You wouldn’t expect official Office for Students (OfS) guidance on student consumer protection to use the same language as CEO Nicola “absolute clarity” Dandridge used in her appearance at the Commons Education Committee – but it’s not far off.
Here’s your headline for Slide #1 on your presentation to the Zoom meeting tomorrow:
Notwithstanding the significant uncertainty regarding the impact of coronavirus, providers will need to ensure that prospective students have information that is clear and timely (including any information about changes to the courses for which they have applied)”.
It’s impossible to talk or indeed write about this without the merry-go-round of “interest focus” manifesting as an impossible, circular puzzle. By which I mean – yes of course it’s really hard to offer real clarity to students right now. Sure, universities can’t say exactly what life will be like before central government, regional government, or society knows what life will be like.
At the same time, without some of this information, it’s really really hard to argue – morally or legally – that students ought to be able to sign up to and commit to a deep and long term financial relationship with a higher education (and often an associated accommodation) provider that they can then be held to. They don’t have enough information, surely?
So let’s not go round the material mulberry bush again. I daresay some on Twitter will be bemoaning OfS making unreasonable demands when a) consumer protection law shouldn’t be a surprise, and b) they don’t look unreasonable through a student’s eyes. So let’s instead look at what OfS is saying, what it isn’t saying, and try to assess where this leaves both prospective and continuing students who are making agonising decisions about their future as we speak.
Before we get into this in detail, there’s a separate reflection on complaints. It’s also worth noting that of course OfS is an English regulator, but consumer protection law applies throughout the UK – so much of the guidance will be of interest around the nations insofar it interprets or highlights how consumer protection law applies, even if the regulatory material itself doesn’t apply.
Oh, and as usual, OfS’ guidance is oddly and unhelpfully silent on who counts as a “consumer” under consumer law. Bottom line is that it’s not just if you pay – if you’re studying for purposes directly related to your trade, business, or profession, you will generally not be considered a “consumer”. That’s not the escape clause that some have assumed it could be over the years, but it’s as frustrating as it has ever been that this issue again doesn’t warrant a mention.
The frame game
Before the guidance gets going we get the traditional role and powers framing. It kicks off with a bit of positioning that I know many will find distasteful, but is undoubtedly true:
Students pay a significant amount for their course and, although the “purchase” of higher education is not a straightforward transaction and students have their own obligations that will affect their experience, their rights as consumers are important not only in protecting students but also in maintaining confidence in the integrity of the higher education sector.
Then we get the first of several restated caveats. First, a reminder of OfS’ role in all this:
This guidance is intended to describe the OfS’s approach to its regulatory role and does not prevent students exploring alternative routes available to them for any alleged breach of consumer protection law.
That matters, because:
The OfS does not make judgements about whether consumer law may have been breached for any purposes beyond the conditions of registration and other regulatory requirements – only a court can decide whether a breach of the law has occurred for wider purposes, including whether any remedies for consumers apply.
All of that we already knew. We also already knew that OfS is “principles” and “risk” based, which some translate as “hard to know what they expect” and “inconsistent”, but that’s another blog for another day.
The most interesting “role and function” caveat is this one, a version of which we saw back in December:
The C conditions are necessary to underpin the delivery of the regulatory objectives. This means that the student protection mechanisms are primarily designed to work effectively in support of our objectives, rather than as ends in and of themselves. In other words, they protect students when, for example, the requirements of the B conditions are not being delivered in practice.
There are lots of ways to think about and interpret this, but an obvious one would be “and this is why we’re not touching university run gyms or halls of residence with a bargepole, thanks”.
The meat of the guidance is effectively an explanation of OfS’ approach to what it calls its “C Conditions” during the pandemic. These are on Student Protection Plans (C3), Complaints (C2) and Consumer Protection Law (C1).
How this works is that to stay on the register, providers are supposed to have “due regard” to guidance issued by the Competition and Markets Authority on how consumer protection law works in higher education for students.
This poses a couple of headaches for the regulator. First, what do you do if the CMA doesn’t seem that interested, hasn’t updated its guidance since before a major piece of legislation was passed (the Consumer Rights Act 2015) and generally has all sorts of holes in it? The proposal in December was to amend the regulatory framework to make providers pay regard to OfS’ own guidance instead – but that’s been pandemically paused.
