CMA compliance advice for HEIs

The Competition and Markets Authority has published draft compliance advice for higher education providers in relation to consumer protection legislation. It covers the whole of the UK, the whole of the sector and the whole gamut of provision, and sets up a range of potentially important legal battles for the future. Mark Leach takes a look at its highlights.
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The Competition and Markets Authority has published draft compliance advice for higher education providers in relation to consumer protection legislation.

It covers the whole of the UK, the whole of the sector and the whole gamut of provision, and sets up a range of potentially important legal battles for the future.

It focuses in three areas:

Information provision – the need for HE providers to give clear, accurate, comprehensive and timely information to students.

Terms and conditions – ensuring that the terms and conditions between HE providers and students are fair and balanced. HE providers should not rely on terms that could disadvantage students.

Complaint handling processes and practices – the need for HE providers to ensure that their complaint handling processes and practices are accessible, clear and fair to students.

On information provision, they break the info that should be given out into key stages:

The student research and application stage– accurate info on courses, their structure and the fees/costs- including information given in writing and verbally. Information has to be easily accessible – for example, via websites, prospectuses, course and departmental handbooks and at open days. And providers should ensure that students’ attention is drawn to rules and regulations.

At the Offer stage, HEIs should continue to provide important information to students to inform their choice of which offer(s) to accept, and this obligation continues throughout dealings with students. In particular, if any information from the prospectus or other course promotional materials has changed, it is important to bring this to students’ attention.

They also require students being given info on the main characteristics of the course, the duration of the course, and the total price and other relevant costs (or how these will be calculated). “Hidden” course costs may have to come into view. The CMA argues that as this information will become a term of the contract, it will be difficult to change it subsequently – and if HEIs anticipate that some things might change, this should be made clear.

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At the Student enrolment stage the pre-contract information given to students at the offer stage should still be accurate on enrolment, and if there have been any changes to information about the course, etc in any event HEIs should ensure that they tell students about these at the earliest opportunity. Campus moves and dropped modules will come into sharp focus.

As well as all this, the terms and conditions between HE providers and students have to be fair. Not only do they need to be easy to locate and understand, but these sorts of things will be considered unfair:

  • terms allowing an HE provider an unreasonably wide discretion to vary course content and structure or increase fees during the duration of the course;
  • terms seeking to limit an HE provider’s liability for non-performance or sub-standard performance of the educational service;
  • terms giving HE providers a blanket assignment, or a blanket right to receive an assignment, of intellectual property rights (IPRs) from students to the HE provider; and
  • terms allowing an HE provider to impose academic sanctions against students for non-payment of non-tuition fee debts.

This will mark a major change for HEIs used to drafting “get out of jail free” clauses into agreements. For example the following is highlighted as a term likely to be considered unfair:

The University may alter the timetable, location, campus, amount of contact time, how the course is delivered, the course content and assessment of any course, provided such alterations are reasonable. The University may also withdraw Courses before they have started

Finally the guidance argues that HE providers’ complaint handling processes and practices should be accessible, clear and fair to students:

  • Ensuring that HEIs provide students with information about complaints process before they accept an offer of a course.
  • Ensuring that complaints procedures are easily located and accessible to students.

It also argues that where students raise concerns at an informal level, HEIs should inform them that they can make a complaint under formal complaints process if the matter is not satisfactorily resolved. This could represent a major change to the way in which “low level” issues (often routed through course reps) are handled.

Overall the CMA’s interpretation of consumer protection law as it applies to HE represents a remarkable challenge to the existing assumptions about student rights and the prospect is of several legal challenges to come.

The guidance is out for consultation now and closes on the 18th December and further details can be found here.

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