Someone has to give in the great tuition fees battle. Who will it be?

Oh for goodness sake. Our online shopping has just come, and they’ve substituted the vegan burgers I’m being made to eat for the family’s extension of Veganuary into February with ones made of soya.

They’re actually more expensive than the ones we ordered, this is the only slot we could get for a fortnight, and I’ve been determined not to go to the supermarket given the pandemic. But I’m allergic to soya. It makes my throat swell up and stops me from talking for hours. Insert joke here.

Oh my days. And the sausages are missing. My lovely, secret, midnight sausages.

Is this a #middleclassproblem? You bet. Given there’s an actual global pandemic on, should I pipe down? Probably. Is the substitution actually more expensive than the original order? It sure is. But am I unhappy and justifiably of the view that I’m not getting value for money, and perhaps shouldn’t pay the full amount? I am. Bloody soya burgers.

Consumers are revolting

Regardless of what you think ought to be done about it – or more specifically, who should pay up to settle it – there’s is an awful lot of student anger out there just now.

When they say they want “no detriment” policies, they’re complaining about lost learning. When they say they want refunds, they’re complaining about things that didn’t get delivered or substitutions they deem unsuitable. And when they complain about trying to complete a degree in dance from their bedroom, they’re complaining about someone suggesting with a straight face that it is possible to complete a degree in dance from their bedroom.

Or about the idea that you can get an actual degree in chemistry, and become an actual chemist, with just a google cardboard kit and your mobile phone – like a sort of low rent educational version of Back to the Future 2.

If you lurk below the line for long enough on news articles on students and universities, there’s a strain of opinion that says “well, you knew what you were getting yourself in for”, or “well what did you expect”.

It’s not dissimilar to what most landlords have been saying – which has tended to be along the lines of “look, you signed a legally-binding lease agreement against a backdrop of Covid-19” (even though in truth we somehow still allow a student market housing market to exist that makes many students sign on the line 8 or 9 months in advance).

It’s all well summed up in this opening gambit from Susanna Reid on Good Morning Britain the other day, who put the following case to universities minister Michelle Donelan:

I also received a message, a very distressing message from someone on social media. Her name’s Chloe. She says we’ve been coaxed into paying private rental contracts in July, being told teaching would be in person only for it all to go online and we’re stuck paying hundreds on rent for houses we can’t live in or don’t need. She says my mom’s a single parent – she’s raised me and my two brothers, I’m the first in my family to go to university…

The question that comes up is – if it was the case that students knew what they were getting themselves into, and were warned about what to expect this year – why are so many of them angry? Or more to the point, why aren’t we seeing more universities use that argument back when being hit by a barrage of petition signatures or letters from parents demanding refunds?

Warning label

To chase this down, we should remind ourselves about what consumer protection law establishes as a right for individual students.

In almost all cases where fees are paid for taught programmes – regardless of whether those fees are paid with a loan that has an income contingent repayment scheme – students are consumers in law. An important concept in consumer protection law is the “material information” about the service that’s been sold – key things about the service that your average consumer needs to make an informed transactional decision.

For absolute clarity, students aren’t “paying” for learning outcomes. After all, some of them might fail, and some might not learn anything. It’s important that universities reserve the right to judge how much that someone (who may well still have paid full price) has learned and whether they’ve failed or not. They’re paying for a set of facilities and services that should in part enable them to learn and gain a qualification.

In the case of universities and students, material matters are things like the main course content, components like placements or field trips, how and where the course will be delivered (including the extent to which the course is delivered online v face-to-face), costs that students might need to bear to access resources or equipment they might need to take part, how the course will be assessed and details of professional accreditation. It also includes non-course-related information that students might consider important – the sort of stuff universities promote to students on open days.

In other words – all the stuff they’re saying has been dropped, restricted or substituted. Because it has, in fact, been dropped, restricted or substituted.

Everything changes, but you

It’s not hard to find the myriad changes that have been material. Students might be technically meeting the “learning outcomes”, but everywhere I look I see course content compromises (especially with breadth of options), placements and field trips curtailed or dropped, changes to delivery, additional costs, changes to assessment, questions over accreditation and plenty of campus facilities and services that students can’t access.

The basic safeguard in consumer protection law is that consumers get what they were promised. You might write a clause into your student contract about circumstances where you need to vary what you’ve promised, or where you might not be able to deliver through no fault of your own. But you have to be careful with those clauses – give yourself too much power to let down a consumer against the promises, and your clause may well be unlawful and unenforceable.

