When universities have been facing complaints from students over strikes or other forms of industrial action, if those providers have been deploying contractual clauses that excuse them from liability on the basis that the action has been outside of their control, doing so is likely to have been against the law.
When, in the autumn of 2020, many higher education providers failed to seek timely, individual agreement from students about changes they were making to courses – relying instead on collective consultation with the odd student rep and the consent implied by a student re-enrolling – that was probably against the law too.
And where, having carried out a round of redundancies, a provider significantly reduces optional module choice for students with apparent impunity on the basis that such modules are not “core” to the course, that’s probably against the law as well.
They are amongst the nuggets contained in an update to the Competition and Markets Authority (CMA) guidance on the application of consumer protection law to the relationship between students and higher education providers – published handily in time for an Office for Students webinar on the subject which will feature, among others, an address from Gordon Ashworth – Project Director in the Consumer Protection Group at the CMA.
It’s a fascinating list – reflecting both minor changes to surrounding legislation since the first iteration in 2015 and a raft of concerns raised by students over the past few years.
It does however beg the question – if these were all widespread practices during the pandemic and beyond, why has there been little to no attempt to take regulatory action to address them?
You walked into the room, I just had to laugh
The first change comes early on when the guidance adds “how teaching will be delivered” to its explanatory paragraph on the role that consumer protection law plays in the sector:
Given the extent to which HE providers’ funding comes directly from students, this has highlighted particular expectations of providers when it comes to, for example, the information they provide about the degrees and courses available, the choices on offer, how teaching will be delivered, students’ rights as consumers, and how complaints by students will be handled. Consumer protection law is therefore an important aspect of an HE provider’s relationship with students, together with the existence of a supportive learning and pastoral environment within an academic community.
That addition is a fairly obvious reference to the “blended” wars of the pandemic era – which for many remain unresolved given a perception that the promises made to students on how teaching will be delivered remain impossibly vague.
Next CMA adds that “pre-contract” information given to a student about the course – the sort of stuff likely to be “material” in a student’s decision making – should still be accurate on enrolment, is legally binding in the same way as what is said in the contract itself, and for any changes to be effective:
…a student’s express agreement must be obtained.
That certainly wasn’t happening in 2020, and routinely doesn’t happen now.
When it comes to the terms and conditions in a student contract, CMA has now amended the wording of its guidance to require that terms are transparent, written in plain and intelligible language and are legible so that:
…students understand them and understand how they affect their rights and obligations. Students should be able to foresee and evaluate how the terms could impact them now and in the future.
It would be very interesting indeed to test that – I’ve been doing this sort of thing for the best part of a quarter of a century now and I still come across Ts and Cs that give me a migraine.
One of the things that providers have to do is ensure that terms are not drafted in such a way that their effect could be unfair – and that’s about striking a “fair balance” between providers’ rights and obligations and those of students.
The list of examples it offers includes terms allowing a provider an unreasonably wide discretion to vary course content and structure, or a blanket right to receive an assignment of intellectual property rights (IPRs) from students. Also reworded is the clause on non- or sub-standard “performance”:
terms seeking to limit the HE provider’s liability for failure to comply with their contractual obligations, in particular where HE providers provide something different to their contractual obligations, or incases of non-performance or sub-standard performance.
One new footnote in this section points out that even if a provider is operated on a “non-profit” basis (which may include it having charitable status) it will be regarded as a “trader” by reference to the consumer, and this will include when the organisation is carrying out activities that a for-profit organisation is capable of doing, such as the provision of educational services.
That addition suggests that at least a couple of providers have tried it on by arguing that their substantial subsidy from public funds somehow exempts them from having to make or keep promises to students – but a significant case (De Grote – Hogeschool Katholieke Hogeschool Antwerpen VZW) in 2016 found that an HE Provider subsidised for the main part by public funds was still acting as a “seller or supplier. Nice try.
The face you wore was cool, you were a photograph
The section on enforcement reminds us that non-compliance with consumer protection law “could” result in enforcement action by the CMA, a local authority trading standards body or DfE in Northern Ireland – although “could” really does seem to be doing quite a bit of heavy lifting in that sentence.
The new bit tells us that certain enforcers of consumer protection law also have powers under the Enterprise Act 2002 to seek “Enhanced Consumer Measures” (ECMs) in relation to breaches which harm or are likely to harm the collective interests of consumers. These might include redress measures for consumers who have suffered loss from breaches of consumer law; compliance measures to reduce the likelihood of future breaches; and choice measures to give consumers information to exercise greater choice.
