Jim is an Associate Editor at Wonkhe

Higher education has been through tough times for the unit of resource before.

When I enrolled onto my Cultural and Media Studies course in the mid-1990s, I was ushered into a lecture theatre to be told all about an exciting new “interdisciplinary first year” that the university had developed.

I didn’t know until weeks later that we were being plonked onto humanities modules with spare capacity being run by staff that had refused to take voluntary redundancy that summer.

It turned out OK – the unexpected first term geography field trip gave me some friends that I’d struggled to make between working and studying, and I particularly enjoyed a random Philosophy module being run by a man who made clear in the first lecture that if we purchased his text book there and then, we were pretty much guaranteed to pass the module. His “assistant” (a PhD student) duly wheeled in the books.

One particularly enjoyable lecture that I can just about remember without the aid of a camera phone or his acetate sheets concerned Theseus’s paradox – which questions whether an object that has had all of its components replaced remains fundamentally the same object. In the story, the ship of the mythical hero Theseus is preserved by replacing decayed planks with new, identical ones, leading to a debate about whether it is still the same ship.

It was replaced and re-promoted in the popular imagination in my second year, in that classic Christmas special episode of Only Fools and Horses that featured Rodney and Del Boy in Batman and Robin suits (watched live by some 21m people). In a scene in Sid’s café, roadsweeper Trigger tells the pair about a medal he’s received from the local council for saving money – by using the same broom for twenty years. He then reveals that in that time it had actually had 17 new heads and 14 new handles.

Beyond that, students of the 2000s were likely introduced to the idea via the Sugababes, a british girl group formed in 1998 whose members each left and were replaced over the ensuing 11 years, just like the planks of Theseus’s boat – only for the original members to reunite under a different name in 2011 with the “original” Sugababes still in existence. See also Bucks Fizz, and the difference a (David Van) Day made.

Of course back in 1995 I could probably have just understood the idea through the organisation of the course itself. That first year was good, the same number of credits was being delivered, it didn’t affect my award, and it was all being delivered in the same satellite campus that I’d rented a room near to. But had I not have wanted to study geography and philosophy, there’s no getting away from it. It was not the course I’d signed up to.

A game of Chessington

The Consumer Rights Act 2015 is a problematic set of protections for students for all sorts of reasons. It invokes echoes of wider marketisation, it promotes a framing that suggests students will make demands beyond their effort or expertise, and it feels like a metaphor better suited to the purchase and return of goods than to a long-form relationship where students are educated.

It feels especially uncomfortable because of confusion over the “product“ – even when the “service” is carried out effectively, it can result in a student not getting a degree (or at least not the grade they wanted). And the need to “sell” fuzzies up the blame game for said failure, because a university will argue that its admission tests and quality of support should have meant that the student succeeded, but for a student’s effort; while students can counter that their failure was rooted in not being selected, supported or graded appropriately.

That universities retain the “academic judgement” card legally when almost every other profession has lost theirs – especially when external examining feels more opaque and thin than ever – is remarkable. But in many ways, the quid quo pro on reserving the right to disappoint students on academic outcomes is rooted in more certainty on academic experiences. When you sign up for a course, you’ll get what you were promised.

Considerable overzealousness has surrounded university-level bureaucracy over the CRA since the middle of the last decade, where sometimes even minor changes to individual modules seems to require endless forms to fill in. If where you work requires that changing the font or the case studies on a set of slides needs several committees to meet and multiple levels of approval, let me assure you now that this is not “CMA rules”, this is nonsense.

The way it works is like this. If you book to go to Chessington World of Adventures and the weather’s bad, that’s unlucky. If they’ve changed the theming on your favourite ride – especially if it’s in response to feedback – that’s progress. If on the day a couple of rides are out of action, especially for safety reasons, that’s bad luck.

But if you arrived and 15 rollercoasters was now four, and the Zoo which was supposed to have a hundred animals in it now has ten, there’s a problem. The changes to what you were promised – at least those that were inside the control of (or able to be predicted by) Merlin Entertainments PLC – were material.

Modelling the contract

In their third edition of The Law of Higher Education, Dennis Farrington and David Palfreyman set out a “model” student contract that operationalises the law on “delivering what you promise” in a long-term educational service contract as follows:

Consistent with the idea that higher education is a dynamic, self-developing and self-renewing process, you should as far as possible be offered those learning opportunities which you reasonably considered you were bargaining for when accepting an offer of a place at [the university], based on what you have learned about [the university] from reading its prospectus and other published material, or viewed on its official web pages.

It covers off changes to courses af follows:

In practice, courses, modules or units which are offered to you may differ from those originally advertised, due to advances in the discipline, staff changes, or changes in public funding. What you can be sure of is that [the University] will make every effort to ensure that what you actually receive is at least that for which you originally applied, and reasonably believed you would be getting.

And then sets out students’ rights when that can’t be done in this way:

In the unlikely event that [the University] cannot provide the course for which you enrolled, the University will help you to find alternative provision and compensate you for financial loss directly attributable to this change as noted later.

