Jim is an Associate Editor at Wonkhe

If you were buying a £500 washing machine “you’d have more protection than you do currently”, when you’re “spending 100 times that and spending three years doing a degree”.

If you were spending tens of thousands of pounds on anything else – “be it a house, an expensive car or a multi-year contract for another service” – then you’d rightly “expect to have recourse”. This is about “fairness, pure and simple”. Students are “entitled to expect the same consumer rights as the rest of us when they enter into a contract with course providers.”

It would be easy to look at those quotes and mistake them for those of NUS President Zamzam Ibrahim, who used the launch of her “complaints chain” campaign last week to lament that students were going to be “empowered consumers” but actually, “when something like this happens, we feel we’ve got less rights than if we’d booked an Airbnb.”

But in reality, the quotes at the top of this blog aren’t from Zamzam at all – they’re from the Department for Education. Gavin Williamson, just last September, used the occasion of the Universities UK conference last year to re-announce a Summer 2017 Jo Johnson policy on student contracts that successor Sam Gyimah subsequently reminded OfS about in both January 2018 and January 2019 – only for OfS to repeatedly find other things to do.

Last Autumn, Gavin promised that:

Students can reasonably expect that what they are being promised as part of the course will be delivered. They must be able to weigh up what is being offered at each university, based on clear contractual terms and if what was sold is not met, then there has to be a transparent and comprehensive complaints procedure to put things right.

So are we any closer to Gavin’s wishes?

Deferring a decision

UCAS has announced that there are currently more applicants holding a firm offer to start a course this autumn than the equivalent point last year – and fewer people accepting an offer for a deferred place.

Cue trepidatious jubilation around the sector – maybe there won’t be a raft of deferrals or drop outs after all. Universities Minister Michelle Donelan even said the figures were “testament to the unwavering efforts of our higher education sector during the pandemic”, adding that “many” universities had set out “clear plans” for how in person and online teaching will continue next year.

Let’s unpack that a little. First, it doesn’t look like any university has actually set out “clear plans” for how their “blend” of in-person and online teaching will actually pan out next year. We are still, unless I’ve missed something, at the “mood music” end of this process – universities are signalling intent rather than writing to students with detail on how the “material information” might have changed.

This isn’t surprising. It either has been or still is assessment season. The country is still in lockdown and the schools are still shut. Most of us are knackered. It would be a miracle if, in the middle of all that, academic staff had managed to rewrite courses into their university’s bright new blended future – and we’d managed somehow to clarify what can and can’t be timetabled and what facilities can and can’t be offered, when 2m has only just changed to 1m and it still takes half an hour to get into Sainsbury’s.

Even when parcels of contact in vast rooms with perspex screens and additional masks are made available, there are dilemmas. If students are hankering to be on campus, are we sure academic staff will agree it’s safe? Who’s going to take all these tutorials now we’ve laid off sessional staff and cuts the teaching time of PGRs? And because national bodies talk about online alternative “equivalence” everyone seems to be trying to work out what an “hour” of contact looks like online – without yet being able to agree.

From everything I’ve seen, the TL;DR on synchronous v asynchronous is that from a “learning gain” (remember that?) point of view, asynchronous edges it – but this is different for different students, has to be high quality (not “here’s an hour’s worth of reading”), has to be appropriate for the learning objectives and it does worse on (surprise surprise) community/belonging and “value perception” (this is the same theory that says that people “value” PDFs more than word documents even if the content is identical). So what do you do?

Noise or signal?

The danger of course is that the UCAS figures at this stage are a false signal. That lack of deferral or drop out so far is much less likely to be students responding to what Donelan calls “clear plans for how in person and online teaching will continue next year”, and much more likely to be students not having yet been put in a position where they could respond to those plans. When they get that letter inviting them to “consent” to changes which might amount to a very different experience – will they stay on/in?

From a consumer protection perspective, that creates a couple of fascinating dilemmas for universities. First, there’s the temptation – despite CMA, OfS and OIA advice on giving students early granular clarity – to give them vague mood music and the detail as late as possible. Some will reason that the later a student leaves it, the more likely they are to feel “locked in”.

Second, there’s the temptation – which I looked at on the site last week – to say you’ll do all you can to deliver X but then to blame deviations from that on the prevailing public health guidance – partly as a way of avoiding offering the kind of clarity that OfS has suggested.

The force issue

But there’s a third conundrum here. In the first part of the pandemic, the working assumption from all and sundry has been that forcing though emergency changes to the student experience ”offer” – even if some students objected – was likely to be legally justifiable if a provider had a “Force Majeure” clause in the student contract.

