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Who will blink first in the battle over admissions?

As Education Secretary Damian Hinds launches a new intervention on university offer making, Jim Dickinson looks at the legalities and ethics of the issue.
This article is more than 5 years old

Jim is an Associate Editor at Wonkhe

It is entirely possible that the Office for Students thought that its issues brief on unconditional offers, labelling conditional unconditional offers as “pressure selling”, would result in providers halting the practice.

If that’s the case, I have bad news. I ventured onto the topic with a group of course reps recently, whose mixture of distaste for the tactic, regret at their choice and self loathing for accepting one was visceral. And if you’re not sure whether that was an isolated case, just pop the right search terms into Twitter. The way in which the practice serves to distort decision making and prey on A Level achievement anxiety is all there in miserable bursts of 240 characters.

Allow me to intervene

That Damian Hinds has chosen conditional unconditional offers as the subject of his third “intervention” on higher education policy is therefore not much of a surprise. The latest wheeze from the DfE is to re-frame a line in his strategic guidance to the OfS to position Hinds as calling for a “comprehensive” review of admissions practices, albeit one that as yet has no terms of reference (the scope of the review will “be developed in due course”).

OfS had already announced a review of its own in January, but what’s interesting is Hinds’ repeating of the assertion that conditional unconditionals count as “pressure selling”. It’s a legal term with legal meaning and legal consequences – Smita Jamdar does a much better job than I ever could on reviewing the legal definitions in this area elsewhere on the site, but OfS and now Hinds must surely believe they are legally right.

When a university offers guaranteed accommodation in exchange for a firm acceptance, is that “pressure selling” the university, the accommodation, or both? And even if just the standard “firm us up and your offer becomes unconditional” tactic really is “pressure selling”, why are Hinds and the OfS not threatening legal action over what is, in law, criminal behaviour?

Buried in the regs

Things then get even more interesting if you bury yourself in the Consumer Protection (Amendment) Regulations of 2014 – which of course, I have. The right to unwind a contract for up to 90 days is well understood, and as Smita points out, is a lot longer than the two weeks cool off that most universities offer. But there’s more. BEIS’ guidance makes it clear that if a trader really has used illegal “pressure selling” tactics, a consumer has the right to a discount of up to 100% – even if the ‘goods’ have been fully consumed.

In other words, forget the future – if OfS is right that pressure selling has been taking place, thousands of current and previous students are entitled to money back – a right that is curiously absent from its guidance on the issue. Why isn’t (partly) BEIS minister Skidmore, or “student interest regulator” OfS, or the Competition and Markets Authority pointing this out and facilitating a national class action on wronged students? And if a complaint gets as far as the OIA, will it dare to use the 2014 regulations as a basis for advising that a full refund should be issued?

Maybe the legal position is less clear than it looks. It would certainly be extraordinary for the twenty universities that Hinds ‘names and shames’ in his intervention to be carrying on with the practice in the absence of legal advice. Surely this silent stand off will have to end in some clarity at some point.

Value for money

The ethical issues surrounding student recruitment don’t start and end with offer making.

A Guardian story on increases in universities’ advertising costs might have suffered from some FOI category comparison problems, but its overall point was salient and obvious – to keep up, much more of students’ fee income is being spent on recruiting students, at precisely the time that the sector is saying it’s hard up. OfS’ rather tin-eared quote was odd –

it’s for universities to decide how they allocate their resources and it is, of course, understandable that they will want to market their courses to students”.

Students might have expected that a regulator charged with ensuring value for money would reflect their concerns about where their money goes, but despite consumer law, the OIA and every student opinion poll ever saying spend on “things” matters, OfS sticks to its rigid line of regulating providers on outcomes. Over in the charity sector when fundraising costs eat too far into the amount of a donation to be spent on beneficiaries, regulators act.

Most English universities are charities, but their principal regulator here shows no apparent concern over fee income spent on coaxing rather than delivering. Maybe that’s because it has to regulate for-profits too, but students might at least expect that their wooly contracts would get tightened up so they at least get what they were promised.

Overall we are left again in all too familiar territory. Lots of grown ups keep claiming that they’re acting in students’ interests, but it’s no use giving students theoretical rights and implied protections when there’s no clarity over applicability, definitional advice or actual support to enforce them. In fact, all it does is suggest to students that unethical behaviour is OK if a market made you, and that in their so-called educational “partnership”, they are very much the junior. We’ll regret that one day.

2 responses to “Who will blink first in the battle over admissions?

  1. If the OfS thought that its January statement would immediately halt unconditional offers it is clearly unaware of UCAS guidelines. We have a duty to treat equally all applicants who had applied by 15th January and, as offer-making was already underway, institutions could not change tack even if they wished to.

    It should also be noted that consumers (applicants) could also be regarded as being ‘pressure sold’ at application stage. Will this greater openness allow applicants the freedom to choose to apply to both Oxford and Cambridge rather than having to choose one? Will it see the removal of the 15th October deadline for these institutions?

    I do not doubt that Jim’s course reps were dissatisfied but, as a counter to this the UCAS end of cycle report showed that applicants who received such offers were overwhelmingly positive about them.

  2. Postivity from students about unconditionals as a thing in themselves is hardly unexpected. But I would be surprised to see any positivity about a “conditional unconditional” as opposed to a straightforward unconditional.

    And if a student’s preferred university is not the one that gives them a conditional unconditional, it can result in a lot of pressure from home – I’ve seen this as an HE Adviser.

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