Universities castigated for breaking the law

As we reported last year, the Which? report A degree of value, found that many students had experienced some sort of change to their course and that terms and conditions of the relationship with their universities were hard to find or understand.

Following on from this report, Which? has sent an FOI to every publicly funded institution to find out the extent of the terms that universities have provided for themselves to make changes to courses. Their research has shone a very bright light on the current state of HE terms and conditions.

They found found that:

• One in five providers (20%) use terms that we consider to be unlawful and in contravention of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs)
• Three in ten (31%) use terms that we consider to be bad practice, and are likely to be unlawful in contravention of the UTCCRs.
• Nearly four in ten (37%) lacked enough information for us to analyse, making it difficult for students to know where they stand.
• 6% use terms that have some positive elements but we believe they need improvement
• Just 5% of providers use terms or policies that we consider to be good practice.
• Only one university, the University of York, met our best practice criteria.

So some good news for York. However, Which? have also taken the unprecedented step to name and shame universities with bad practice – and have even listed 26 institutions that they consider to have ‘unlawful’ practice.

They consider the practice unlawful where in the documents they received through the FOI showed a breach pf the UTCCRs:

The provider’s terms or policies have the same characteristics as for the “bad practice” category

But no remedy is offered to students in cases where changes are made (other than merely notifying students of changes or trying to minimise disruption).

This category includes providers that give themselves an unfettered discretion to increase fees year-on-year, where no indication is given as to the likely size of the increase. (For these institutions, the tables below indicates their practice in relation to other types of changes to courses).

Unlawful practice

The three tables below show the three different ways that Which? believe universities have acted unlawfully and the 26 institutions that they believe have acted that way.

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[table id=26 /]

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By publishing this list, Which? has set itself on a collision course with the higher education sector, which has been sent in to a frenzy in the last 48 hours about the report and its findings.

The unprecedented move to ‘name and shame’ – and particularly to make a judgment of lawfulness (or otherwise) has been a particular bone of contention. It goes against established practice where following the spirit of the rule of law, when unlawful practice is found, a remedy should be found through the judicial system – not merely by putting the accusations directly in to the public realm. This 'unlawful practice' - regardless of the rights and wrongs of it all - has not been proved in court but this won't matter to the media around the world that will leap on the story.

However, although I’ve heard many angry condemnations of the Which? action in private, at time of writing, no university listed as having unlawful practice has publicly come out fighting. After making some enquiries yesterday afternoon, it was also clear that some of these institutions had not even seen the report in which they were accused – exacerbating the feeling that this action is disproportionate.

The universities listed that have commented are saying that they will investigate the issue further. For example The University of Leicester said that it "works to ensure that our processes are transparent and wholly compliant with Consumer law." Many other institutions said something similar, and that they were attempting to comply with the latest CMA guidance.

However regardless of tactics, Which? are bringing to light an important issue that deserves serious attention. Terms and conditions should be fair and be made accessible and the CMA guidance and recent reforms have been moving things along – but clearly not quick enough.

One of the reasons why this Which? report is so interesting, is that as a tactic in higher education policy, it is wholly new and universities making slow progress in improving their terms and conditions, never anticipated that they would be named and shamed in this way. No authority with any sort of regulatory function in the sector would do this publicly, as their primary interest is to protect the reputation of the sector. The intervention made by Which? therefore grates against the sector's sense of itself and its way of doing business, which is why it has caused such consternation in recent days.

A positive outcome - both in the improvement of contracts as well as the sector's reputation, are now entirely in the power of universities and how they adapt to the changing landscape.

Which? may have set the cat amongst the pigeons this week but the onus is now on the sector to provide a full response that addresses outstanding concerns.

Download the full Which? report here.