You’ll see that the Farrington and Palfreyman confection effectively navigates the Theseus paradox – the planks can be changed, the broom handle can get a new grip, and Mutya can become Amelle (as long as you weren’t specifically promised Muyta herself) – you’ll get what you were promised.

But I’ve read the Ts and Cs for taught programmes for pretty much every university (and plenty of other providers) in the UK – and the problem is that pretty much no provider in the real world has terms worded in that way.

Instead contracts appear to routinely give a university much more scope to vary the terms – allowing universities to make judgements that a change is immaterial when it isn’t, not warning students about or enabling students to foresee the circumstances, nature and extent of potential changes, and giving universities the power to impose changes without consent.

And the real problem right now is universities want – and arguably need – to make changes that are more dramatic, more rapid and more “material” than any suggested in the ship, the sugababes or the broom.

Not only, for students, are the seas more choppy and the road filthier than it was before – but changes to programmes and wider experiences are resulting in smaller ships, shorter brooms and tribute acts that are more likely to grace the stage at a Freshers’ Ball than Wembley Arena.

Eventually, it ceases to be the same course.

A balance of power

The Competition and Markets Authority – which has the job of interpreting consumer protection law for different sectors in different circumstances – would struggle to be clearer when it comes to taught programmes:

  • It has a long list of things that a student is likely to regard as “material” in their decision making – including the number and type of contact hours that students can expect and whether these will be in person, online or a mix of blended; details about the general level of experience or status of the staff involved in delivering the different elements of the course; method(s) of assessment; and location of study – yet plenty of providers don’t supply it, or don’t define some of those elements as material in Ts and Cs.
  • It includes “other, non-course-related information” that students consider important and is likely to impact on their decision-making – yet plenty of providers explicitly don’t count these facilities and services as things that are material in Ts and Cs.
  • It says that “students [should be able to] understand” any clauses that allow things to be varied, and that as such they should be able to “foresee and evaluate” how those terms could impact them now and in the future. But plenty of those clauses are over-reassuring or written in baffling legalese.
  • It says that where providers anticipate that there may be changes to the content and delivery of courses – including possible withdrawal, it is important that providers make prospective students aware of the likelihood of, and scope for, such changes. Given the Office for Students (OfS) has been warning of “over-optimism” in financial and student numbers projections for a couple of years now, the inevitability of a lot of the redundancy programmes look like “misleading omissions” at the student end.
  • It says that providers cannot contract out of this obligation, any wording purporting to do so is automatically unenforceable, adding that attempts by providers unreasonably to limit liability for inaccurate website information, particularly where this may constitute pre-contract information is “particularly concerning”. But it doesn’t stop a lot of Ts and Cs trying.
  • It says that from the point that an offer is made right through to graduation, “pre-contract” information given to a student about the course should still be accurate – and that for any changes to be effective, a student’s “express agreement” must be obtained – even though many contracts offer up only vague collective consultation.
  • It says that it would be concerned if a 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 – because such a term could be interpreted or used as a means to bypass the requirements to obtain express consent to changes and/or as a way to vary terms of the contract. Yet plenty still do just that.
  • It says that the right to cancel if there are material changes must be a genuine right exercisable in practice without loss or serious inconvenience – and that the existence of any practical difficulties in finding an alternative provider is likely to be relevant to how “genuine” a right to cancel is. Yet the right to cancel – without compensation – is exactly what is offered up as a solution if changes are made in most contracts.

The point is that the terms and conditions in place in most universities around the UK were not written around the circumstances those universities now find themselves in – they assume that while a university or course’s size and shape might changes slowly over time, that that can be done in a way that will not materially impact a given cohort of students.

It’s clearly not enough to argue that inflation, the freezing of fees or changes to immigration policy were somehow not predictable and so outside of the control of providers. It means that the Ts and Cs that are there appear to give too wide a discretion to change important aspects of the educational service for unclear, imprecise and potentially broad reasons – and so are unlikely to be fair.

Even where terms are fair, they are often being ignored, sidelined, or interpreted in a way that suggests that on balance, universities see more risk in not making lots of staff redundant than the chances that a student will complain, sue, raise a “notification” to the regulator, or otherwise attempt to enforce their rights – if indeed they even know about them.

A mixture of “we’re doing our best” and “this is the least worst option” pervades the decision making, comfortably ignoring that the best may still not be legally good enough, or that the least worst option may still be unlawful.

Students, often through assurances given to their students union, are advanced suggestions that they won’t see any real difference – the usual pitch of “efficiency” used by anyone attempting to spend less on a service. There’s likely a bit of that, but on the scale we’re seeing now, if it was true then senior managers should hang heads in prior waste shame.

That’s if they get those assurances. In our conversations with SUs, we hear often of representatives routinely excluded from discussion of course closures or changes, of SUs left off decision making bodies on the basis of “confidentiality”, and of feedback (and activity) being framed as only valuable if it improves recruitment or reduces legal risk.

