More jam tomorrow from OfS on student rights

OfS held an online event on Thursday to discuss students’ consumer rights.

Jim is an Associate Editor at Wonkhe

The session featured both OfS Chair Lord Wharton and CEO Susan Lapworth, along with speakers from the Office of the Independent Adjudicator for Higher Education (OIA), the Competition and Markets Authority (CMA) and the Financial Conduct Authority (FCA).

The CMA obviously took the opportunity to talk through its revised guidance on the issues which we covered on the site in considerable detail last week.

OfS has also published one of its insight briefs on the subject, which looks at the concept of students as consumers, considers the scope of consumer protection law as it currently stands and examines how OfS’ regulation protects consumer rights – along with what OfS has done and what it will do.

Sometimes OfS gives the impression of leaping into action almost as soon as a minister has started pontificating on an issue. But this one has taken longer.

A long time ago now, OfS promised to hold an annual “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.

The OIA, the CMA and OfS were going to give a presentation on their role and remit in the higher education sector, 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.

This was kind of that – but very much felt like we’ve not moved much further forward since 2019. If you’re new to the agenda, it was all helpful stuff – but if you follow this stuff fairly closely, it was all fairly frustrating.

If you’re a provider, you’ll (still) be left wondering how the guidance applies to a series of now genuinely frequently asked questions. And if you’re a student you might well wonder where the enforcement work has been over a range of issues that hit hard during and beyond the pandemic.

One of the questions was on how a provider can balance information and promises to students with the need to make changes when responding to feedback. It might not feel like it on the ground, but we went around those houses when the CMA published its guidance in 2015.

Another asked whether refunds under consumer protection law should go to the student or the Student Loans Company. The big cheese from the CMA had seemingly never thought that through.

There were still questions on whether all students are consumers. No in law, yes in OfS’ view has been its position for years now.

Lots of warm words about the role of SUs won’t help the students in the hundreds of providers on the OfS register that don’t have one.

Elephants in the room were largely avoided – just a brief reference to agents, industrial action not really covered, little mention of the tens of thousands involved in the big student group claim over Covid, and still nothing on how we might ensure that students know their rights given their obvious vulnerability.

An an unevidenced assertion from the audience that the Consumer Rights Act has somehow “caused” students to see themselves as such and demand a degree with no effort felt as familiar (and false) as OfS’ lack of progress in this area.

In the press release, Susan Lapworth said that a degree is one of the biggest financial investments a student will make in their lifetime – and that while many universities and colleges provide clear, accurate and timely information to help students with this significant decision, often this isn’t the case:

We also see too many cases where the terms and conditions in the contract between a university and its students may not be fair. And the increase in the case work of the Office of the Independent Adjudicator signals the continued importance of responsive complaints processes for students not satisfied with their course.

If that sounds familiar, that’s because it is.

“Live up to your promises or pay students back” was a headline in the Sunday Telegraph in 2019, with an oped from Gavin Williamson on familiar themes:

If you were spending tens of thousands of pounds on anything else – be it a house, an expensive car or a multi-year contract for another service – then you’d rightly expect to have recourse. So should our young people at university. Students can reasonably expect that what they are being promised as part of the course will be delivered. They must be able to weigh up what is being offered at each university, based on clear contractual terms and if what was sold is not met, then there has to be a transparent and comprehensive complaints procedure to put things right.”

That piece echoed a promise that Jo Johnson had made earlier in 2017. At the time Jo Johnson said that “one of the of the first things” he would be asking OfS to do in exercising its new powers would be to consult on the system-wide introduction of student contracts between students and universities.

These would set out what students can expect from their providers in terms of resource commitments, contact time, assessments, support and other important aspects of their educational experience.

He also promised to consult on whether a “systematic use of an improved student-contract” would help ensure “effective consumer protection for students” paying what will for many be their “third largest life-long expenditure after a home and pension plan”.

That commitment then 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” which was to look at whether OfS “should play an enforcement role”, and also “whether students would benefit from the use of model contracts with providers”.

Contracts and consumer rights made an appearance in the January 2018 and January 2019 “strategic guidance” letters to OfS, and the regulator said it would do the work in May 2018, revised that to September 2018, shifted it to December 2018, moved it to January 2019, delayed it to May 2019, planned it for July 2019, and then suggested it would stage a Board chat in November 2019. It did that – noting all sorts of problems in the sector with consumer rights and contracts – but apart from some bits and bobs of Covid guidance and a partnership with National Trading Standards, little has happened since.

In 2019, OfS said that the contractual relationship between students and providers is unequal and that it was seeing cases where terms and conditions are unclear or unfair:

This means that students are not clear about what they are buying, in terms of quality, contact time, support, and so on, and are not clear about the direct and indirect costs of their purchase. It also means that students are placed at a disadvantage because terms are designed to favour the provider.

It also noted that it is not easy for students to identify instances where they have not received the service they were promised and to seek redress:

This means that students’ consumer protection rights are not enforced when what they have been promised, in terms of quality, contact time, support, and so on, is not delivered. We should, however, also consider whether a model that relies primarily on individual students challenging a provider for a breach of contract places a burden on students in an undesirable way.

But little has happened since. It’s almost as if ministers and the regulator need to… live up to their promises to students.

We did learn some new things. A little collection of case studies in the insight brief are not unhelpful. OfS says it’s going to develop proposals and consult on an updated approach to the agenda, which may involve revisiting its current consumer protection conditions and replacing them with “more focused” requirements – whatever that means.

It’s also going to undertake “additional research and polling” on student consumer protection issues to understand students’ concerns and priorities in this area – something its student panel was discussing over a year ago.

We also learned that OfS has begun to make referrals to National Trading Standards, including in relation to terms and conditions that are not clear, intelligible and unambiguous; terms that seek to limit a provider’s liability; and terms that allow a provider an unreasonably wide discretion to vary course content and structure.

It says that it will publish more information about these cases at an appropriate time.

In the future, obviously. But not now.

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