As the Department for Education consultation on a possible move to a post qualification admissions (PQA) system draws to a close, it’s worth reflecting on the potential impact of the move on universities’ obligations and students’ rights under consumer protection law.
Consumer protection law applies at three stages of the relationship between universities and applicants/students:
- At the “research” stage when there is an expectation that information about the courses, facilities and services on offer will be clear, comprehensive and not misleading by false statement or omission.
- At the offer stage, when universities must confirm what is being offered before and after acceptance.
- During the life of the contract, by controlling the use of unfair terms.
The main change will be to remove the conditional element to offer making. The contract is formed at the point when the offer is accepted, but under the current system, it is (usually) a conditional contract because it is subject to the prospective student attaining certain grades.
The current system therefore has a degree of potential instability built-in because of the difficulty in matching precisely the number of places with the number of applicants who successfully attain the required grades, which has led some to liken university admissions to landing an aeroplane on a postage stamp.
Usually, the exercise is relatively successful and all those who make the grades get accommodated by their chosen university. However, as 2020 showed, unexpected variations in exam performance risk throwing the planning right out and resulting in unplanned over-recruitment or shortfalls, both of which can affect students’ consumer rights if courses are overcrowded or if they have to be cancelled at a late stage because of low take-up. A move to PQA reduces these risks, although it may make projecting likely student numbers harder for institutions.
At present, prospective students tend to research and make their applications several months before they are due to start their courses. Until applicants accept their offer, universities have a relative degree of flexibility to make changes to what they are offering.
Once offers are accepted then, in the absence of circumstances outside the control of institutions such as pandemics, institutions are less able to make changes without offering students some redress. Therefore any system change which extends the period between starting to research options and receiving/accepting an offer has the potential to increase the risk that by the time the student accepts an offer, what they are applying for may have changed. This risk may be initially amplified by the inherent potential for uncertainty that any change to the current system will necessarily entail.
A system of post-qualification application would significantly truncate the time prospective students have to decide where to apply to and to decide which offer to accept. The process will be complicated by the fact that there is still a lot of variation both in terms of what information institutions provide about their courses, facilities and resources and in terms of how it is presented. This can make comparability difficult, especially under time constraints.
There are other advantages both to students and to institutions of better and clearer presentation of exactly what is being contractually promised, and so any move to PQA should be accompanied by addressing the clarity and comparability of the information available to applicants.
Depending on the precise timescale for the process, institutions may need to consider the impact of the move to PQA on the statutory cancellation period. At present, for any offer accepted at a distance (ie online or by phone or email) the student has the right to cancel within 14 days of the day after the date of acceptance, including return of any sums paid under the contract.
The service should not commence until after the expiry of the cancellation period, unless the student expressly agrees to it starting earlier. Under the present system, most offers are accepted long before the course starts, and so the issues around statutory cancellation rights are not usually significant. But if more students are to start their courses within the 14 days, the appropriate express agreements need to be sought and the effect of potentially more students withdrawing closer to the start of term needs to be considered.
As we have seen through other market responses in HE such as the use of incentives and unconditional offers, anything that creates instability and uncertainty in institutional planning can result in consequences that are unintended by and unwelcome to policymakers as institutions develop strategies to protect and grow their market share.
A move to PQA will almost certainly create a degree of uncertainty in the short term and possibly permanently, and the risk of unintended consequences from a consumer protection point of view cannot be ruled out.