The other problem is what you do if the CMA hasn’t issued guidance specifically on universities and students during the pandemic. If it was all a bit “square peg round hole” such that bespoke guidance was needed back in 2014, surely it is now? Maybe, but the CMA is busy with caravans and package holidays and theatre tickets. So OfS has to issue a fudge itself – sort of talking about that guidance in relation to now, filtered through its’ own interests and powers.
How on earth students are supposed to navigate this is anyone’s guess – but maybe that’s not the actual idea here.
It’s straightforward really.
The world has changed. You’re busy making changes. Applicants need to understand what a provider is committing to deliver both “in the current circumstances” and “in different scenarios”, as well as “how this will be achieved”, and the changes that might need to be made “in response to changing public health advice”.
Off you go.
This is because the law says that sufficient information needs to be provided to allow prospective students to make an informed decision about whether they are willing to start a course and accept those adjustments – or whether they would prefer to defer until the provider is able to deliver the course as originally advertised – or whether they might choose a different course or different provider.
I think that sounds fair enough, but my colleague David Kernohan sums this up as:
“Yes, I’ve got a place with you for September. I just wanted to ask how teaching would be affected by a zombie apocalypse?”
“A what now?”
“It’s a scenario that I want to know about your approach to. Will the undead hordes affect my BA Web Design? OfS says I can ask you.”
In Consumer Protection Law terms, this is all about when a contract is formed. Changes to “material information” (the sort of thing you’d go on to make a decision to go to uni, or the decision between two different providers) that has been provided to the prospective student should be communicated to them before an offer is accepted, and they should expressly consent to any changes.
OfS cross references the “material information” in the CMA guidance as follows, in a way that is going to blow the minds of people who are exhausted and were hoping that Consumer Law might just go away. You’ll need to be clear on:
- Content of the course. If the modules, or other course components such as placements or field trips, that will be offered have now changed or reduced, or will be delivered in different years, OfS says this needs to be made clear. It expects providers to give applicants clear information about the content that will be delivered in 2020-21 and beyond.
- Length of the course. For example, if there are changes to the anticipated length of the course to take account of particular assessment methods or placements that might be core requirements for the course which can only be undertaken in a normal operating environment, OfS says then these should be explicit.
- How the course will be delivered. This includes the extent to which the course will now be delivered online rather than face-to-face and how the balance between, lectures, seminars and self-learning has changed. OfS says prospective students will be particularly interested in the volume and arrangements of contact hours and support and resources for learning if this is now taking place online and virtually. Asynchronous v synchronous will matter here.
- Cost of the course. Information about the cost of a course should be explicit up front and should not increase once the course has started. OfS says providers should also be clear about any extra costs that students might need to bear to access resources or buy equipment as a result of the changes to teaching.
- How the course will be assessed. There have been plenty of changes here – both on the “how” and the “rules”, and you’ll need to decide how many of them are staying for next term sharpish.
- Award. If there are potential changes to the qualification that is awarded, for example professional accreditation, as a result of the pandemic, you’ll have to say. And OfS reminds us that if professional accreditation has not been confirmed for 2020-21 then this should be made clear.
- Possible locations. If the pandemic has affected where teaching may be delivered if and when face-to-face teaching can resume, for example because social distancing requirements may mean additional space may need to be made available at a location that is not the normal teaching location for the course, OfS says this should be explicit.
That’s the rundown in the guidance – but there’s several aspects of “material information” not explicitly covered there:
- Entry requirements/criteria (both academic and non-academic), and an indication of the standard/typical offer level criteria – which might have changed.
- Likely optional modules, including whether there are any optional modules that are generally provided each year – a major issue if you’re considering catalogue reviews.
- CMA also identifies non-course-related information that students consider important and is likely to impact on their decision-making – such as “accommodation options” (and presumably the detail of how that will be run) and “the availability of funding and support”.
- This is also about standout features you have promoted on your Open Day or in your prospectus. If you’ve “sold” them on the on-campus library, the careers hub, peer support schemes, wellbeing services, chaplaincies, clubs and societies, sports facilities or sports programmes, then you need to clarify if can’t deliver something you promised or if access to it might be severely restricted or now online.
What do you mean that all sounds impossible? OfS says it recognises that in the current circumstances it is difficult for providers to give exact information to students on how a course will be delivered, but that providers should acknowledge what is definite and what is not, set out their plans for the delivery of the course and properly explain the differences in delivery that will apply in different circumstances.
