Where was the work on student rights when they needed it the most?

Jim Dickinson goes on the hunt for promised regulatory work on student rights - and finds both remit overlap and delivery gaps.

Jim is an Associate Editor at Wonkhe

I’m unhappy. Michelle Donelan says complain. But am I actually entitled to a refund? What should I look out for in the terms and conditions? What is “quality”? What is reasonable in a pandemic? Can my year abroad be replaced with youtube clips just because the university says it can? How do I work out if my complaint is reasonable and has a decent chance of success? Who might be able to advise me given my SU isn’t sure?

And so on. To help, you’ve got the Competition and Markets Authority, and the Office for Students. CMA seems largely to have ignored students since it did a deep dive in the middle part of the last decade, and I doubt many could put hand on heart and say “OfS looks and sounds like it’s working on the things that students would prioritise”.

I’ve talked before on the site this year about CMA’s absence from the debate – earlier in the year it referred me to OfS over general student accommodation issues, and in January it said to me that “The situation is being kept under review and the CMA is discussing regularly with DfE, OfS, and OIA – they might be able to provide more specific advice if needed”. I did remind them that higher education and consumer protection law exists in the rest of the UK, but got nothing back.

I’ve also talked on the site before about OfS’ work on students as consumers and contracts. A commitment to do more work in this area appeared in the autumn 2017 DfE-run consultation on OfS’ regulatory framework, which promised that OfS would undertake “further consultation on student contracts and student consumer rights” and “model contracts with providers”. OfS then said it would do so May 2018, revised it to September 2018, shifted it to December 2018, moved it to January 2019, delayed it to May 2019, planned it for July 2019, and eventually staged a Board chat on in November 2019 that manifested in a board paper in December 2019 – only for the resultant planned work on it to get pandemically paused (with no word since).

From a regulatory remit point of view, both CMA and OfS appear to do something to do with student rights and protection – and both have enforcement and regulatory roles. But getting clarity beyond that has proved to be something of a problem.

As a bunch of SUs put it the other week:

Any rights to redress that might apply under the Consumer Rights Act and related legislation are not at all clear, and our members are telling us that while they understand the process they might go through to make a complaint, they are not clear on the basis upon which a complaint might be justified.

Not a lot of thought

When inaugural OfS Chair Michael Barber was interviewed by the Commons’ Education Committee, its Chair Neil Carmichael pointed out that there was another regulator in the markets and consumers arena – and wanted to know if Barber was intending to interact with the Competition and Markets Authority:

That is a very good question. I will explore what the Competition and Markets Authority looks like. Obviously, it looks at the whole of competition and markets in general and we will seek to learn from it. But I should say right away that at this stage I have not given a lot of thought to that institution and we will learn from it.

That’s odd, because in the previous month when the Lords had been debating the Higher Education and Research Bill, the specific issue of potential overlap had come up. Lord Stevenson of Balmacara said:

I have raised this point before in Committee… about where the boundary is between the Office for Students and the CMA. The Competition and Markets Authority has been doing some work on universities, as I am sure the Minister is well aware…As one of the staff of the CMA said, the choice to go to university is an expensive “one-off decision” for many people—£50,000 seems to be the direct cost that will be involved in going to university, and that can either be paid directly or borrowed. Clearly, that is a significant amount of money, and the consumer rights issues involved in the decision to apply and then receive an offer of a place at university need to be clear in general terms.”

He didn’t get an especially reassuring answer, and so to test the water Baroness Brown of Cambridge (ie Julia King, Aston’s VC from 2006 to 2016) and Baroness Lady Wolf (as in Alison Wolf from King’s and the Augar review) submitted a “probing” amendment to investigate the relationship between CMA and OfS by proposing to transfer CMA’s consumer protection enforcement powers to OfS.

Answering for the government, Viscount Younger of Leckie reassured them as follows:

As outlined in our White Paper, we want the OfS to be a consumer-focused market regulator putting students’ interests at its heart. This includes looking after their consumer rights, ensuring the right information is available for them at the right time and making sure they have a route of redress should something go wrong… I remind noble Lords that the CMA operates extremely effectively alongside a wide range of sector regulators such as Ofcom, Ofgem and Ofwat. I am grateful for the continued involvement of the CMA in preparatory work to establish the OfS. Its experience is valued tremendously. With that short explanation I invite the noble Baroness, Lady Wolf, to withdraw her amendment.”

A funny thing happened on the way to the forum

Picking up that issue, later that year DfE kicked off the consultation on OfS’ new regulatory framework and promised something interesting:

OfS will host a regular consumer benefit forum with relevant representatives including CMA and the Office of the Independent Adjudicator (OIA). The forum will look to aid future collaborative working, by exchanging information, where appropriate, on new and developing practices in the sector, which will contribute to the respective work of the relevant bodies. The forum will also act as a sounding board for developing future policy designed to embed the OfS in its role as a fully effective market regulator.

When OfS/DfE were asked about that at the time the “forum” was supposed to be both a sort of internal working committee between the bodies, and a stakeholder facing body that would talk to consumers and their representatives – partly because OfS/DfE refused to have students or NUS in membership. But I’d sort of forgotten all about it until this note appeared on the OfS website last November:

The Consumer Benefit Forum meets on a regular basis to discuss emerging issues of mutual interest in the higher education sector. These discussions have been particularly important throughout the pandemic.”

