This time OfS needs to keep its promise on broken promises

The Office for Students (OfS) should seek to build upon areas of good practice in which students are involved as lay experts.

Serious consideration should be given to expanding student involvement in quality assessments and investigations as a mechanism for strengthening the student voice in the OfS and its regulation.

And it should seek opportunities to involve students directly in its formal governance and regulatory activity – by constituting the student panel as a formal committee to the board.

These aren’t my words – they’re recommendations in David Behan’s Independent Review of the Office for Students.

It’s a review that included “sector expertise” – in the form of a “challenge panel” – from the higher and further education sectors, other arm’s length bodies, and consumer rights organisations.

The role of the panel was to hear from the Lead Reviewer, understand the evidence base, and challenge emerging thoughts and recommendations in a rigorous and constructive manner.

It involved a CEO of an access charity, three VCs, a Council member at Which?, and a whole range of other great and good people.

It didn’t, however, involve a student, a student rep, a student leader, an SU CEO or a students’ union advice manager.

Having students involved in governance and decision making is a bit like housebuilding. It’s always someone else’s board that needs to change.

Still, it’s the right recommendation – building as it does on the conclusions of the House of Lords’ Industry and Regulators Committee, which called for a scoping exercise on defining the student interest, for OfS to set out how student input informs its decisions and for OfS to open up more of its work to student involvement.

But as the late former NUS President Digby Jacks said in 1975, [student] representation must never be seen as an end in itself – “too many see it as a question of communication and merely sitting on the appropriate committee”.

The purpose of representation is to secure educational and institutional change – and there are interesting recommendations on that too.

A big commitment

Most students are paying directly for, or incurring significant debt to access their higher education – they make that commitment for an extended period, and their ability to switch courses is limited.

These, the review heard, are among the features of a “market” that you want to function well, and where you are looking to establish a “very high benchmark for consumer protection”.

Both the words “market” and “consumer” are catnip, of course – but if you use different words, I find it harder to find those who would argue against:

Students make a significant commitment to higher education, and in broad terms you want promises made to them to be kept – and for them to be able to seek redress if not.

Behan notes that there is a contractual relationship between students and higher education providers, that that relationship might not be explicitly stated, that students might not be directly aware of it, and that students with protected characteristics and from underrepresented groups in particular may not have access to the support they need to make informed decisions. Given all this:

…there is a power asymmetry between students and their providers which the regulator addresses, consistent with the primary purpose of regulation – public protection.

As a result, he calls on OfS to work with the sector to consider how to better ensure clarity about the contractual relationship between students and providers. “Model contracts” which set out students’ rights and obligations alongside the obligations of providers are identified as a potential way forward.

And while OfS has a positive and collaborative working relationship with CMA, Behan also says that there is an opportunity for OfS to exercise greater oversight in respect of consumer law:

It is the view of the review that the investigatory and consumer enforcement powers that the OfS highlighted as missing from its regulatory toolbox should be considered by DfE, particularly those that would enable the OfS to enact student protection and management of public money as critical functions more directly.

Behan also notes that “current” student protection plans do not appear to adequately consider or mitigate the risk of market exit to students, nor protect their interests:

Many are out of date and do not reflect the operational reality of current economic conditions.

Hence he wants OfS to revise the requirements for student protection plans to ensure these are current, detailed, and accurately consider risks to and mitigations for these risks to students.

He also wants to see the relationship between OIA and OfS grow in trust and maturity – and to explore how OfS might better ensure student priorities are adequately addressed through a more robust focus on providers’ own governance structures.

This is a jolly good stuff. But if it sounds familiar, that’s because it is.

(Here) we go again

In the Department for Education’s original consultation on the set up of OfS seven years ago, it noted that prospective students would need information to make the choices that are best for them. It also noted that OfS would use several registration conditions to protect students in the case of sudden, unplanned market exit.

This includes those from underrepresented groups who may have less experience and awareness of higher education, and in general those who currently experience an information asymmetry.

At the time, rights were not to be limited to “protecting students from the very worst situations where their provider or course closes entirely”. It was also important that students understood what they could expect of their providers in terms of issues such as “teaching hours and support available”:

It is critical that students know their rights, are given access to good information, and have fair contracts that enable them to take action if the reality of their experience does not match what was advertised.