It’s another moment that sounds reasonable to students and consumer law experts – but might not sound actually do-able by humans by the next UCAS deadline. OfS is as ever offering no advice if your response is “there just isn’t the time/capacity”.
There’s also some fun finger wagging if that all sounds tricky:
Providers should let students know about their plans for delivery in different scenarios and changes in public health advice, for example by saying that teaching will be online until government restrictions on social distancing are lifted which might mean this is online for the entire academic year, or by describing that face-to-face teaching will be delivered following guidelines on social distancing and increased health and safety measures.
If that sounds overwhelming, don’t forget that:
Providers should also explain, if face-to-face teaching is resumed, what measures a provider would take in the event of a further lockdown.
(we take that to mean both a lockdown of the campus, or a micro lockdown of a street or block of halls delivered by a local Director of Public Health).
Plans need to be explained in a way that would allow a prospective student to make an informed choice about what and where they study and to allow them to change their mind if they are not satisfied with the revised offer.
And what if they don’t like the sound of that? If an applicant is not made aware of, or just doesn’t consent to, changes to the material information in their offer and begins their course in 2020-21, OfS 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).
OfS figures that this is because providers have the opportunity now to set out in advance what it plans to deliver now, and what its plans are in different scenarios. Every student needs a bespoke decision making flowchart for their own institution, course, and student characteristics, basically.
Importantly, just to stress again, in circumstances where offers have already been accepted, the “express consent” of the student will be needed to make any changes to material information that was included in the offer:
“Remember that course you applied for back in January?”
“We’ll it’s going to run almost entirely online in the first term, you can’t do any of the practicals until probably January, we’re not sure if the PSRB will accredit it and it is highly likely we’re going to lay half our staff off in Feb 2021. Is that OK?”
Please come back
If you thought all that was difficult for new students, don’t forget that basically it all applies to continuing students too.
As a general principle, OfS expects providers to make “all reasonable efforts” to fulfil contracts by continuing to deliver higher education that is “broadly equivalent” to that which was originally advertised – even if that education is being delivered through a different method as a result of public health advice.
Note the punt here, which is a particular interpretation – delivery method can change, but the “thing” must be equivalent. That’s a thought experiment that ends in the grotesque chaos of students being offered “virtual years abroad” and you’ll note that OfS isn’t saying “that’s what we think consumer law means”, it’s just setting out its expectations.
Nothing changes about materiality. Anything you have to set out for new students that you’re changing for continuing students from that big list above still counts. And no, “equivalent” isn’t really any further defined.
Importantly, providers are told here to let current students know what options are available to them if they are not satisfied with the changes that have been made; for example, if there is an option for students to take a year out or to transfer to another course. You’d assume that statements like “You cannot defer your studies because of the coronavirus outbreak. Deferrals will only be considered for exceptional circumstances” wouldn’t really cut the mustard.
You might say “well there aren’t any options really”, but it’s the next line that’s telling:
Providers should note that while following this approach may be appropriate for regulatory purposes it does not imply that providers will be compliant with the law”.
What we think that means that just because you’ve made an offer of an alternative doesn’t mean you’re not in breach of contract if a student refuses – and if you can’t any longer rely on that “Force Majeure” clause (and it’s harder to rely on as each day continues) then OfS is just noting that you still might be outside of what’s legally allowed.
(Oh and if you’ve been thinking about getting a new “Covid clause” into your contract, beware – OfS explicitly warns providers off from introducing new contractual terms to exclude or limit their liability as a result of the pandemic.)
If all of that sounds overwhelming, it’s because in many cases it is. Again, not to labour the point, imagine being a student right now.
There is a caveat though that is very much in what I would call the “provider interest” space rather than the “student interest” space:
Where the actions a provider has taken were necessary in order to implement public health advice, then regardless of whether there may be a breach of contract or a breach of consumer law, we are unlikely to take regulatory action. In these circumstances we would still expect providers to have regard to requirements set out in the CMA guidance in order to comply with condition C1.
It needs a bit of unpacking, that paragraph. OfS is saying look – if to keep people safe you end up having to breach consumer protection law, we’ll leave you alone. Sure, students might still be able to take you to court, but we’ll not step in – because we understand.
