Education e-briefing - The Student Contract: “CMA” Implications of the Provision of Pastoral Support

• United Kingdom

• Education - Briefings

11-07-2017

Welcome to the ninth 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 implications of the provision of pastoral support.

Much of the recent “CMA” discussion of the application of consumer law to the student contract has focussed on the educational and academic-related services which institutions provide, including course content and delivery and course-related support such as library and IT services. These educational and academic-related services (and the respective rights and obligations of students and institutions in relation to them) are commonly set out in sets of student terms and conditions and related documents making up the student contract, in which they are presented as services contractually promised by the institution. A failure by the institution to deliver these services (or a failure to deliver them in the way described) may expose the institution to potential challenge by students for breach of contract.

Less focus has been given to the nature and scope of pastoral support offered by institutions to students (for example, counselling and wellbeing support) with the result that it is not always clear what types and range of pastoral support an institution is offering and whether provision of pastoral support is made on a contractual and/or discretionary basis.

In order to reduce the risk of student complaint or claim for breach of contract (or, indeed, of breach of the institution’s duty of care), an institution should ensure that it sets out clearly not only the nature of the pastoral support services it is offering but also the limitations on that support (for example, stating clearly whether access to a counselling service is subject to opening times, waiting lists and/or student demand on the service or limited to a maximum number of sessions). The nature of the support and its limitations should be made clear to prospective students at the stage when they are researching to which institutions to apply and before offers of places on courses are made. In so doing, institutions will not only be assisted to manage the expectations of students (and their parents) in relation to the nature of pastoral support offered but also to define the scope of their contractual responsibilities (and hence potential liability) for pastoral support.

Once defined, institutions will need to ensure that they actually deliver the pastoral services described, as any gaps between what is promised and what is delivered could expose an institution to challenge for breach of contract and other complaint.

How variation clauses (including force majeure provisions) apply to pastoral services should be given specific consideration by institutions.

Institutions may wish to review what they say to prospective and existing students (and when) about the nature, scope and limitations of the pastoral services which they offer and the basis on which the institution purports to have powers to make changes to those services.

Next time - The Student Contract: “CMA” Implications of Responding to Allegations of Sexual Assault

Eversheds Sutherland 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 Sutherland 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.