You know that thing where you find a bunch of unopened Christmas presents under the tree days after the big event?
Well, this year we’ve got the regulator to thank. Not only have we found a bunch of little presents in the November board papers, we’ve also found an unopened “big present” – a strategy development paper on student consumer protection. It’s not quite the nice model railway the vice chancellor wanted students to get – and in fact, it’s more like the noisy model monster truck that students will love.
I got obligations
You’ll recall that OfS’ regulatory framework places a number of obligations on providers in respect of the rights of students as consumers, but here OfS is concerned that the “current consumer protection arrangements are not sufficient” to deliver the outcomes OfS wants to see for students. When the board agreed the regulatory framework in January 2018, it “signalled” (we’re not sure who to) that further work would be necessary to understand the benefits of more “explicit requirements” in relation to student contracts, and we already knew that OfS would be “evaluating advice” available to students about their rights as consumers at some point this year.
It’s certainly under pressure to. Jo Johnson had asked that OfS look at this back in July 2017, and an impatient Gavin Williamson used his September missive to pile on the pressure – students “should have clear information on which to base their choices”, students “should receive what is promised to them by providers”, contractual terms should be “clear and fair”, and students should “have access to effective complaints procedures”. As a result he demanded that OfS “review the effectiveness of current practice ensuring students’ consumer rights are supported” with a report on his desk please by February 2020.
At this stage, then, we have a paper from Susan Lapworth, OfS’ Director of Competition and the Register. The committee was “invited to consider the issues and questions” set out in the paper and provide “advice on the strategic development of the approach to consumer protection”, and so while we obviously don’t know what happened in the meeting, the paper is interesting nonetheless.
The frame of the game
There’s an odd bit of framing right at the start of the paper. The regulatory framework, it notes, contains conditions of registration that “relate to consumer protection” and OfS considers that these are necessary to “underpin the delivery” of its regulatory objectives. This framing is important, says the paper, because it means that the consumer protection mechanisms need to work effectively in support of those objectives, “rather than as ends in and of themselves”. It might not be what’s intended, but the casual reader would be left with the impression that OfS doesn’t much care about students’ rights per se – or maybe it’s a way to avoid being dragged into stuff like housing contracts or gym memberships.
That’s because everything has to relate back to the regulatory objectives, and here’s we’re focusing on #1 (“All students are supported to access, succeed in, and progress from, higher education”) and #2 – (“All students will receive a high quality academic experience, and their interests are protected while they study or in the event of provider, campus or course closure”).
OfS gets interested in student consumer rights in relation to choices about higher education – information, advice and guidance – and in relation to their academic experience, by ensuring that the quality of teaching students receive is “as they had expected”, the contact time students receive is “as they had expected”, the academic support and feedback students receive “as they had expected” and the learning resources (IT, library etc) are “as they had expected”.
There are also some aspects that go beyond the curriculum. Both “direct and indirect costs” have to be as students had expected and be fair and transparent; “financial support” should match expectations, support that students receive outside the curriculum should be appropriate and as they had expected, and “social facilities and resources” to which students have access, including for those using non-traditional study routes, should be appropriate and as they had expected.
The interesting question here is what students actually expect in each of those areas, where they get those expectations from, and what happens if the expectation doesn’t match the reality.
For example – a university website that boasts ”there’s lots of support available to you… no problem is too big or no worry too small for our team of experts, and there are plenty of services so you can choose the one that’s best for you” might not be setting an appropriate expectation of its waiting lists to access these services are over a term long.
Similarly, a university boasting that “students experience an open, informal study environment with teachers and students usually on a first-name basis… a more collaborative approach, where students are respected as junior colleagues and their opinions valued and encouraged by more experienced peers” sounds great, but may be hard to access if there’s 300 people on all your modules.
A student enrolled at a university whose assessment policy says that “you will normally receive work back within three weeks” and claims “you will be allocated a supportive personal tutor” might reasonably have rights to redress if all their marks take six weeks to appear, and if they get to their final year having never met their personal tutor.
Much of this sort of stuff isn’t in contracts now, but is certainly implied in prospectuses or university policies – and what this probably points to is providers having to be much more specific about the nature, quality and level of service on offer – both to help students compare, and enable them to enforce their rights if it doesn’t materialise.