But there’s a problem here. Public health advice won’t mandate that some activities can and can’t happen in a simple way. It will say things like “keep 2 metres apart” or “deploy lots of hand sanitiser”. You might say that that “means” that public health advice is preventing you from running a particular lecture on a particular day because there are X students, X lecture theatres, X days in the week and £X in the budget for sanitiser.
But what that ignores is choices within a provider, and differences between providers. Over the next few weeks, given the capacity and budget and risk appetite that everyone has, some courses and students will get contact time, some won’t. Some facilities will be chosen to be open, some won’t. Some will book the local cinema. Some won’t. Maybe some should book the local Zoo.
The danger for students is that you could do almost anything – slash a load of optional modules, offer a paucity of contact, guarantee very little by way of student services – and your justification could be “yeah but pandemic” when it’s really “we’ve had to cut stuff because loads of international students didn’t come”. And once OfS accepts your argument, the only protection students have is the OIA or the courts.
In case you were interested, as well as a short section on complaints (see here) there’s a little section on Student Protection Plans.
Here OfS says that because it has reduced its regulatory requirements it does not intend to require changes to be made to approved student protection plans as a matter of course – although if a significant restructuring of a provider were to happen it might require a new plan to be produced and published. It will shortly open a perfunctory consultation on SPP requirements in providers that the OfS judges to be at material risk of market exit.
Other than that, all OfS is saying that it would expect providers to ensure that they follow the “principles” set out in their student protection plans in relation to ensuring continuation of study for students, even where plans “do not specifically refer to pandemic related risks”.
This remains a baffling decision. It means that what was supposed to be a bit of “material information” that you have to put on the website for students to see could well be, right now, a pack of inaccuracies. Moral quandary alert – if your old one right now says “2019/20” do you a) leave that one up, b) change the dates knowing the risks aren’t an accurate reflection, or c) quietly take take date off? I’ll be watching!
And as I said on the site previously, when almost none of the existing SPPs mention years abroad, placements or studio/lab heavy courses being at risk (and every provider in the country’s finances have changed), it means that they are not an accurate reflection of risk to students – so the solutions if the risks crystallise don’t match. Again, saying you expect providers to enact SPP “principles” is pretty mean when all the plans say is “you could transfer”. To where, exactly? Belarus?
The guidance naturally takes the opportunity to set out some student characteristics / situations priorities for its regulation. International students, students unable or less able to access and effectively participate in remote learning for whatever reason, together with care leavers, those estranged from their families, and students with disabilities are all highlighted – as are students suffering from coronavirus or who need to self-isolate.
As I’ve been saying for a few weeks now, don’t underestimate the impact of that last one. If today’s test and trace rules are still in place in September a student in an as yet undefined “household” could go home and cause a halls floor of students to have to self isolate for two weeks. It’s quite possible that a module of 50 students will have 25 of them clamouring for their one hour of contact this week, with another 25 demanding an asynchronous version because they’re trapped indoors.
There’s a spectacularly vague paragraph on student engagement. You’d never know that student engagement (that frames students as partners) is an ongoing requirement for providers from “you don’t say” sentences like this:
Providers should engage with student unions or other student representative groups in order to understand the concerns of students collectively as well as considering concerns raised by individual students”
How are they going to monitor? The usual four ways:
- The revised reportable events regime (if you’re intending to cease teaching some or all of your courses to one or more groups of students)
- Notifications (the scientific “grass your provider up but we might not email you back” thing)
- Complaints (even though there are huge problems here)
- Engagement (the also scientific “when we chat” process)
Where does that leave students? It takes a special kind of talent to dump a big regulatory burden on higher education providers, all in the student interest, in mid-June whilst leaving enough holes in your approach to allow most large providers to set aside the rights of students and bat off refund and compensation requests to the long gross of OIA/courts as long as they tick the right compliance boxes.
Will students be able to navigate any of this? Probably not. Will this help any students argue for changes in their interests, or assist them in having their rights enforced? Unlikely. If a provider is faced with the choice of exploiting students by reducing their offer to survive, will this stop it? Not a chance.
What I do think is coming is this. To comply, the reality is that you’ll need to promise very little by way of physical contact or physical access to facilities. This will rub up against the broad brush mood music of the positive, “blended” promises of the past few weeks. Once they get this granular detail, many will defer or opt out. Those left will compare, and complain loudly. This will be framed by the press as all “bums on seats” “mis selling”, and something that is the sector’s fault. A reputational car crash is coming – but it’s probably already too late to avoid it.