Progress had been made following the publication of guidance from the Competition and Markets Authority, but is was “clear” that not all providers were following that guidance consistently.

A compliance review of a range of providers in 2016 had found mixed practice and raised concerns over the speed of progress providers were making to ensure they were making the necessary changes to fulfil their obligations under consumer law. Additionally:

…inconsistent practice was found regarding: accessibility of terms; a lack of transparency over course costs; use of terms which might allow too wide a discretion to vary course content; and provisions in complaints processes that put barriers in the way of students.

Students were promised that OfS would use its powers to create an environment in which providers fully met their obligations to students that students are able to build an understanding of their corresponding rights, and so there was to be further consultation on student contracts and student consumer rights, for example on whether OfS should play an enforcement role, and whether students would benefit from the use of model contracts with providers.

None of it happened.

It also promised a”regular consumer benefit forum” with relevant representatives including CMA and the Office of the Independent Adjudicator (OIA) to “aid future collaborative working, by exchanging information” on new and developing practices in the sector, which were to contribute to the respective work of the relevant bodies.

That eventually became some sort of email list whose minutes never seemed to be taken – although in early discussion the group had intended to hold an annual event with presentations, and an opportunity for delegates to ask questions and discuss issues relating to protection law, student complaints and good practice.

That never happened either.

In 2017, universities minister Jo Johnson got some press coverage out of contracts when he said that his new regulator would consult on whether a “systematic use of an improved student-contract” would help ensure “effective protection for students” paying what will for many be their “third largest life-long expenditure after a home and pension plan”:

Students to have value-for-money contracts with universities.

Nothing much happened – so two years later, Secretary of State Gavin Williamson wrote to OfS to ask it to draw up proposals for how new student contracts would work:

Live up to your promises or pay students back, universities told.

OfS had said it would do so May 2018, revised that to September 2018, shifted it to December 2018, moved it to January 2019, delayed it to May 2019, planned it for July 2019, and then suggested it would stage a Board chat in November 2019.

It did, and in December we saw an OfS board paper that said the information available to support student choice is “inadequate” because it is not always “sufficiently detailed about the things that matter to students”, and is not always structured in a way that “allows students to make meaningful comparisons” – a particular issue for students from disadvantaged backgrounds.

It said the contractual relationship between students and providers was “unequal” and OfS continues “to see cases where terms and conditions are unclear or unfair” (a view enforced by the CMA). This meant that “students are not clear about what they are buying”, in terms of “quality, contact time, support, and so on”, and were not clear about the “direct and indirect costs of their purchase”.

It also meant that students were placed at a disadvantage because “terms are designed to favour the provider”. It was also not easy for students to “identify instances where they have not received the service they were promised” and to seek redress.

Hence OfS intended to amend ongoing condition C1 to require providers to comply with OfS’ own guidance – to set “clear expectations about information that providers must make available to students”, the way in which providers must set out their commitment to students, contractual terms that OfS considered to be unfair, and the features of a complaints handling process that would operate in the interests of students.

…specifically promoting the use of a student contract as a single document containing a consistent set of information to ensure that students know and understand what they are buying and the direct and indirect costs of this.

But nothing happened.

In early 2020 we were also promised a look at the antics of international agents and the way they can often give misleading information to prospective international students.

Then the pandemic got in the way – OfS’ admissions review was dropped, and while OfS asked providers to comply with consumer protection law or issue refunds, it predictably did nothing to check if they were.

Given all the calls for refunds and legal questions surrounding them over Covid-19, DfE promised to set up a group in 2020 to reassure MPs off the back of a Petitions Committee report on refund demands:

In addition, the Department for Education has set up a working group with the OIA, CMA, OfS, Universities UK (UUK) and the National Union of Students (NUS) to consider whether the range of existing guidance can be brought together to help students and providers understand this complex area. The group will also consider whether additional guidance for students and providers is needed, and how the understanding of providers’ consumer law obligations can be further supported.

Nothing came of that.

By early 2022 then Secretary of State Nadhim Zahawi was telling students that OfS would ensure they got what they were promised, and later that summer OfS eventually held an event on protecting students.

