Education e-briefing - The Student Contract: "CMA" Implications of Pre-Contract Information

• United Kingdom

• Education - Briefings

21-03-2017

Welcome to the first in our series of fortnightly Student Contract: “CMA” Implications ebriefs for universities, colleges and private providers. These ebriefs highlight aspects of the application of consumer law to the student contract which pose challenges for the tertiary education sector.

This time we focus on the consumer law implications of the provision of pre-contract information to prospective students.

Since 1 October 2015, pre-contract statements made by or on behalf of an institution (for example, on its website, in its prospectuses or at its open days) about the courses or services it provides which are subsequently relied on by students in entering into a student contract with the institution will be treated in law as a term of the contract. This means that anything said or any information provided to prospective students could potentially form part of the student contract and the institution will be at risk of breaching the contract if it does not then deliver the particular course or service in the way it has promised.

It is therefore important that institutions assess the information (written and oral) that they provide to prospective students (including at open days, outreach events and interviews) about (for example) course content and delivery, work experience opportunities and pastoral support and ensure that they suitably qualify any statements at the time the statements are made. (It is not possible to look to “qualify” a statement simply by saying that the student cannot rely on that statement.)

It is also worth noting that statements relied upon by students in entering into the student contract cannot be changed by the institution after the contract is concluded unless the student expressly agrees to the change or where the institution is able to rely on a fair and lawful variation provision incorporated into the student contract. This may be relevant where the institution wishes to make changes, for example, to course content or fees/charges.

Institutions should also ensure that adequate disclaimers are included within documents such as the prospectus and on websites to mitigate the risk of making changes to information provided to students prior to contract formation. The actual content of these disclaimers will be assessable for fairness under consumer law.

In light of the above, institutions may wish to review their variation provisions and disclaimers and provide training to staff and (if relevant) student ambassadors to ensure that inaccurate information is not provided to prospective students.

Next time - The Student Contract: "CMA" Implications of the Presentation of Student Contracts.

Eversheds has a wealth of experience advising on student contract / “CMA”-related issues in the HE and FE sectors. If you would like to discuss how Eversheds may assist you in managing any of the issues addressed above (or any other student contract/consumer related issues) please contact Siân Jones-Davies or Eve England.