The Competition and Markets Authority has “decided it would be helpful” for the sector if it reiterated its views on consumer protection law in relation to higher education offers, terms which could allow providers to withdraw or cancel offer after a student has accepted it (and met any entry conditions), and terms which limit or exclude liability where providers seek to withdraw or cancel an offer.
Basically, in the aftermath of (or perhaps in anticipation of) the problem that emerged during Examnishambles 1 in September 2020, it appears to have been drawn to CMA’s attention that some higher education providers may have put clauses in their contracts with students which allow them to withdraw offers if a course is oversubscribed – something CMA interpreted as unlawful back in its guidance in 2015.
I’ll be honest here – in the grand scheme of consumer protection law concerns that students have, this one’s not near the top of the list – although it’s lovely to see CMA take an interest for a change, having spectacularly failed to do so on other issues facing students during the pandemic.
The Office for Students – which confusingly doesn’t enforce consumer protection law but does enforce a condition of registration that requires providers to look at it – says that its view is that providers should not use such clauses and may, if appropriate, carry out enforcement action to address any failures to comply.
What’s profoundly unhelpful here is OfS’ failure to even mention the corresponding consumer protection law risks of letting in too many students if the facilities and staffing can’t cope. I’ve not stopped being inundated this term with tales of “seminars” that host a hundred students, labs and lectures that are only online “because otherwise they wouldn’t all fit”, and looming panic over meeting marking turnaround time commitments.
To quote the minister, it’s no good letting them get in if once there they can’t get on… a sofa in the social learning space because it’s full on a Tuesday lunchtime.
Which brings us to the most egregious bit of behaviour in the trifecta. In her letter to vice chancellors, further and higher education minister Michelle Donelan says that it is also vital that all offers that universities make are fair and transparent, so that any student who accepts an offer at an institution knows that “through hard work” they will secure a place on their chosen course if they meet their offer conditions.
“It is therefore disappointing that”, she says, grabbing for her sabre, “that during previous admissions cycles, there have been instances of providers introducing oversubscription conditions that permitted them to withdraw places where the number of students meeting offer conditions exceeded the number of places available”.
Surely, you’re thinking, the next paragraph will admit that the main reason for this problem existing has been the complete inability of DfE to run anything close to a stable Level 3 assessment round for two years. Surely, with a level of uncertainly still hanging over 2022, she will mention that she gets why providers have done this, but will then set out the steps she’s taking to ensure that we won’t see an Examnishambles 3 – and that if it does, her department will be there to help, pick up the pieces, inject funding and generally cover universities’ backs who made offers in good faith?
If there is any more I can do to support you during this admissions cycle, please get in touch”.
I’ll start a list.