Consumer protection law has changed, and the changes apply to universities now

That done, the new guidance is designed to update and replace existing guidance on the Consumer Protection from Unfair Trading Regulations 2008 – the new UCP provisions came into force yesterday (April 6th).

It does mean that some parts of its existing guidance for higher education will need updating – no sign of that yet, but nevertheless the new act and associated guidance is in force right now.

Some respondents found the draft overly technical and detailed, so CMA has restructured it, and there’s two supplementary quick guides on what businesses need to know about unfair commercial practices and fake reviews.

I covered most of the implications in the main blog on this a while ago, but here’s a few things I think providers (around the UK) ought to be thinking about.

A key change is a redefinition of what counts as a “transactional decision” – it now covers a lot more than the binary choice to enrol or not. As per section 245 of the DMCC Act, a transactional decision includes any decision made by a student about whether, how, or on what terms to purchase, retain, or cancel a service (before, during and after). This means that a student’s choice to re-enrol, withdraw, accept (material) changes, or respond to (material) programme or service alterations is now part of the protected consumer decision-making process.

Universities will need to tighten oversight of anyone acting on their behalf. The Act confirms that liability extends not just to what a university itself says or does, but to agents, subcontractors, marketing firms, and recruitment partners acting in its name. That includes domestic or international student recruitment agencies, as well as outsourced services promoting courses or offering application advice.

If a university’s agent makes misleading claims – about visas, costs, rankings, or student support – the university is still on the hook. Providers will need to review contracts, training, and oversight arrangements to ensure that everyone acting for them understands the new rules and complies with them. A university may reduce risk by showing it took reasonable, proactive steps to prevent it (“professional diligence”) – vetting agents, setting contractual expectations, providing training, and carrying out regular spot-checks on marketing materials, advice given, and recruitment conversations. The Agent Quality Framework is now more statutory, and more domestic, than it looks.

There’s a strengthened recognition of “situational vulnerability.” Section 247 introduces an explicit duty to avoid practices that exploit students’ temporary hardships – bereavement, financial instability, mental health crises. Vulnerability is now contextual, not just personal, and a university engaging with students in crisis has to consider their susceptibility to pressure or misleading claims. Given the way many students’ complaints tend to be settled, or the partial way in which students’ rights to compensation are described when a campus or course closes, that should cause some thinking.

If nothing else, universities whose franchise partners use agents to recruit to their courses really ought be getting nervous right now given some of the things I’ve seen on TikTok and websites in recent months.

The bar is higher where students are in situationally vulnerable positions – such as international students unfamiliar with UK systems or applicants from disadvantaged backgrounds, including those who may be the first in their family to attend university. In those cases, failing to monitor, spot-check or intervene on dodgy selling is likely to be a problem.

If a university makes a material change to the course or overall service provision offer and tells them, late in August, that re-enrolling in September means accepting the change – without clearly explaining their rights to compensation and only offering withdrawal as an option – this could breach the Act. It may mislead by omission and distort the student’s transactional decision, especially when alternatives are practically unavailable. Given the timing and pressure, the student may also count as vulnerable under the guidance, making the practice doubly unfair and potentially unlawful.

The professional diligence test tightens. Under section 229, universities must meet the standard of skill and care reasonably expected of a trader. The test has dropped its former reference to “special” skill. What matters is not that universities are experts – but that they behave as responsibly as any organisation engaging in commercial practices. This applies particularly to marketing, recruitment, and information-sharing. If a university makes exaggerated claims about employment outcomes or hides material costs behind a paywall, it risks non-compliance.

Section 230 strengthens requirements around how total costs are presented. Any “invitation to purchase” – including webpages, prospectuses, emails, and open day materials – must show the full price, covering all mandatory charges like field trips, equipment, or professional body fees, with equal prominence to the main tuition fee.

Updated drip pricing guidance makes clear that advertising tuition fees counts as an invitation to purchase. This means all unavoidable course-related costs – such as lab fees or specialist kit – must be disclosed upfront, clearly, and accessibly. And vague claims that fees “may rise with inflation” may also breach the rules if they fail to explain how, when, or by how much, or by which measure – or if that information isn’t given equal weight.