At this stage given the salience of some of the consumer protection issues that have manifested, the idea that this body actually existed and that its discussions “have been particularly important” obviously piqued my interest, as did this webpage setting out the forum’s purpose:

Members of the forum ensure that while the guidance produced by each organisation may differ in focus and detail, the basic principles are the same. For example, contract terms must be clear and fair, students are able to make informed decisions when choosing where and what to study, and students are treated fairly. The forum is currently working on new ways of making students aware of their rights and raising awareness about providers’ internal complaints processes, how students can access these and what the process entails.”

As far as I’m aware the work referred to on “making students aware of their rights” and so on hasn’t materialised – so a month or so ago I decided to see if I could FOI any terms of reference, agendas, papers, minutes or meeting summaries relating to the forum since its inception.

Here you go Jim

All three of OfS, CMA and DfE came back to me (OIA are also involved but aren’t FOI-able). DfE said they needed more time. OfS sent me the terms of reference and refused a “report” it intends to publish at a future date – “possibly at the end of 2021”. CMA also sent me the terms of reference, and refused anything else on the basis of Section 35 of FoIA (where information relates to the formulation of government policy) and Section 31 (an exemption in cases where release would or would be likely to prejudice the law enforcement functions of a public authority).

What’s therefore remarkable about all of that is that it doesn’t appear to have actually been formally meeting at all – even during the pandemic. And that’s even more remarkable when we look at the terms of reference document that they did send me.

First, we learn that the forum (of OfS, CMA and OIA) had intended to meet formally quarterly to share information about general issues and principles, having regard to the legal constraints on CMA in relation to information sharing arrangements. The note says that “ad hoc meetings and/or discussions will be arranged between quarterly meetings as necessary”, but it looks like the only interaction has been ad-hoc – because there’s no held minutes, agendas or readouts from any formal meetings.

Next we learn that back in 2018, the group had intended to hold a Consumer Benefit Forum event. The idea was to hold the event annually, the first event was to be held in June 2019, and it was going to be open to the public – with a focus on students and their representative bodies.

Each of the three organisations was going to give a presentation on its role and remit in the higher education sector and how it relates to other sector bodies, and there was going to be an opportunity for delegates to ask questions and discuss issues relating to consumer protection law, student complaints and good practice, and the regulation of the higher education sector.

But none of that happened. It looks like the group hasn’t been formally meeting quarterly, and the public / student facing event never took place. If it had, perhaps some of the concerns that SUs have been raising about the lack of clarity over students’ rights during the pandemic and the process of making complaints – along with the promised work on students’ rights – might have materialised.

For the record, OfS says:

The CBF has met however the OfS does not hold agendas, minutes, papers or meetings summaries for the CBF. Members of the CBF do meet informally on a regular basis to discuss areas of mutual interest. The event planned for June 2019, was rescheduled for Spring 2020, however the pandemic meant that arrangements for the event could not proceed.

Setting aside the fact that the pandemic has made this sort of event much easier to organise, the problem as ever here is that the student/student rep facing aspects of the work have gone by the wayside while the internal coordination aspects appear to have survived, although not in a way that we can actually see.

There’s also no record of the student panel having ever discussed students as consumers issues – although in one discussion on student protection plans once, it did suggest that “links with consumer rights and other student-facing documents should be clarified, a[nd] “Know Your Rights” campaign for students [was] suggested”. That has never happened.

Working 12 til 1

One other thing. As far back as September 2020, DfE promised to set up a group to reassure MPs off the back of the 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.

Again, not heard much on that – so I also FOI’d for details. I got three agendas back – from December, February and March.

  • In December (over three months after the above assurance and eight months after the main petition had hit 300k signatures) OfS updated the first meeting on its notifications work, OIA updated on work including its group complaints consultation, DfE summarised the Westminster Hall Debate. The meeting lasted an hour in total. We have no idea if CMA were even there.
  • In February DfE updated on the APPG and further e-petitions, OfS updated on work on increasing awareness around student notifications and OIA updated on group complaints. Again, we have no idea if CMA were even there.
  • And in March DfE updated on further e-petitions and its reopening guidance, OfS updated on its guide to student notifications and potential revisions to consumer [protection law] guidance, and OIA updated on group complaints and case studies published. At this third meeting CMA did give something called a “CMA update”. I don’t imagine that took long.

There’s no minutes or papers – but I’m not sure that what we can see goes close to a proper consideration of whether the “range of existing guidance can be brought together to help students and providers understand this complex area”, or a “proper consideration of whether additional guidance for students and providers is needed”.

Does all of this matter? Almost certainly. Whatever you think about the year just gone or whether you think students should be framed as consumers, they do have legal rights, as Michelle Donelan keeps telling us. It’s just that students don’t really know what they are.

The gap between active dissatisfaction and formal complaints may well soon manifest itself both in HEPI/Advance HE’s Student Academic Experience Survey and in the National Student Survey. This area is complex enough for students and their representative bodies to navigate in an average year – and so what was needed this year was the bodies who have a remit in this area to step up both on advice generally, and curate advice in the context of the pandemic specifically. Instead, it looks like we have a well-coordinated significant failure here, just when students needed the opposite.

One response to “Where was the work on student rights when they needed it the most?

  1. Plus ça change, déja vu, whatever…. For the umpteenth time I remind all concerned that I have been pushing the need for a clear, comprehensive, standardised HEI-student B2C contract for three decades and with David Palfreyman jointly in all three editions of the Law of Higher Education since 2006. (Third ed published last month by OUP). We even provide an up to date (copyrighted) draft. Jim could perhaps also have noted that the UUK might even be proactive as a trade body and organise such a contract as agreed with the NUS, OIAHE, CMA, OfS……

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