Even in providers that in better times would promote pride in their partnership with students, once the cuts come it’s clear who is regarded as the adult and who’s patronised as the child.

Rights and redress

The vexing thing is that at least in England, the regulator knows all of this – and was warning about it five years ago when the seas for its provider ships were much less choppy. Back then Susan Lapworth, who was its Director of Competition and the Register at the time, argued in a paper to the OfS Board that it is not easy for students to identify instances where they have not received the service they were promised and to seek redress:

This means that students’ consumer protection rights are not enforced when what they have been promised, in terms of quality, contact time, support, and so on, is not delivered.

But given students’ weaker positionality – pretty much defined as vulnerable consumers elsewhere in the paper – complaints and legal cases were not seen as the answer. Instead:

We should… consider whether 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.

The paper went on to set out a number of areas where students may not get what they were promised beyond that in CMA’s advice, including learning resources, indirect costs, available financial assistance, the support students receive outside the curriculum, and even the social facilities and resources to which students have access – all of which are getting cut in real time in plenty of universities right now.

It said it would seek improvements to the granularity and structure of the information provided by providers to support informed student choice, require greater clarity about the substance of the contractual offer from a provider, set out clear expectations about terms that OfS would consider to be unfair, and set out standards for information on the features of effective complaint handling processes within providers, and the support students should expect when they use such these processes. None of this has happened.

Maybe it’s waiting for the Student Group Claim to be resolved – the initial UCL part of which is set to be heard in the High Court in May. That will almost certainly include consideration of issues like changing learning experiences while still delivering the promised programme’s outcomes, “force majeure” clauses allowing imposed changes over things that were hard to control but not necessarily unpredictable, the nature of “express consent” when a student is told about changes and still (re)enrols, and how complaints should work in those circumstances.

I’m not suggesting that this is easy. I can see why a course description that suggests a student will get to choose from 30 modules in their third year might be left online while a VR process guts the staff and available choices in the background, because a university thinks it has to at least pretend that any consultation process might result in less gutting – but it is resulting in misleading omissions for students applying now.

And I can see how hard it is to make changes to wider services and facilities that protect cohorts – it’s not as if any university is going to say that first years can’t access the library 24 hours but third years can because they were promised it.

What would make TINA turn?

But the upshots for students stink. Even in circumstances where “there is no alternative” to dramatic cuts, legal frameworks are supposed to prevent providers from being able to make them in a way that impacts current students.

The fact that governments (and their regulators) are keen to see spend on students reduced doesn’t change that. And students’ lack of ability to take on providers in these circumstances is exactly what you’d want the state to step in on – but it’s failing.

I’m a realist. I know that back in 1995, I can trace my finger from the political choices made by electorates through to the amount of money being spent on me and my higher education. I also know that sometimes, the choices made in those circumstances can turn out well – but I’d like to have chosen them actively, rather than had them imposed on me unilaterally.

But the irony is that providers clinging to their risk analysis miss the trick on offer through consumer protection law. Inappropriate and ideologically vexing as it is, it at least says with its chest that higher education isn’t something that is capable of taking cuts with rapidity – and so when the result of funzing freezes and immigration changes is that harmful changes become otherwise inevitable, a sensible sector would say that out loud to cause the state to act – reversing or at least cushioning change in the process.

That providers, regulators and the state all appear to tacitly collude to make cuts on the scale we’re seeing this possible and this fast isn’t something that most students will realise now.

But just like me back in 1995, they’ll see what was done eventually. And for a sector that needs long term, popular support from the electorate like never before, that’s a very dangerous game to play.

2 responses to “Ships, Sugababes and Trigger’s broom – how promises to students get broken

  1. In the specimen U-S proposed robust/fair contract Dennis and I set out what should happen, morally and legally.

    But given weak or even non-existent enforcement of consumer protection law (the CRA15) by the regulatory agencies meant to protect ‘the student-consumer interest’ the HE Industry gets away with far too cavalier treatment of its customers.

    See OxCHEPS Occasional Paper No60 for what the enforceable terms of a contract might look like – a Paper written in 2016 so now one would add to the suggested ‘template’ the need for clarity on the extent of the remote delivery of teaching relative to F2F delivery.

    Dennis has been campaigning for a proper U-S contract since the early-90s; I joined with him a decade later; we have made zero progress!

  2. Yes, my first ever paper in the field of education ‘The University-Student Contract’ was published in the Journal of Educational Administration and History in 1992, so 32 years ago, thanks to helpful advice from the Education Department at the University of Stirling. The 1992 recommendation for a written contract has been developed over the years, since 2006 with David. With perhaps a little tweaking from us and adjustments for the local situation, the 2021 © version is, as they say, ‘oven-ready’ for licensing to institutions. Meanwhile, like many others I look forward to the High Court case, where I support of the breach of contract claim being advanced on behalf of the UCL students. And thinking about trying to get a rehash of the 1992 paper published.

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