Applicants and students need clarity about next years’ provision

OfS' Susan Lapworth introduces the latest regulatory guidance on student consumer rights during the Covid-19 pandemic.

The second half of the 2019-2020 academic year has been like no other.

The human cost of coronavirus has, of course, been devastating. The pandemic has had a profound impact on every aspect of our society. For students, it has meant adapting quickly to new ways of working, often in challenging circumstances. Universities, colleges and other higher education providers have sought to deliver effective course content online, while providing study and pastoral support remotely and to those students who have remained on campus.

That is not to say provision will have been uniformly good across the sector.

Where current students have concerns about changes to teaching and assessment arrangements, they are able to use their provider’s processes to raise those concerns and escalate them where necessary. As the regulator, we often receive notifications from students who want to tell us that something has gone wrong. We’ve been talking to providers about these notifications and acting where we have unresolved concerns. We will continue to do this in a way that prioritises the interests of current students while recognising the huge and understandable disruption that the pandemic has wrought for providers.

2020-21 will also be a year like no other

Attention is now beginning to turn to the autumn. The OfS has consistently called for applicants to have clarity about how their course will be taught when the new term begins. Today, we have published new guidance for providers about student and consumer protection. We’ve also updated the information on our website for students. Our guidance sets out expectations in a way intended to help providers as they navigate complex issues in a challenging environment. And the information we publish on our website will help students understand the framework within which they can raise any concerns.

It’s important to explain our role here. Condition C1 of our regulatory framework says:

The provider must 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.”

This means that it’s not for the OfS to decide whether or not a provider has breached any aspect of consumer protection law, except to determine whether there has been a breach of our regulatory requirements. All universities, colleges and other higher education providers should therefore seek their own legal advice to check they remain compliant with the law.

A need for information

There has, rightly, been much debate about the shape of courses next term. Some providers have already published plans for how they will operate. We don’t mandate how that should happen, but we want to make sure that students are given detailed information about these plans in a timely and helpful way. Both prospective and existing students need to have clear information about: the content and length of the course; how it will be delivered and assessed; tuition fees; and location where that is different to the usual location of the course.

In requiring providers to make this information available we recognise that they are wrestling with difficult issues and balancing a range of complex factors. However, they will be planning for a range of scenarios and it’s right for students to understand these and to be properly informed even if the details of the final shape of courses have still to be agreed. It’s also right for students to be able to find this information easily on course pages rather than hidden in virtual small print.

Those universities and colleges that have already announced their plans seem generally to be planning remote lecturers with smaller group teaching and practical sessions taking place in-person with suitable social distancing in place. We expect that this will be mirrored in many future announcements, but each provider needs to look at its own circumstances and ensure students have clarity on what to expect while the current restrictions remain in place.

Managing risks

We’ve also set out in our guidance plans to consult on additional student protection measures where there is a material risk that a provider will cease trading. In the meantime, we’re absolutely clear that we have regulatory tools we can deploy quickly where a provider is faced with a material prospect of closure. This could include requiring the provider to produce and implement a detailed market exit plan which sets out comprehensively how the interests of students would be properly protected so that any exit could be managed and orderly.

In issuing our guidance today we recognise that universities and colleges have responded to government advice in the face of a public health emergency with a speed and on a scale that has not been seen before. The job of the OfS in these extraordinary times is to regulate in a way that supports providers to make good judgements about delivering high quality courses for their students. For students starting their course this autumn, this means being clear about what they can expect at the point they make a final decision about what and where to study. But we must also be clear about how students’ interests should be protected and stand firmly on their side if something goes wrong.

3 responses to “Applicants and students need clarity about next years’ provision

  1. Thanks to WonkHe and Susan for posting this. It is of course right and proper that HEIs inform current and prospective students of what’s changing, and tell them what their options are if they are not satisfied with changes.

    What I’m struggling with, having read the guidance, is the parameters of when OfS believe a change is or is not appropriate. There are two particularly thorny points, which I’d welcome clarity on from OfS (or other colleagues), particularly given that operational planning is already well underway…

    – Paragraph 52 of the guidance refers to the idea of ‘consent’ for changes affecting current students. What does consent mean? Does it mean that (all?) students have to agree to changes? (Even those on mode of delivery?). Surely not, as paragraph 53 says that we should give options to students if they aren’t satisfied, which would imply some of them are not going to be. So unpacking of the word ‘consent’ would be helpful.

    – The guidance is clear that changes based on health & safety and the need for social distancing are appropriate. That is helpful. What is not helpful is that there is no clarity on what this means in practice. Two test cases may help here:

    A) Let’s say I teach a seminar for 21 students. Current students are signed up and are expecting a weekly, campus-based seminar. But I can only fit 7 students in a room with social distancing. I thus need to teach the seminar 3 times, splitting the group. Is it acceptable for me to only teach the seminar on campus every third week, to alternating groups? (Supplementing with online resources). Or is OfS suggesting I need to triple my workload?

    (And what if my university can’t find the rooms to teach three times a week? Demands on the estate just increased by three, because of social distancing).

    B) Health and safety decisions are perfectly proper, but also costly – in staff resource (see above) and pure money. This extra cost is coming at a time of increased financial pressure. So is it OK for me to, say, cut my module for current students (provided, of course, I tell them and give them options to object), to save resource so that I can deliver a better all round experience for them? Or because I need the extra time to deliver social distancing in my other module (see above)?

    Thanks for any help you can give. (Personal message, not institutional message).

  2. David it may be that OdS and/or legal experts come back for you on these – and I do address some of these aspects in my blog on the site.

    On consent the original CMA guidance does say that changes to pre-contract information require the express consent of the prospective student so it’s not a surprise this is in there.

    You may find Smita Jamdar’s thread on this helpful
    https://twitter.com/smitajamdar/status/1270633538900168706

    And my little follow up!
    https://twitter.com/smitajamdar/status/1270633633087438849

    The question on health and safety relates of course, both to whether “force majeure” clauses might be invoked and in relation to the linked issue of OfS’ definition of changes being imposed because of the pandemic. There is case law on FM clauses that makes clear that just because something has become harder to do or more costly (even financially ruinous) to do doesn’t mean that that would allow a provider to invoke an FM clause. Whether those sorts of decisions of the sort you identify would satisfy OfS’ definition is another question!

  3. Thanks for this Jim. I agree with Smita that the issue of consent is confusing (and unworkable in practice, given diversity of student opinions). What’s more confusing is that the very fact that OfS insist that providers tell students what their options are if they are unhappy with proposed changes sort of suggests they see that (not all) students will be consenting (or otherwise the change couldn’t happen). So it would be great if someone at OfS could clear this up.

    And to be honest, if you reading OfS, it’s a bit late in the day to be implementing this stuff. We needed this a month ago.

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