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Education briefing - 10 Key questions to ask when undertaking your consumer law reviews this spring term - A list for HE providers

  • United Kingdom
  • Education - Briefings

21-01-2021

The recent letters from Michelle Donelan MP, Minister of State for Universities (13 January 2021) and the Office for Students (14 January 2021) are a reminder of the need for HE providers to be cognisant of the nature and scope of the application of consumer law not only to their student and accommodation contracts but also to their wider relationships with students generally. The reach of consumer law extends to pretty much all the touchpoints of the student journey (including marketing, recruitment, admission, academic, pastoral and accommodation functions), and that reach is being scrutinised and tested like never before in the current coronavirus pandemic and the growing clamour by students for tuition and accommodation fee refunds.

As Michelle Donelan states in her letter “The Government has been very clear that Higher Education providers are expected to maintain quality and academic standards, and the quantity of tuition should not drop. Providers should seek to ensure all students, regardless of their background, can access their studies remotely.”

But the Government and the OfS have now gone further. They are requesting HE providers proactively to review - during the first half of the spring term - their compliance with consumer law and to provide assurance to their governing bodies of ongoing compliance with ongoing Condition C1 (guidance on consumer protection law), and whether students have received the teaching and assessment in 2020/21 that they were promised. “We have heard from some students” the OfS says “that they were not clear about what had been promised, or that what was promised has not been delivered in practice”. And the Government and OfS are also expecting HE providers “actively” to make clear to students their rights of redress under consumer law and how they can complain. “University complaints processes should remain open and accessible at this time”, the Minister has said.

Indeed, the Minister’s sights are not set just on the teaching and assessment delivered by HE providers. In addition, her letter strongly encourages “accommodation providers to review their accommodation policies to ensure they are fair, transparent and have the best interests of students at heart” and to make students aware of the processes in place to support them if they have concerns about their accommodation costs or face particular financial hardship.

Whilst the OfS regulates higher education in England, the following discussion of consumer law will also be relevant to HE providers in Wales, Scotland and Northern Ireland.

• 10 key questions

It’s clear that the OfS expects the reviews which HE providers have been asked to undertake to be proactive ones, with students being signposted to routes for complaint, refunds and redress.

Here are 10 key questions to guide and support HE providers in undertaking those reviews:

1. Have you delivered in practice what you promised to students in your marketing literature, offer letters and student/ accommodation contracts?

Remember that any gaps identified (in academic, pastoral or accommodation services and delivery) may mean exposure to complaint or legal claims.

It may also potentially mean notification to the OfS (or, for providers in Wales, a report of a serious incident to the Charity Commission). The OfS states in its letter that if “the outcome of your review identifies potential compliance risks with condition C1, we would expect you to inform us of the risks identified and whether or not you are taking remedial action. We are not otherwise expecting you to proactively report to us on the outcome of your review. However, if we receive notifications from your students or others that raise relevant issues, we are likely to want to discuss these with you and this would include asking to see documents relating to your review”.

Don’t forget that the consumer law regime is holistic in nature and applies to all information (written and verbal) that’s provided by or on behalf of providers to prospective and registered students including at the pre-enquiry/research, application/admission and contract-formation stages and to students during the performance of the contract itself. This includes marketing and recruitment materials, course information, fees information, accommodation information, policies and procedures, and information about learning and pastoral support services.

And keep in mind also that, under the Consumer Protection Regulations 2008, providers are under a general obligation not to omit, hide, disguise or delay any information that the average consumer needs to make an informed decision as to whether to enter into a contract or not and to make decisions during the life of the contract. The Regulations also prohibit providers from misleading consumers as to their consumer rights in the context of their student and accommodation contracts at any time. Failure to comply with the Regulations can result in criminal sanctions being imposed in addition to civil liability.

2. Are your complaints policies and procedures for prospective and registered students publicised, accessible and clear?

Consumer law requires that students are signposted to readily-available and fair complaints processes which afford them, and do not undermine, their consumer rights.

The Consumer Rights Act 2015 includes an express statutory requirement that a service (such as the provision of educational, pastoral or accommodation services) will be carried out with reasonable care and skill and in accordance with what was promised. The Consumer Rights Act defines what remedies a student will have against a provider if these “statutory guarantees” are not met. These remedies include (where repeat performance is not possible within a reasonable timeframe) an appropriate reduction in the price paid for the services, which could be up to a full refund. Any reduction will need to reflect the element and extent of non-performance.

Remember that these legal remedies are in addition to any other form of redress that is open to a student, including damages for direct consequential loss arising from a breach of contract.

3. Do your student complaints-handling arrangements allow for complaints to be dealt with quickly, consistently and effectively and for appropriate redress to be provided to students where complaints are upheld and your contract and consumer law obligations have not been complied with?

It’s important that complaints processes and arrangements reflect consumer law requirements and that staff who are responsible for drafting complaints procedures and implementing them in practice (including deciding on refunds and other redress for students) are aware of these requirements and their application to complaints-handling.