Section 226 of the Act sets out that universities are prohibited from providing false or misleading information, or presenting it in a way likely to deceive the average student and influence their decision-making. Crucially, while the Act itself doesn’t explicitly reference “puffery”, the official guidance confirms that the old tolerance for exaggerated, unverifiable claims – once casually accepted in university marketing – has effectively been removed.

Phrases like “world-leading teaching,” “unparalleled student support,” or “unrivalled graduate prospects” look like they now need to be backed by evidence – and if a university can’t substantiate such claims, they may fall foul of the law. Even broad or aspirational marketing language can breach the law if it misleads.

Most universities are familiar with the CMA’s suggested “material information” definition in its universities guidance – course structure, delivery, assessment methods, promised modules, staff expertise, learning outcomes, and teaching formats. Some are less familiar with the footnote on that page of the 2023 guidance – ancillary services like accommodation, wellbeing support, libraries, careers guidance, and even access to sport or facilities.

Crucially, the law doesn’t stop at what the university controls directly. Under the new regime, information that shapes a student’s decision – whether or not it relates to the university’s own services – is within scope if it’s likely to influence a transactional choice. Claims about the affordability of the area, the ease of commuting, or the availability of part-time work are regulated representations. If a university says you can live nearby for under £400 a month, but knows such housing is scarce, or promises ample job opportunities in a town where they’re practically non-existent, it may be in breach of its duty.

It really is time to get those cost of living webpages in order.

Under the Act, UK universities and their agents are subject to a new ban on fake reviews – no fabrication or cherry-picking of student testimonials to give a falsely positive impression. Similarly, any use of trust marks, league table rankings, or regulatory endorsements must be accurate and not misleading. Sales agents suggesting that a university has official approval or accreditation it doesn’t actually hold would also likely be in breach of these provisions.

Equally, pressure tactics now face tighter scrutiny – putting the much-debated ban on conditional unconditional offers from a few years ago under the microscope. And if a university implies it only accepts students with high A-level grades – say ABB – but routinely takes students with much lower results, my reading is that that may be a misleading commercial practice because it creates a false impression of selectivity, which could influence a student’s decision to apply or accept an offer. If that claim causes the average student to act differently it’s likely unlawful, even if not outright false.

CMA’s enforcement powers have also been quietly but significantly strengthened. The regulator no longer needs to rely on lengthy court processes to take action – it now has direct authority to investigate, determine breaches, and impose penalties, including fines, for unfair commercial practices. That lowers the bar for enforcement and raises the stakes for providers.

A couple of other issues to note. Right now, students have clear statutory rights to seek redress – such as cancellation, discounts, or damages – when they’ve been misled by false or deceptive information (misleading actions) or subjected to aggressive practices – but they don’t yet have equivalent direct rights for misleading omissions.

This means that if a university fails to disclose important information – such as additional course costs, changes to promised modules, or limitations in support services, or that there’s no way you’ll be running that many optional modules next year by the time that redundancy round is complete – students can’t currently bring a direct legal claim under the consumer protection regime on that basis alone. However, the CMA has indicated that it supports extending these rights in future, and the government has retained powers to do so via secondary legislation:

The government will continue to consider the evidence for extending private redress rights to additional practices, taking into account whether it would be effective and proportionate to do so. Should it be necessary, the government is proposing to take delegated powers through the DMCC bill which will allow for the extension of private redress rights in the future.

Finally, if you’re in England and thinking about the way in which OfS’ proposed definition of fairness that it’s consulting on relates to all of this, you’re not alone. As it stands, given OfS’ definition includes things like ancillary services, despite OfS only proposing to apply it to new providers (with no timeline for everyone else), providers would be wise to consider C5 in force given the way it helpfully applies lots of consumer law concepts to higher education practice.

In addition, CMA now goes further than proposed C5 by embedding key legal concepts such as transactional decisions, professional diligence, and protections for vulnerable or targeted groups.

Crucially, CMA now has a lower evidential threshold for identifying harm – centred on the likelihood of influencing a student’s decision – when compared against OfS’s proposed reliance on demonstrable or likely detriment. CMA allows for potential consumer impact even in the absence of quantifiable harm – OfS has a higher bar by requiring evidence of detriment and a judgment on whether that detriment is unreasonable.

To the extent to which OfS is preparing to argue to DfE that it wants to be given formal consumer enforcement powers (it doesn’t technically hold them now), expect changes on that front to the proposed C5.