Partnership and promises are not incompatible

It says that policymakers, regulators, and HE institutions must work with students as active partners, not only as consumers.

It also says that it’s concerned with proposals for OfS involvement in discussions with students on matters beyond the control of both OfS and higher education providers – it might “raise student expectations” and lead to “misunderstandings” about the regulator’s remit, resulting in the resources being misdirected and mission creep.

The good news is that John Blake has already thought about that:

We will also be vigilant for other aspects of higher education where the OfS can make a credible difference to students’ lives, even if we do not hold all the cards.

For example, if we were to conclude that students have been led to expect adequate accommodation within a reasonable distance of campus—which is a key component of belonging for many undergraduates—it would only be fair for us to expect providers to take action to achieve that.

Given we have no regulatory powers over private student housing providers, we have to be open and honest with students that the OfS cannot wave a magic wand and make reasonably priced student flats appear overnight.

What it could do, for example, is require providers to notice that some students may not have equal opportunity to access suitable accommodation – students with less money or who are accepted at a late stage in the application cycle may not be able to secure suitable housing.

That may lead to poorer mental health for students, worse on-course degree attainment and lower continuation rates.

Both of the above are in the current Equality of Opportunity Risk Register. And anyway, while a provider can’t make reasonably priced student flats appear overnight, it can refrain from recruiting a student living away from home if it knows that students won’t be able to access one.

OfS must take a role, or at least have a view, where students are being treated unfairly, even if it is only to give an honest and open account to the sector and to government about the state of student experiences and the likely impact of those on student outcomes.

Later Guild HE says that while it understands framing in the OfS draft around the student interest to be related to consumer issues, “not everything in the student interest is a consumer interest” (fair enough), and “not all students are legally defined as consumers (only those who take out a UG fee loan).”

That’s not true, of course. The Competition and Markets Authority’s guidance may only consider the law as it applies to HE providers of undergraduate courses – but this advice is “also relevant to HE providers of other types of courses and to other students where consumer protection legislation applies.”

It’s not just about whether the student pays fees.

When it responded to a petition calling for universities to be held accountable to students under consumer law, Universities Scotland said:

Current consumer protection law applies to students regardless of whether a fee is paid for higher education.

That’s because a consumer is anyone who enters into a contract for goods or services for personal use, which includes students enrolling at universities. Students have consumer rights when engaging with universities, whether they personally pay fees, receive government funding, or do not pay fees at all.

(I note in passing that several Scottish universities still have contract clauses that cap their financial liability in breach of contract to the value of fees paid by students – ”capping” accountability is a practice considered “blacklisted” under contract law and the Consumer Rights Act 2015.)

Even PhD students are consumers:

Oxford University Innovation Ltd v Oxford Nanoimaging Ltd ([2022] EWHC 3200 (Pat)) … established that PhD students will typically be regarded as consumers for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999 (the Regulations). Those regulations afforded protection to a consumer against unfair terms within contracts between a consumer and a seller or supplier, which included contracts made between universities and their students for the provision of education.

CMA’s guidance even says:

Consumer law is likely to apply to all students, not just undergraduates, if they fall within the legal definition of “consumer’ under applicable consumer law

There is a wrinkle when it comes to vocational training for jobs – because consumers are “acting for purposes wholly or mainly outside of their trade, business or profession” – but not only does the case law not offer a get out of jail free card (not all law students become lawyers, etc), it’s why OfS has always said, since inception:

[we] expect higher education providers to treat all students as consumers for the purposes of consumer protection law.

And it’s why its new consultation on “treating students fairly” says:

We propose that the condition should apply to all students, regardless of arrangements for tuition or other related fees and whether or not the student is studying as part of their employment. This includes, but is not limited to, apprenticeship students. All students make significant investments in their study in the form of time and effort, even those who are not charged tuition fees directly.

Guild HE does go on to argue that a more coherent collaborative system is needed between OfS, CMA, Trading Standards and ASA to reduce duplication and ensure efficient regulation wherever possible – no argument with that – but it then continues with a critique of the language of “promises” that universities make to students:

We do not think this language is correct or helpful. HEIs provide information to applicants on the scope of programmes, but due to the very nature of academic practice, some courses change over time (often for the better), which has always been the case to ensure up-to-date curriculum contents and teaching pedagogies, for example. For the most part, therefore, providers are not making promises to students.