It published an accompanying insight brief in which it said it would carry out additional research and polling on student protection issues to understand students’ concerns and priorities in this area, and develop proposals on and consult on an updated approach to protecting the interests of students as consumers.

This may involve revisiting our current consumer protection conditions and considering replacing them with more focused requirements.

Nothing came of that either.

That week the CMA published an update to its guidance suggesting it should be harder than many providers were making out to unilaterally make changes to courses, and ruling out clauses that allow a provider to escape liability for strikes.

Nothing much came of that.

OfS had also announced a new arrangement with National Trading Standards in November 2022 with a focus on case referral where there were unfair terms and conditions in student contracts, terms that were not clear, intelligible and unambiguous, terms requiring students to pay charges that may be unfair, terms seeking to limit a provider’s liability, and terms that allowed an unreasonably wide discretion to vary course content and structure:

We intend to publish more information about these cases at an appropriate time, as we think these issues are relevant to all universities and colleges and the contracts they make with students. We consider publication an important tool to help all institutions understand how to comply, and to encourage them to do so.

The “appropriate time” never came.

Jam tomorrow

In February, OfS said that it was considering whether it would be useful to provide more “clarity and unpacking” in terms of what consumer rights mean in this “pretty unusual sector”, and to give more certainty to both students and providers about what OfS is expected to do.

Nothing happened.

In March, OfS CEO Susan Lapwoth appeared at AoC’s HE in FE to say that students had “serious questions” about the amount of teaching they receive, the frequency and usefulness of feedback provided to them, and the level of support, both academic and pastoral, they can access – and said that students deserve to receive what they were promised by their provider when they chose their course:

We want to see that spelt out with greater clarity, and students confident they can hold providers to account for it.

Nothing emerged.

And of course over the past two years the failure to do anything on Student Protection Plans or the enforcement of (or progress on guidance on) consumer protection law means that students have been left without rights over industrial action and marking boycotts.

And now students are facing their courses changing (and thinning out) beyond all recognition – as providers have taken steps to stabilise their finances by slashing promised services, culling the academics teaching the modules they signed up for in the process.

Are students any the wiser as to their rights in this situation? Nope.

It’s never too late

For every cohort of students since those original promises since 2017, horses have been repeatedly allowed to bolt before any real attempt has been made to close the stable door.

Maybe this time it will happen. There’s a lot to do if so.

Student Protection Plans obviously need updating, and those updates need to include material changes to promises beyond campus, provider or even course closure.

Steps need to be taken to ensure students know their rights – and where there are types of student at types of provider less likely to know or less likely to avail themselves of the right to complain, “risk-based” regulation should focus on them. Disabled students should be first on any list.

If we now have a system where there are minimums and aspirations in our quality system, steps also need to be taken to ensure that students know what’s in those minimums, and that they are meaningfully able to feed into enhancement towards aspirations.

When something goes wrong, students should be able to avail themselves of a formally appointed advocacy body – placing mainstream university provider SUs and their advice centres on a proper statutory footing, and ensuring students in the “long tail” of small providers have access to support.

Ideally, we’d see reform to complaints culture – an end to NDAs beyond those used in harassment complaints, a duty of “candour” in investigations, and a duty to publish “lessons learned” from them – as well as a proper look at resolution times and a trial of institutional ombuds.

Some of the remaining Ts and Cs arguments – like how wide a variation clause is allowed to be, whether “force majeure” can claimed over industrial action, and whether there can be fee increases at all during a programme, all need resolution – as does the need for clarity on everything from PGR rights to claims made (or not made) about wider costs or housing.

None of this will help the undergraduates who’ve watched those due to be teaching their final year modules resign to take VR this summer, only to be told that the changes to their course won’t be “material”. It won’t help those whose inter-campus bus has been shelved, or whose campus has closed, or whose instalment plan has gone from seven to two without consultation.

It won’t change the fact that universities are having to save a lot of money right now. But if it was more clear that doing so would put them in breach of the rights that ministers pretend are protecting students, it may well make the argument with ministers over funding levels easier.

And nor will it help the student whose final year project is marked as a fail when it only deserves a fail. What it might do is help that subset of students – for whom their arguments about poor supervision and a lack of resources are a justification rather than an excuse – not end up submitting a weak dissertation in the first place.