It doesn’t tell us if there’s an enforcer likely to do this in HE, because there isn’t one likely to do this in HE (OfS doesn’t count).
There are various changes to the section on action that students might take. In England it says that if students feel that an HE provider is not meeting the OfS requirements of registration, they may report providers to OfS by using its “notifications” process.
Of course, students would need to understand what on earth those requirements are first – which has never seemed like a particular priority for the regulator.
There’s then an important new section on redress rights, especially in relation to “misleading actions and aggressive practices”, which points out that if a provider can’t deliver its side of the promised bargain, the legislation gives students the right to “repeat performance” or (in certain circumstances), a refund. In addition:
If it is impossible to repeat the service or it has not been done within a reasonable time and without significant inconvenience to the student, the student has the right to a price reduction which may in some circumstances be the full amount of the price.
And if an HE provider cannot agree a course of action with the student, the student could take them to court to enforce their rights, where it also:
…remains open to the student to claim common law remedies for breach of contract, which could include damages for loss.
Whether students in practical terms are able to do so is another question altogether.
Significantly, in considering whether an HE provider has provided a service “with reasonable care and skill” CMA says it would expect a court to have regard to:
…the standards of the sector in question, since that may be regarded as the level of care and skill that is generally considered reasonable for providers in the HE sector.
Would a workload model that gives a lecturer 20 minutes to read, mark and write feedback on a 1500 word essay be considered “reasonable”? And how about all those changes providers are making to moderation (the “get out of jail free” card that enables academic judgement to be so sacrosanct) or drafting in lecturers unfamiliar with a programme to get the marking done this summer?
We’d probably need a court case to find out – although that bit does rather put in perspective the sector’s ongoing resistance to a statutory duty of care over mental health and wellbeing, given it would very much establish a set of standard practices in that area:
The CRA “blacklists” some terms, so that they are never binding on a consumer and are automatically unenforceable. These include terms which have the effect of restricting the service provider’s liability if services are not provided with reasonable care and skill.
When it’s all too late, it’s all too late
On the sort of thing that someone might say on an open day – or, presumably what an agent might say who’s trousering commission for bringing a student to a university – there’s some clarification as follows:
When a student is given information about the service (in writing or orally), if it is taken into account by the student when deciding to enter the contract (or when making a decision about the service after entering the contract) it is likely to be treated as a term of the contract and to be legally binding.
And these include:
…terms allowing the trader to decide the characteristics of what is supplied after the consumer is bound.
The small print here also reminds us that when it comes to the duty to ensure students things, whether we’re talking rules, regulations, policies or ordinances, regardless of the document name:
…if it contains terms or notices that students are bound by then those documents will be subject to unfair terms legislation.
This presumably is important if a policy might end up chucking a student off their course. Generative AI and academic misconduct policies spring to mind here.
One thing that has been happening is rounds of redundancies that you would assume were foreseeable prior to enrolment. On this, CMA says:
If you anticipate that there may be changes to the content and delivery of the courses described in this information, including the possible withdrawal of courses, it is important that you make prospective students aware of the likelihood of, and scope for, such changes.
In England Student Protection Plans are also supposed to make those risks clear, but in all the course closure or redundancy rounds I’ve seen, usually don’t – even though failure to do so could be a “misleading omission” under the legislation.
I did not have the time, I did not have the nerve
On the type of pre-course information likely to be “material”, as mentioned above CMA has added:
whether [teaching] will be in person, online or a mix of blended learning
…although the level of granularity required here remains unclear. There’s also some small print on information that should be provided on the general level of experience or status of the staff involved in delivering the different elements of the course, which should strike fear into the heart of those providers that show off top profs on an open day but then deliver all their seminars through PGRs:
This would include general information about the experience or status of the staff involved in delivering the course, for example professor, senior lecturer or postgraduate student.
Oh – and this isn’t just all about courses. The small print reminds us that:
There is likely to be other, non-course-related information, that students consider important and is likely to impact on their decision-making. For example accommodation options and whether accommodation is offered by or on behalf of the HE provider, whether it is on or off campus, and whether such it is guaranteed for first year students or is allocated on a first come, first served basis, or whether accommodation is provided exclusively or mostly by private landlords) or the help available for certain students in terms of funding and support.
Consumer protection law will generally apply to these services too, and providing misleading information, or omitting information, may breach the legislation.
