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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.