There’s debate about whether everyone’s FM clauses actually covered a “pandemic”, a debate about whether all the changes that were made would be justifiable, another on whether the FM clauses universities have are fair and give them too much power to change things, and another on the extent to which providers could rely on those clauses if their efforts at mitigating the impacts of changes weren’t up to snuff. But generally, the assumption has been you could say to a student “Sorry – we’ve had to make the following changes because of lockdown. Here’s some alternative learning which we think is of high quality”.

The big question has been whether that justification would last. FM clauses are designed for temporary things – flashes of lightning, floods, strikes, that sort of thing. If a university isn’t able to say “yes but pandemic”, it means that it could well be in breach of contract for continuing students unless it gets individual and express consent from each of them agreeing to those changes.

And if they don’t – and a university can’t rely on that FM clause after all – it’s a breach of contract. And that’s when things get fun. Because under the Consumer Rights Act 2015, students not getting the service (or getting an unreasonably delayed service) gain a statutory right to a price reduction, a right to require the university “to perform the service again”, “within a reasonable time” and “without significant inconvenience” – and a right to claim damages.

Consent matters

All of which takes us back to that issue of consent. “Material information” is information that students need to make an informed choice or decision – both about whether to go to university, which one to go to and which course to choose. OfS says changes to material information that has been provided to prospective students should be communicated to them before an offer is accepted, and they should expressly consent to those changes. Similarly OfS says that current students should be getting clear and timely information about changes to material information and should “seek their consent” to this change.

Morally, this is of course fair enough. There’s a whole bunch of reasons why you might want or need to defer, or drop out, or change provider next year once the reality of September becomes clear. It might be related to your health, or your priorities, or the type of support on offer, or who’s offering socially distanced sport, or the success of an online pivot – or just a whim. A whim is fine too.

Why would a provider need to get “express consent”? What OfS is effectively saying here is that it doesn’t think that “Force Majeure” clauses really hold in September – and OIA has gone further. Its new note says even if a provider might have been able to rely on this type of clause during the initial crisis period, “in our 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”. 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”.

Choose a door

And therein lies the ultimate dilemma. If you’re a university that doesn’t accept that interpretation, you run the risk of the OIA finding against you for the tiny handful of complaints that might end up with it – and/or OfS or CMA taking some kind of regulatory action. And that might be enough for you to think “let’s get express consent from every student because OfS and OIA say so”.

But I hear that other interpretations are available. I am told that some are weighing up options. Because if, as a university, you accept the OfS/OIA interpretation that you can’t rely on “Force Majeure” and have to get permission, then if you then don’t get it, then you’re in breach of that contract with that student.

And once you’re in that breach of contract, that means a statutory duty to offer students remedies like a repeat performance “within a reasonable time” and “without significant inconvenience”, or if not possible a price reduction, and/or damages – including for consequential losses. You know, to students who may well, for example, have already signed a housing contract. It’s all summarised here.

All of that might – as a pure hypothetical – have led you to get legal advice that advises you to stress that changes in September are still part of the emergency, that your FM clause still applies, to prepare to go into legal battle with OfS if it says anything, to plan to “deal or no deal” settle with any student complainants before they get to the OIA, and to resolve that whilst of course you should chat to the SU and be nice about it, in the end you both can and should force changes onto students this September whether they accept them or not.

Your move, Gavin. Do students still deserve their “consumer rights” or not?

2 responses to “Changing course? Seeking consent isn’t as simple as it looks

  1. What a waste of public money it will be if individual institutions take ‘legal advice’ from a variety of expensive lawyers to try to reset their contractual relationship with students in the institutions’ interests. I have read a couple of recent legalistic contracts recently and they are frankly appalling. Since 1992 I have been advocating a standard form of contract, last published with a well-known colleague in 2012, new version shortly.. Now is the opportunity to finally go where no one has gone before and, in agreement with OfS, NUS, OIA, etc, sort this one out for good. Period, as our US friends say. And yes, happy to help!

  2. Dennis and I will shortly be making available relevant parts of our Chapter 12 on ‘The Student Contract’ in Farrington & Palfreyman, ‘The Law of Higher Education’ (2012, second edition) – as now updated for the 2020 third edition due later this year; the ‘relevant parts’ relating to the application of consumer protection law to the Contract and also taking into account the June 2020 material from the OfS, the OIA, and the NUS (the first referring to the CMA 2015 guidance) that Jim’s article refers to above. We hope WonkHE will publicise its availability and that it will assist colleagues by providing a broad awareness of the relevant legislation for when engaging with the HEI’s lawyers on specific issues.

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