So how might all of this develop? Right now, providers are required to provide a bunch of information that is published via Discover Uni. They have to demonstrate that they have had regard to relevant guidance on how to comply with consumer protection law, with the Competition and Markets Authority’s (CMA) 2015 guidance suggested as a source of “relevant guidance”. And providers are required to cooperate with the requirements of the student complaints scheme run by the Office of the Independent Adjudicator, and are expected to have fair and transparent procedures for handling complaints and appeals which are accessible to all students.
But is that enough? OfS is not so sure. For a start, the information currently available to support student choice is “inadequate” because it is not always “sufficiently detailed about the things that matter to students”, and is not always structured in a way that “allows students to make meaningful comparisons” – a particular issue for students from disadvantaged backgrounds. That line about “what matters” to students will end up being key, and could end up meaning anything from details on harassment policies to assessment turnaround time. The sector will cry “yebbut apples and pears”, but students and parents will be pleased.
Next, the contractual relationship between students and providers is “unequal” and OfS continues “to see cases where terms and conditions are unclear or unfair” (a view enforced by the CMA). This means that “students are not clear about what they are buying”, in terms of “quality, contact time, support, and so on”, and are not clear about the “direct and indirect costs of their purchase”. It also means that students are placed at a disadvantage because “terms are designed to favour the provider”. Amen.
Crucially, it is not easy for students to “identify instances where they have not received the service they were promised” and to seek redress. Why, for example, are the NSS questions only framed as questions at the end, rather than expectations at the start? Why wouldn’t we ask that every applicant is told how the standards implied in NSS are fulfilled on application – managing students’ expectations appropriately in the process?
Put simply, if promises are vague and expectations not clearly defined, students won’t know (unless it’s huge) when they’ve been let down – and even if they do twig, haven’t got helpful contracts or an easy way to sue for breach of said contract. Some observers will be horrified at the idea of “tooling up” students whose work is late back or that find two copies of a core text between 200 people on a module in a library; others will worry about delivering “certainty” of delivery with the academic space. Most students would probably feel just a bit more assertive.
So if the current regime is not up scratch, what has to change? The plan in the paper is to ditch the CMA’s work and amend ongoing condition C1 to require providers to comply with OfS’ own guidance, that would set out both mandatory regulatory requirements and broader expectations for providers on consumer protection matters – justified here on the basis that the current CMA work only looks at undergrads.
Signalling a potential frustration that CMA isn’t that interested, “because the new guidance would be published by the OfS we would be able to update it periodically”, the guidance would set “clear expectations about information that providers must make available to students”, the way in which providers must set out their commitment to students (“specifically promoting the use of a student contract as a single document containing a consistent set of information to ensure that students know and understand what they are buying and the direct and indirect costs of this”), contractual terms that OfS considers to be unfair, and the features of a complaints handling process that would operate in the interests of students.
Advertising and expectations is a big theme here, but the document is oddly quiet on the antics of international agents. That Williamson letter called on OfS to get a grip on things in this space – the old “international students at Oxford Brookes that thought they were enrolling at Oxford University” story needs to be an urban myth rather than a real possibility, and middle managers not sleeping at night because they’ve sat on tales of even dodgier behaviour because they need the numbers really do need to wake up.
Frustratingly, there’s also still not much in here about how students might enforce their rights if things do go wrong. The document does hint at “the support students should expect when they use [complaints] processes”, but it is also keen that “the enforcement of consumer protection rights would not fall to individual students to enforce”, but to “the OfS to enforce on their behalf” – which may be setting an expectation of OfS that it itself can’t deliver. As I’ve said before, what students really need is guaranteed access to independent help in the event of a complaint or appeal, as happens now in the NHS – especially in the “long tail” of providers where there’s no SU.
It would also be great if OfS could take a lead on communicating to students the other rights that students enjoy other than those strictly derived from consumer law. The passages in the RF on student engagement aren’t that different to the regime experienced by students across Europe, but tend there to be framed as rights – to be consulted and engaged as a partner in governance. Rights enjoyed by students in relation to equalities legislation and data protection and privacy law matter too, as do the rights that students should claim from institutional regulations and policies. Integrating all that in a way that makes sense to students and their SUs would really help.
But look – overall, this really is an excellent Christmas present for students. Ignore the “consumer” framing for a minute, and what this is really about is giving students better rights and a bit of power. It will change, subtly, the relationship between individual students, universities and academics – some would say for the worse – but if implemented properly by OfS, OIA and universities, would probably put the “student” part of the partnership we crave on a more equal footing. If only OfS could wrap it like that.