On tuition fees providers will be relieved to learn that the CMA acknowledges that the level of tuition fees for future years may be subject to setting by central government – although that does rather suggest that the CMA has failed to spot that home domiciled fees are regulated via maximums, not actual prices.
And on wider “hidden” costs or charges, CMA now says that a misleading omission could include a failure to provide information both about total tuition fees and any additional course costs up front, in a timely way, or at all.
As well as misleading omissions, the legislation covers misleading actions – and that includes:
…where an HE provider gives a misleading impression about the number of optional modules that will be available.
I’ve lost count of the redundancy rounds that end up reducing the size and scope of the optional module catalogue for those students that remain. That now looks like a real legal problem.
And on dazzling offers of industry placements, service delivery and performance arrangements are likely to include:
… the location of likely or possible work placements, and information about course composition and how the course will be delivered.
I’ve come across a lot of standard offers to support students to find placements, especially on business courses, where students are struggling to find one because of very rapid international PGT expansion. An impression of wide or easy availability that turns out to be a bun fight is likely to be a problem now too.
And something on your mind became a point of view
On that module issue, plenty of websites I’ve seen have little disclaimers at the bottom that also come in for criticism here:
HE providers cannot contract out of this obligation, any wording purporting to do so is automatically unenforceable. Any attempts by HE providers unreasonably to limit liability for inaccurate website information, particularly where this may constitute pre-contract information under the CCRs is particularly concerning.
And a blanket provision in the contract that purports to allow the HE provider to change important elements of the course (or make any changes it wants) would not be acceptable, and is likely to be unfair under the Consumer Rights Act.
Of course, there may be occasions when a provider anticipates that an aspect of the pre-contract information may change, for example validation requirements may be under review. In order to increase the likelihood that any change will be legally effective without the need to obtain the student’s express consent, CMA says providers should:
…make clear to prospective students in the relevant pre-contract information itself what specifically might change; and (b) ensure this type of variation provision meets the requirements of fairness under the unfair terms provisions in the CRA,
In particular it must enable students to foresee the circumstances, nature and extent of any changes. It would not be sufficient for information about possible changes to be added to the “small print”.
Where a provider doesn’t make appropriate provision in the pre-contract information itself for variation, any changes which are made to the issues covered in it are liable to be ineffective “unless the student expressly” (and individually) agrees to it.
And on franchising this new section is both a persistent problem and an important clarification:
Where applicable, you should also provide information on who the student is contracting with. For example, where there are third parties involved in franchise, validation or joint course arrangements or if third parties are responsible for delivering significant aspects of the educational service.
CMA is saying that providers must make it absolutely clear to students, where responsibility lies for the delivery, or aspects of the delivery, of the educational service – which rather rules out the old kneejerk response to complaints about placements by pointing at at externals and saying “oh blame them not us”.
I lost your honesty, you lost the life in you
There’s a selection on offer making that reminds us that if a provider makes an offer and a student meets it, you gotta let them in.
But if a university persuades them to defer:
…then the CPRs, CCRs and unfair terms legislation under the CRA will apply in principle in the same way as for offers for admissions that year.
And a further important point about deferred entry is that CMA considers that the legislation is likely to require:
…key information to be given regarding the HE provider’s policy and terms on deferrals. This would include the potential impact on the prospective student of deferring entry for a year.
If the issue of deferral arises after a place has been accepted then, in its view, the legislation is likely to require information to be given again on any key matters that would be likely to influence the student’s decision to defer admission to the course:
This would include, in particular, transparent information on the level of fees for that year if they could increase, and any other significant potential aspects of the course that you know will or may change during the deferral period.
Where does the end of me become the start of you?
As I said in the opening, widespread during the pandemic was taking a student’s re-enrolment as a signal of consent to course changes. On this, the regulator says:
The CMA would be concerned if an HE provider were to say that a student had accepted or had to accept that there would be a new contract at re-enrolment for each year of study. Such a term could be interpreted or used as a means to bypass the requirements to obtain express consent to changes under the CCRs and/or as a way to vary terms of the contract (see paragraphs 5.18 to 5.33). In the CMA’s view, this may breach consumer protection law.
Students might reasonably ask why a practice so widespread wasn’t subject to enforcement action at its height – but there are long term non-pandemic implications here too, especially in relation to big course changes or course closures and teach-out.
On clarity of terms:
Fair dealing means that HE providers should not, deliberately or unconsciously, take advantage of students’ weaker bargaining position, such as a lack of experience or unfamiliarity with the subject matter of the contract. The requirement not to take advantage is a minimum.
