The state’s promises of protection for students have failed. DfE should step in

You’ll need to have some words ready that make the changes sound better for students, even though if you weren’t facing financial problems you wouldn’t be making them.

Next, rely on the clause in your contract and the CMA guidance to assert that the changes you’re making are not really “material”.

A student getting to campus on the Clapham Omnibus can see that they are “material” from space, but if you say something along the lines of “they’re all optional modules that are going”, or “you’ll still get to study all of that but in a different way”, or “you’ll still get the award you signed up”, many won’t know any better.

Next, try asserting that that line in your contract that absolves you from liability for events or issues outside of your control is in play, because who could have foreseen that the international bubble would burst or that the government would levy that national insurance hike.

There is no way that a court would agree that those financial pressures were force majeure, but if you assert to students and/or the SU that they were, many won’t know any better.

If that doesn’t work you’re into material changes territory. First, argue that student reps or the SU have been consulted (on the general thrust). Many won’t know that they are in contract individually and have the right to be consulted on contract variation individually.

If that doesn’t work, refer students to the exit clause in the contract – which gives them the right to leave the university without penalty.

In reality, students should be genuine a right to cancel and switch HE providers if changes are made – but the right to cancel must be real and capable of being exercised in practice:

In the HE sector, switching course or, in some cases, withdrawing and switching HE provider, is likely to be difficult or impractical in practice, bearing in mind that in many cases the student will not be able simply to transfer their credits to another HE provider, and so saying the student can switch may not improve matters for them, or alleviate the potential unfairness of a variation.

Chuck in the other clause that says the university’s total liability over a failure to perform to the contract shall be no more than the fees paid (which CMA says is an unfair term), and then hope that students won’t know any better and re-enrol.

You know that under DMCC, hiding their rights to compensation and/or sending a letter to the above effect in August represents an attempt to get a textbook vulnerable consumer to agree to a key transactional decision (accept the changes) in a genuinely distortive way, but many won’t know any better.

Then if they do re-enrol and work out that they later are unhappy, point out that when they re-enrolled they agreed to the changes you signalled in August.

I have heard versions of this story in approaching 100 universities over the past three years, and this summer is no different.

Maybe the cuts do have to be made. That the cost is all on the staff redundancy side and almost none on the student compensation side is outrageous, and telling – it represents a wholescale systematic failure to deliver on the promise to protect students.

If you do have to actually close, you could refer students to your refunds and compensation policy and/or the OIA. That happened to students at BRIT college when it closed in June – but on its website, there’s now a notice that says this:

Some students have received outcomes from the Office of the Independent Adjudicator (OIAHE) recommending refunds or compensation. Brit College is currently unable to meet these awards due to financial constraints. However, we are exploring funding options to resolve these matters fairly. Students with successful OIAHE outcomes will be recorded as creditors of the College and considered in any future redress process.

It doesn’t look promising, does it? That’s another wholescale systematic failure to deliver on the promise to protect students.

Earlier today, students at Spurgeon’s College in London were told their higher education courses will be closed from today. Up to 200 current students are affected – primarily registered on undergraduate and postgraduate face-to-face and online courses in Theology and Christian Studies.

Along with all the other advice about transferring to providers hundreds of miles away, OfS is actually saying this out loud:

If you used a credit card to pay for your fees you may be able to use Section 75 refunds – this is a UK consumer protection law.

It’s five years since I published a blog arguing that student protection plans are useless, consumer rights are hard to enforce, and so students should pay fees on a credit card.

I was “messing”. I didn’t expect it to emerge as official advice from a powerless regulator.

To be fair, Spurgeon’s Student Protection Plan did warn students that the risk of enrolling was high:

The risk that we would need to close the College due to financial viability is currently HIGH, due to current financial pressures and forecasts. The College has a site development programme and business plan in place to address this issue. It is implementing a plan to reduce the operating deficit to help secure long-term sustainability.

Sadly prior to the end of October 2024, by which time all of those would have (re)enrolled, it said nothing of the sort. The change may well have been insisted on by OfS – a note says:

Added provision for collaborative partners, and sections on risk analysis and review. 28/10/24 by Governors, 25/10/24 by OfS.

You might argue that was too little and literally too late – especially because high risks are not exactly flagged to students when they (re)enrol despite fitting the definition of a “surprising” contract variation (the information is very much “material”).

When a risk is high in an SPP, the corresponding risk mitigation steps are supposed to be souped up. Here’s what it said on that:

If College closure due to financial viability issues did occur, the impact would be very high and would affect all students. In this instance, the College would, if possible, close in a gradual way over a period that would allow current enrolled students to complete their programme on teach out, and/or explore partnership or transfer arrangements with other institutions. See paragraphs 38-45 for further details.

That then leads you to this bit:

However, the general approach is that a student’s new institution will map the units of study the student has taken at Spurgeon’s College against the units on their programme to ensure they are broadly equivalent. If they are broadly equivalent, they may award them credit. If they are not broadly equivalent, credit may not be awarded and therefore students might have to take some additional units.

Was it too much to expect that rather than crossing fingers on broad equivalence, the actual work would be done on alternatives? Other than for those on legacy validation from University of Manchester and Liverpool Hope (Spurgeon’s got time limited TDAPs), it seems it was.

In 2016, the Department for Education made this promise to students:

We want students to be reassured that they will not be left exposed if their chosen course or institution were to close.

…and that its policies would:

…help to ensure adequate, appropriate and consistent protection for students across the registered sector.

Its policies have failed, and will keep on failing. It should step in to compensate and write off the student debt that students have incurred in all of the above examples. And apologise.