Every few years, the student contracts debate is resurrected. It takes up a lot of column inches, speeches are made, people scratch their heads and offer analogies (gym membership anyone?). After a while the debate moves on.
It’s easy to trace the roots of the current debate. The CMA’s high profile intervention in higher education, and publication of its timely guidance “Higher education: consumer law advice for providers”, has focused attention on the student as consumer. Whether or not we like the concept of students as consumers, for legal purposes they are. The “value for money” of higher education is under intense scrutiny and the language of contracts has been widely used during the passing of the regulatory batten from HEFCE to OfS.
One factor among many
The debate is always interesting but in many ways it is more of a distraction from than a significant development in student protection. Whether or not students have contracts (of course they do), and what goes into them, is obviously important. Properly constructed contracts should give students a clear understanding of what they are being offered, and what their own responsibilities are.
But contract terms are only one factor which we consider when we analyse the relationship between a student and their higher education provider. As an ombudsman scheme, we look at whether a higher education provider has fair procedures, whether it has followed those procedures correctly, and whether the outcome for the student is reasonable.
If the higher education provider has clearly breached a term of the student’s contract then it is hard to think of many situations in which we would decide that was “reasonable”. One example might be the provider which has to remove a student from their accommodation without proper notice because they were posing a threat to the safety of other students. In that case we would of course look at the terms of the student’s accommodation agreement, and the provider’s powers under its disciplinary procedures. We would also look at whether the provider’s actions were reasonable and whether it properly supported the student through the process. Did it offer alternative accommodation, or take steps to make sure the student had somewhere else to go? Did it provide pastoral support for the student, and refer them to appropriate sources of help? Overall, was the student treated fairly in the circumstances?
The letter and the spirit
On the other hand, there might be reasons why a student who has breached the terms of their contract ought not to be held to rigidly to the letter of it. For example, it is unlikely to be reasonable to withhold a student’s degree because they have not paid a small library fine, even though the terms of their contract permit that. In another accommodation scenario, it might not be reasonable for the higher education provider landlord to terminate the accommodation contracts of a group of student flat mates because one of them set off the fire alarm. We would expect to see the higher education provider conduct a proper investigation into who was actually culpable.
Over emphasis on contracts risks creating a legal arms race and driving students into the Courts. This runs counter to the pragmatic policy of successive governments to encourage consumers to use alternative dispute resolution bodies. That policy dates back to Lord Woolf’s Access to Justice report in 1996, which, together with the introduction of student fees, led to the creation of the OIA. Students don’t pay any fee when bringing a complaint to us. Our processes are informal and inquisitorial (we ask the questions!) so students don’t need lawyers.
We are looking forward to working with the CMA on the consumer benefit forum proposed in the OfS consultation. We have a common interest in ensuring that students are treated fairly as consumers of higher education but our roles in this arena are distinct and complementary. We are not in competition with each other and our remits do not cut across each other. The CMA is a regulator and will focus on whether a higher education provider has complied with its legal obligations. It does not consider individual complaints from students or give personal remedies. As an ombudsman scheme, we look at whether the student has been treated fairly and, if not, what the consequences are for that student as an individual.
Unlike the CMA, we can make recommendations about how a provider should put things right for an individual student, as well as how to improve practice for its student body as a whole. But we will always consider the terms of a contract through the lens of the CMA’s guidance. We have upheld several complaints on the basis that the terms the higher education provider relied on would not meet the requirements of consumer regulations, or because a provider has not delivered something that was promised in its prospectus. But we do this in a broader context than the strict legal principles the Courts have to apply. And we have much greater freedom when it comes to putting things right. Most students are more interested in a practical remedy such as a resit opportunity, reinstatement, or a fair fitness to practise or disciplinary hearing.
So from where we sit, the contract debate is a bit of a distraction. We are interested in promoting good practice in higher education and fairness for students whatever their contracts say.