Set aside the amusing “often for the better” qualifier. Neither CMA nor OfS have ever said that courses can’t change over time to ensure up-to-date curriculum content and teaching pedagogy. Over-zealous local compliance interpretations might have implied it, but the CMA has always been abundantly clear on this:

It is important that students receive what they expected, rather than something different. However, this does not rule out all variation. HE providers are able to make adjustments, for example, which may be necessary to reflect changes to the theory in an area of research or practices around the subject or its delivery.

A term that allows you to change aspects of the educational service is more likely to be considered fair if it is restricted to allowing minor adjustments that are unlikely to negatively impact students, or changes that are required by necessity.

Guild HE argues that universities aren’t promising things – but instead:

For the most part… providers are not making promises to students, but setting out a framework of expectations with regards to the shape, feel and outcomes of their courses.

Both in terms of the way students understand things, and in law, providers very much are making promises to students that go way beyond a “framework of expectations” over “shape, feel and outcomes” of course.

For a start CMA says that consumer protection law does cover “other, non-course-related” stuff that “students consider important and is likely to impact on their decision-making”:

For example accommodation options and whether accommodation is offered by or on behalf of the HE provider, whether it is on or off campus, and whether such it is guaranteed for first year students or is allocated on a first come, first served basis, or whether accommodation is provided exclusively or mostly by private landlords) or the help available for certain students in terms of funding and support. Consumer protection law will generally apply to these services too, and providing misleading information, or omitting information, may breach the CPRs.

That’s why OfS is proposing that “ancillary services” are covered by its new fairness condition:

We define these as services where a contract exists between a provider and a student as part of their higher education experience (including but not limited to the provision of library services, disability support packages, scholarships, accommodation and sports facilities). This proposal recognises that there may be several factors influencing a student’s decision about what and where to study (and influencing their experience of higher education once they are studying).

We suggest that these may include the educational and financial support available to them, where they might live and the non-academic facilities on offer. Where the information provided about ancillary services is unclear or inaccurate, this may impact a student’s choice of provider or course, and where the associated terms of service are unclear or unfair, this may influence a student’s higher education experience.

But even when it comes to courses, OfS says it’s come across failures to provide information about additional course costs in a timely manner; terms that allow the withdrawal of offers to students who have accepted these offers; terms that seek to limit a provider’s obligations to students in circumstances that are likely to be within its control; complaints processes that place unreasonable barriers to raising a complaint; false or misleading claims on websites; and variation clauses that give providers too wide a discretion to make changes.

It’s of course the case that students aren’t just consumers – you buy a bunch of stuff that gives you an experience that might lead to a qualification, not the qualification itself – and plenty of people regard the nomenclature as unhelpful, including OfS itself:

A paradox has emerged: the way students talk about their experience of higher education sounds a lot like consumers describing a relationship with a service provider, and at the same time, students are, almost unanimously, against describing themselves as “consumers of higher education.

They tell us they are not getting the teaching hours they were promised; they tell us their work is not marked and support offered in a timely fashion; they tell us they don’t have the time, resources, and opportunities to get involved with the extracurricular activities so prominently featured in the prospectus. And, crucially, students tell us frequently that if they are unhappy about any of these things, too often their university or college does not respond speedily and effectively.

The OIA has also long used the language of promises:

Where something has gone wrong or the provider didn’t deliver what was promised, or what the student could reasonably have expected, the provider will need to think about how to put things right for the student.

Ironically, when I talk to students and their representatives, it’s the language of promises that they absolutely get when they’re otherwise queasy about being consumers.

It could be that Guild HE is reflecting its members’ wishes that consumer law didn’t apply in the way that it does, or maybe it’s reflecting members’ misunderstanding of its existing scope. Either way, if there’s one thing I’m fairly convinced that won’t happen, it’s OfS ditching the idea that providers make promises that have to be kept.

I often hear that the language of “promises” is all very “consumerist”, and that the last thing we need is more oppositional sticks for students to beat academics and universities with when they should see themselves as partners.

But as I’ve said before, higher education is about a long-term relationship, both marriage and civil partnership involves making solemn vows, and the better the promises, the stronger the trust.