And on non-delivery:
Variation terms which seek to give HE providers a wide discretion to change important aspects of the educational service for unclear, imprecise and potentially broad reasons (such as ‘for reasons outside their control’ without any further explanation) are unlikely to be fair. Such a term is more likely to be fair if it sets out clearly when it may apply and is restricted in scope to limited circumstances genuinely outside a HE provider’s control.
One tactic I saw a lot in 2020 and 2021 was allowing a student to leave a course if they don’t like changes – but CMA says that may not be enough:
…the right to cancel must be a genuine right exercisable in practice without loss or serious inconvenience. For instance, the existence of any practical difficulties in finding an alternative HE provider is likely to be relevant to how ‘genuine’ the right to cancel is.
That does suggest that telling students about changes a fortnight before term starts, or assuming a student could switch courses when they live locally and have caring commitments, would both be a problem.
When partners or suppliers are involved, terms can’t limit liability on the basis that they’re somehow outside of the control of the provider:
Terms which seek to limit liability for problems caused by a HE provider’s suppliers or subcontractors, for example third parties used to support students by providing specialist equipment or training, will also be regarded in the sameway.
And on industrial action, this clarification is very significant:
Terms limiting liability are more likely to be regarded as fair where they are restricted in scope to problems unavoidably caused by factors beyond the trader’s control. The relevant circumstances should be clearly and specifically described, and in the CMA’s view there should be no listing of matters that could be within the trader’s control – for example industrial disputes with the trader’s own employees.
That all means that this sort of wording, which I’ve seen endless times, will have to go:
The University will not be liable to you for any failure to carry out the agreed Contractual obligations, where that is caused by events that are outside its control (known as a ‘force majeure’ event). This includes, but is not limited to staff illness or industrial action, the acts or failings of third parties employed by us, a public health emergency (for example pandemics) or acts of God.
What has happened to the friend that I once knew?
The original work by CMA on universities and students came from an Office for Fair Trading deep dive into non academic debt.
On that, CMA recognises that HE providers have a legitimate interest to collect their debts which are lawfully due – but preventing a student from graduating or progressing onto the next academic year, for a debt which is separate or ancillary to the core educational service, is in its view likely to be disproportionate and heavy handed:
Consistent with the OFT’s report, we consider that HE providers are able to manage their non-tuition fee debts effectively by using alternative and conventional practices for example by: (a) intervening early where students are facing financial hardships, for example, by discussing the source of financial assistance available and agreeing repayment options/plans with students; (b) using commercial debt collection practices; (c) incentivising timely payment; and (d) withholding the service of the same type.
And for the avoidance of doubt:
It is unlikely in our view, to be reasonable or proportionate to withhold graduation or enrolling on to the next academic year if there are outstanding library fines.
Has he gone away?
As I suggested in the introduction, this is all pretty good news for students – if a little too little too late in the circumstances that the changes here describe.
On course changes in particular, providers will be unhappy at some of the clarifications in a context of a flat unit of resource and an inflation crisis. But the law’s the law – and suggests that more thought needs to be given to being able to deliver what was promised for the full duration of a programme even if finances get very tight.
I meet lots of people who bemoan the “consumer” framing – but think of it like this. Should students not have the information, advice and guidance they need to make good choices about what and where to study? Should we deny them the quality of teaching they had expected? Should they not get the contact time or learning resources or academic support and feedback they expected?
Surely all students should know the direct and indirect costs of higher education, understand financial support available, get support outside the curriculum that is appropriate and social facilities and resources are appropriate and as they had expected?
Not my words. Those of OfS’ CEO Susan Lapworth.
It’s enforcement that remains the big issue here – CMA never seems very interested, local trading standards don’t have a clue about HE, the funding bodies in Wales, NI and Scotland lack powers, and OfS is only able to regulate “due regard” for this guidance in provider policies.
That said, in England and Wales, the Office of the Independent Adjudicator will have to review how it approaches some of its judgements – and may need to revise its Good Practice Framework in several places as a result.
In all parts of the UK, it remains the case that work needs to be out in to ensure that students understand their rights – and when it comes to enforcing them, it’s important to consider the massive rise in international PGTs (unlikely to stick it out to get as far as a court battle), or student confidence to challenge the provider that grades them in general.
Should we even depend on a model that relies primarily on individual students challenging a provider for a breach of contract places a burden on students in an undesirable way?
That last sentence is something else that OfS said in its board paper on the issue in December 2019. Maybe it will use that upcoming webinar to update students on its latest thinking on that question.