Don’t forget it’s a criminal offence to mislead students about their legal rights, which also includes students’ common law remedies.

4. Are your policies on fees, refunds and compensation consumer law compliant and do they afford students their statutory entitlements to redress?

Consumer law also applies to the contents and implementation of these policies.

Policies should be properly incorporated into student and accommodation contracts and made fully accessible to students, and align with your complaints-handling processes.

5. Do you have robust processes in place for identifying changes that may need to be made to academic, welfare or accommodation services and for communicating changes promptly and clearly to prospective and registered students?

In particular, processes and timescales for changes to courses and assessment, accommodation and wellbeing support will need to allow for clear and timely communication with students (in advance of contract formation, start of term, etc) to ensure that students have time to assess the changes, seek further advice or guidance or support, and make informed decisions such as whether to apply for a course, accept an offer, return to campus, book travel or enter into a contract for accommodation.

It’s important to note, however, that consumer law also needs to be considered when seeking to introduce any changes to services in relation to both new and existing students. This will be the case even if the relevant student or accommodation terms and conditions contain provisions that seek to allow such variations to be made. In many cases, reliance on variation clauses will be a risk based decision for HE providers, as such clauses are particularly susceptible to challenge under the “fairness test” contained in the Consumer Rights Act 2015.

Regular and meaningful dialogue with students and students’ unions on an ongoing basis can be crucial for compliance with providers’ legal obligations, mitigating against legal, regulatory, governance, reputational, financial and commercial risks, and for managing student expectations.

6. How will you ensure that the needs of all your prospective and registered students are assessed and that they are afforded their legal entitlements?

As the OfS makes clear, it’s important that the requirements and implications of consumer law are considered across all your different categories of prospective and registered students including those who are suffering from coronavirus and who need to self-isolate, international students, students unable or less able to access remote learning, care leavers, those estranged from their families, and students with disabilities, and also (for example) students with mental health problems, commuter students, undergraduates and postgraduates.

Rights and remedies under consumer law often depend on the particular circumstances, so what is fair for one student may not be fair for another.

7. Are your student contracts coronavirus-robust?

For example:

• do the way they describe academic and pastoral services provide you with adequate flexibility to change content and delivery modes without making formal contractual variations?

• are the variation provisions fit-for-purpose and do they avoid the need to rely on consent for post-contract formation changes?

• are the liability provisions lawful or do they attempt to contain exclusions which could be struck down as unreasonable?

It should be noted that the OfS has said that force majeure clauses (events outside your control) are unlikely to be reasonable in this year’s student contracts, but these clauses are also worth reviewing to check whether the terms adequately cover exceptional circumstances that could prevent services from being provided.

8. Are your accommodation contracts coronavirus-robust?

For example:

• do they contain provisions which would enable you fairly to relocate students to other accommodation or to suspend the accommodation contract for a period to support your proactive management of the health and safety implications of the pandemic?

• should you consider building in more flexibility around the length of accommodation contracts to cater for the possibility of further periods when life on campus is disrupted?

• do your accommodation contracts contain the appropriate provisions to manage student behaviour on campus and compliance with relevant Government restrictions? And do those provisions link through effectively to your student rules and regulations and student contracts?

9. Do your overarching collaborative/ partner arrangements support you in complying with your legal obligations under your student and accommodation contracts?

For example:

• do any validating or sub-contracting contracts align, including in respect of the making of changes to courses, assessment and pastoral services?

• do your contracts with placement providers or overseas partners allow you to fulfil your obligations to students under your student contract?

• do your contracts with overseas agents need amending?

• do any nominations arrangements you have in place with third party student accommodation providers support and align with your accommodation contracts and, in particular, do they afford flexibility to enable students to be relocated or for the duration of accommodation contracts to be adjusted?

10. Do you have arrangements and a plan in place if the situation starts to escalate?

In these difficult times the risk of complaints and claims for accommodation and tuition fee refunds and for related compensation escalating into more widely spread campaigns and rent strikes is a very real one. In the age of social media, events can move very swiftly, group claims can quickly gather momentum and the reputational risk for providers if the situation is poorly handled can be huge.

Having in place arrangements and a proactive plan to manage the legal, regulatory, governance, reputational, financial and commercial risks is crucial. Providers should identify and pre-empt potential flash-points, and review and monitor plans regularly and adapt them as circumstances change. Arrangements should be overseen, monitored and implemented by staff with appropriate expertise and seniority. Clear, consistent, considered communication (internally with students and staff, and externally (including, as appropriate, with students’ unions, collaborative partners, professional bodies, insurers and the media)is critical.

HE providers should also keep in mind that, in undertaking their consumer law reviews and preparing and implementing management plans, they will be creating documents which may be subject to later production (for example to a regulator or pursuant to a request made under freedom of information legislation or in court proceedings). They should therefore ensure they have in place appropriate document creation and retention processes and protocols which are communicated clearly to staff who are involved in preparing and implementing plans and dealing with student complaints

We have a wealth of experience of advising on these and related issues. For further information please contact: