route to complain or seek redress.

OfS does not have legal powers to require refunds to be paid. OfS is not a body empowered to enforce breaches of consumer protection legislation – this power rests with the courts, the Competition and Markets Authority and local trading standards officers.

A few other details:

• OfS does not proscribe in the letter the format or level of detail expected in the review
• It does say that the review should be carried out in the first half of this term, which implies completion by mid-February
• The letter does not say that SUs or students have to be involved, although it would hard to justify not involving student representatives in this type of exercise
• OfS expects the university’s governing body (ie Board of Governors or University Council) to receive the review

What are universities being advised?

We’ve had a look at a legal note from Eversheds and pulled out some of the key things that universities are being advised to consider when undertaking these reviews.

Eversheds reminds universities that consumer law is holistic and applies to “all information (written and verbal) that’s provided by or on behalf of providers to prospective and registered students” including at the pre-enquiry/research, application/admission and contract-formation stages – and to students during the performance of the contract itself.

It says this includes marketing and recruitment materials, course information, fees information, accommodation information, policies and procedures, and information about learning and pastoral support services.

It also reminds universities that under the Consumer Protection Regulations 2008, providers are under a general obligation not to omit, hide, disguise or delay any information that the average consumer needs to make an informed decision as to whether to enter into a contract or not and to make decisions during the life of the contract.

The Regulations also prohibit providers from misleading consumers as to their consumer rights in the context of their student and accommodation contracts at any time. Failure to comply with the Regulations can result in criminal sanctions being imposed in addition to civil liability.

Should students and the SU be involved?

As we note above it would be hard to justify running a review into whether universities were “sufficiently clear” with new and continuing students about how things would work this year the circumstances in which changes would be made, and what those changes might have entailed, without involving students and their representatives.

However, doing so may draw compliance issues to the attention of students. Eversheds says that:

The risk of complaints and claims for accommodation and tuition fee refunds and for related compensation escalating into more widely spread campaigns and rent strikes is a very real one. In the age of social media, events can move very swiftly, group claims can quickly gather momentum and the reputational risk for providers if the situation is poorly handled can be huge.

It also says that providers should keep in mind that, in undertaking their reviews and preparing and implementing management plans, they will be creating documents which may be subject to later production.

SUs will want to discuss the format, process and nature of the review with their provider, along with what it will include, and whether students and reps will be involved. You may also want to contribute to the review by gathering your own feedback from students on whether they feel the university was “sufficiently clear” with them about how things would work this year.

Hidden costs

This bit is really important. In CMA’s view, it is “important for students to have full information about courses and their costs up front”. When they talk about costs they define course costs both as tuition fees and other extra costs students are likely to incur, including examples such as field trips, equipment, materials, bench fees or studio hire. In other documents they say “for example field trips for geography or geology courses or studio hire for design courses”.

What is not clear is whether the costs of participating in a course that a student might face as a result of the campus being restricted (ie home heating, purchase of IT or seating etc) would represent this type of cost.

This exercise being carried out by UCLAN SU is gathering information from students on the extra costs they have faced and would help provide evidence on hidden course/participation costs into any review.

What if the university finds a problem or problems?

The law provides for two special remedies which are available where a service does not conform to a term included in the contract – repeat performance and price reduction.

These remedies are only likely to be available to the extent that the changed delivery does not fall within the scope of a valid force majeure clause, or the disruption constitutes a variation outside the scope of any valid variation clause.

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 is in breach of the requirement to do it within a reasonable time and without significant inconvenience to the student.

Universities may not be able to make up for lost teaching/services/opportunities and it may be difficult for them to do so within a reasonable time as the end of the academic year is approaching. In these circumstances, if students requested repeat performance the university would therefore be unlikely to fulfil the requirement to perform within a reasonable time and without significant inconvenience to the student. Students would therefore be able to request a price reduction instead.

There’s a QAA briefing on the sorts of changes that universities might be thinking about making to courses with practical elements on the site. Remember – the QAA has a focus on the components that a student needs to successfully meet the learning outcomes of a course. That is likely to be different to (although there will be an overlap) components that students have generally been “sold”.