They met the terms of their offer. Aren’t we required to admit them?

The headache highlighted across the media that arises from the great results u-turn surrounds universities and courses that are “full” but now have a surfeit of students who have the grades to be admitted.

The government’s working assumption is clearly that the removal of its numbers cap would allow universities to simply take on these students. But institutional student numbers caps are (hopefully) not the only thing stopping universities from declaring a course is full – there are obvious other capacity issues, especially in light of Covid-secure opening.

If nothing else, the Office for Students reportable events guidance reminds us that a substantial increase in the number of new students registering at a provider could affect that provider’s ability to satisfy condition E2 (management and governance) in the short term, and conditions B2 and B3 (quality and standards) in the longer term.

It argues that a substantial sudden increase could raise concerns about whether such growth was effectively planned and managed, or whether the quality of student support or student outcomes will be maintained for larger numbers of students. It seems hard to believe that an increase in student numbers of more than projection +5% could be regarded as anything other than substantial and by definition unplanned.

Nevertheless, the press is already full of tales of students who now have the grades they need to get into a particular university but have already been told it’s full. What are their rights in this scenario?

The one line answer to the question in the blog title is yes. They have the right to be admitted.

Competition and Markets Authority guidance points out that once an offer of a place has been provided, providers are obliged to admit the student on the relevant course of study if they meet the entry requirements and enrol. Technically this contract is two-way – although the emergence of UCAS self-release effectively means that universities have long since given away a right (never used) to require someone to enrol.

The courts have viewed the “contract” (even if it’s not called that) to admit the student as a binding and enforceable agreement for the provider – even though the requirement to pay fees has separately been held to arise only when the student enrols on the course.

Generally, if a university is unable to admit a prospective student who has met the terms of their offer, the ability of that applicant to sue for breach of the contract is widely accepted and understood. There is some legal speculation about the respective roles of various parties in the classic case of Moran v University College Salford (1993) and whether the equivalent bodies would result in the same decision today – but setting that aside, while the court couldn’t force a university to take someone, it still saw that damages would apply.

But this isn’t a situation like in Moran v University College Salford (a single, administrative error) – it’s a mass problem. Do other things like “force majeure” or “frustration” kick in? FM clauses are ones written in that allow universities to wriggle out of (or at least reduce/delay) their commitments in the event of stuff like floods, strikes, pandemics and… er… Gavin Williamsons. Frustration is the legal concept where it becomes just impossible to carry out your side of the bargain – the theatre owner whose theatre burns down. The trouble is that generally, to rely on this sort of stuff, in both cases something has to have become impossible rather than just difficult.

The reality therefore that very few admissions policies have FM clauses and frustration is debatable. It’s true that plenty of prospectuses have disclaimers on capacity and the courts would expect a student whose offer gets withdrawn after acceptance to seek to mitigate their loss by finding an alternative course. But the courts would also expect the provider to make reasonable efforts – either to find the student a place on another appropriate course, help them to defer to January or more likely September 2021, or to help find that student a place at another appropriate university.

The Consumer Rights Act 2015 doesn’t kill off the right to see that kind of compensation remedy – but it does give people a statutory right to for example a “repeat performance”. Whether September 2021 would count as “convenient” is another question.

Anyway, if the rumours of some universities and/or admissions tutors just leaving up recorded messages saying “sorry, we’re full” are to be believed, to avoid a legal problem those universities are going to want to swing into action with a little more reasonable effort this morning.

As I type, BBC News is leading with universities calling for clarity from government on how to solve this particular problem. Having been given an oddly broad umbrella early in the pandemic on emergency changes to courses arising from lockdown and Force Majeure, universities would be unwise to bet that the government will be anything like as helpful this time round.

3 responses to “They met the terms of their offer. Aren’t we required to admit them?

  1. Moran was decided in a different world.

    If there is a conditional contract on acceptance that becomes unconditional on Results Day, then any university that makes an Adjustment Offer would be committing the tort of inducing breach of contract.

    The same would be true of any university that initially reject a student and then sought to lure him back from his accepted Insurance or Clearing Offer.

    The modern admissions system only works if there is no intention to create legal relations until enrolment.

  2. a laudable contribution restating the fundamental and age-old principles underpinning the operation of the admissions system for the past 60 years dating back to the original inception of UCCA as a shared centralised application service and to which all HE providers signed up to by virtue of their original membership of UCAS and their ongoing participation in the scheme.
    There has been a great deal of shoddy media coverage over the past few days by journalists and media organisations who should know better aided by various mutterings (and more occasional public statements) from sector sources referring to courses being ‘full’ and citing the pandemic & associated distancing requirements as an effective ‘get out of jail’ card on force majeure grounds to walk away from the terms of conditional offers which have now been met.

    In relation to the comment above surely the ‘contract’ has two distinct elements where the first part relates to the academic conditions of offer and timeframe for its fulfilment (‘contract of admission’) and the second part established at the point of enrolment to the ordinances and regulations of the institution by which teaching and learning resources and supporting student services are accessed and the conventions of behaviour ( student discipline, no plagiarism etc) expected of all students (‘contract of enrolment’).

    Finally it is somewhat interesting that the OfS in its messaging should be supporting the option of deferrals when only a couple of months ago it was showing such hostility to so many of the examples of contemporary institutional recruitment behaviours which it was deeming to be improper inducements influencing applicant behaviour – times seem to change very quickly nowadays to suit rapidly changing circumstance – one might have expected OfS as a regulator to set a firmer line on the requirement on all institutions to stand by the terms of odffers made and committed to at an earlier point in the cycle.

  3. Thank you for your contribution.

    There are three problems with your analysis.

    If there were two contracts, it would be open to a student to accept the contract to be admitted but decline to enter into the contract to abide by the university rules. The university would still be bound to admit this citizen of Alsatia. There is no such thing in English law as an “agreement to agree” so the first contract could not bind him to accept the second contract. There is one contract and it is either made on enrolment or it is either an unconditional (as in Moran) or conditional contract made on acceptance.

    Secondlly, interference with a contract is a tort; a civil wrong, for which damages or an injunction can be awarded at the suit of the injured party, Even if there were two contracts, one university is interfering with another university’s contract by inviting students to enter into Adjustment.

    The third problem concerns funding. In the days of Moran, students applied to local authorities for grants; local authorities simply sent a cheque to universities for student fees and universities and councils did not interract with each other. There were two silos; student/council and student/university. it was no different to any private scholarship funding. If you look at the funding Regulations today the various student finance providers are deeply embedded in a three way process. So what if a student isn’t given student finance for whatever reason? Is the student contractually bound to pay the fees? is the university contractually bound to take the student and chase for the debt? If your mortgage offer doesn’t come through but you have exchanged contracts, you still have to buy the house.

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