In the early part of the pandemic, these “force majeure” clauses were important because providers were hit with the pandemic like a bolt out of the blue. But last summer OIA said even if a provider was able to rely on this type of clause during the initial crisis period:

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.”

Similarly, OfS said providers couldn’t just impose changes on students, with a force majeure clause as the justification when challenged – changes had to be consented to:

If an applicant is not made aware of, or does not [individually] consent to, changes to the material information in their offer and begins their course in 2020-21, we would expect the provider to ensure that those students are aware of the options available to them, such as the right for the students to seek repeat performance or a partial refund (dependent on what is applicable in the circumstances). This is because providers have the opportunity now to set out in advance of the student starting their course in 2020-21 what it plans to deliver in the current circumstances and what its plans are in different scenarios.

Ditto for continuing students:

We consider that providers will need to provide current students with clear and timely information about any changes to material information about the course as set out above and should seek their [individual] consent to this change.

Of course if students were warned, and predictable scenarios like lockdowns were played out properly in what students signed up for, things might be different. The guidance notes that there might be scenarios where:

…the material information provided to prospective students set out what might change and how this would be implemented. Then, although the course would be different, this was already clearly and properly explained to the prospective student.”

Just to double check, I asked OfS if all of this still applies. So for example, I asked if it still OfS’ view that individual and express consent needs to be obtained by a provider from a student where a provider has made (material) revisions to a course (and or wider material information on facilities/services supporting academic delivery) during the pandemic. The reply:

Yes, our expectations on consumer protection remain the same. The section in our consumer protection guidance covering consent issues still stands.

And when I asked if OfS would expect to see reference to the extent and nature of consent-seeking in the consumer protection reviews it is expecting providers to do in the first half of this term, I got the Kafka-esque:

It is for providers to determine how to meet the expectation set out in our letter of 14 January.

I can see right through your plastic mac

So here’s the thing.

We’re in a pandemic. Some substitutions have been made. Some stuff has been restricted or dropped. That might all be reasonable given the circumstances, represent everyone’s best efforts, be more expensive to supply than the original, and still enable your family to eat.

They may well also not be what you ordered, and therefore you may well still be angry, and be entitled to redress.

There’s little real doubt – despite a lot of effort from various senior people to define what’s being paid for here as the “learning outcomes” – that the material delivery has changed radically from that which almost all students were promised.

And right now, providers in England have been asked to prepare a report (to be shared with their governing body) on the extent to which they’ve been compliant with consumer protection law. There are really only four ways that could pan out:

• The report could conclude that every promise has been met. But that doesn’t square up with the anger from most students. Is the line “well, you were warned” really going to wash? And is it true, in the sense that “were warned” also needs to mean “individually consented”?
• The report could conclude that some aspects weren’t delivered or available, but that these weren’t material to the learning outcomes. But that wouldn’t match the meaning of “material information” issued by CMA and reiterated in part by OfS.
• The report could say that some aspects had to be substituted and some couldn’t run, and that you communicated that – and that by (re)enrolling students consented to the changes. But the law requires that if a term could come as a surprise to the consumer, it will require more effort to ensure its prominence compared to other terms. If everyone made this much effort, why the lingering anger about how it’s all turned out?
• Or the report could say some aspects weren’t delivered or available and “well there’s still a pandemic on” so the force majeure clause applies. But OfS and OIA did warn you about force majeure clauses and it did say that students will need to understand what a provider is committing to deliver in the summer circumstances and in different scenarios (like a national lockdown), how this would be achieved, and the changes that might need to be made in response to changing public health advice. It could say “well, you were warned”.

Whatever it says, we may well be in a position where the majority of providers on the English register, and anyone else in the devolved nations charging fees, haven’t obtained meaningful and enthusiastic individual consent to changes to what was offered – matters that were material from both a “course” and “non course” perspective.

So if the anger is as widespread as it feels, and the changes as material as they look, if the majority of providers can’t say to the majority of students “you were warned” and “you agreed to this”, there’s a fifth option – a totality of fee rebates that the sector can’t afford, or additional delivery and access that there’s no time or space to make happen.

Something – or more specifically, someone – has to give here. And if universities have nothing left, it’s either students or DfE. OfS wagging its finger at universities is just fence-sitting. The actual side that OfS picks in the coming battle will tell us everything we need to know both about its real priorities and its “independence“.