At one time, in the not too distant past, the concept of “students as consumers” was always followed by a question mark, but in March 2015 the Competition and Markets Authority (CMA) published their advice for UK higher education providers, which made it clear that consumer law generally applies to universities’ relationships with their undergraduate students. The advice is intended to help universities comply with these legal obligations. Consumer law applies throughout the United Kingdom, so this guidance is relevant to all.
The CMA argue that consumer law is an important part of the wider academic relationship between higher education providers and students – does this resonate within your institution? I am not sure many academic colleagues would include ‘consumer law compliance’ in their top 10 tips for a successful student relationship!
The consumer legislation isn’t “new law”, but the CMA published their advice following a recommendation from the Office of Fair Trading (the CMA’s predecessor body) that although the evidence submitted by universities (following the OFT’s call for information) did not suggest the HE sector was ‘characterised by pervasive bad practices, a compliance review was necessary to see if some rules for students would fall foul of consumer protection law and to clarify universities’ responsibilities under this regime.
This view was supported by the Which? Report – ‘a degree of value’ that highlighted some concerns they had in relation to the fairness of terms and policies universities applied to changes to courses following enrolment. The report suggested best practice would only allow for changes that are beneficial to students, that are non-material or genuinely outside the university’s control, or where the affected students gave their consent.
When the CMA guidance was released it attracted much publicity. To complement the guidance to institutions, the CMA has also published a quick guide for undergraduates, together with a more detailed guide for students and their advisers. The NUS has also produced dedicated advice for students’ unions. Whether or not this increased publicity will impact on student behaviour and approaches remains to be seen.
Overview of the Guidance
The guidance relates to three specific areas of practice, where the CMA considers universities may need to take action, or modify existing practice in order to comply with the law:
- Provide students with clear, accurate and timely information to enable them to make an informed decision about what and where to study;
- Ensure their terms and conditions are fair, for example, so they cannot make surprising changes to the course content, or cost; and
- Ensure that their complaints handling processes are accessible, clear and fair.
Next steps
You may have already convened a group within your institution to review the guidance against current institutional practice, to identify any improvements or amendments required. It is important to ensure institutional practice is aligned and that academic/service departments operate consistent processes. You will want to ensure that your relevant staff are aware of the guidance, and understand and follow your own internal procedures and practices, since institutions are responsible for the actions of their staff, who are acting in their name or on their behalf.
The Association of University Legal Practitioners (“AULP”) are participating in a working group in May 2015 with the CMA/UUK; you may wish to consider representation at this meeting with your legal colleagues.
HEFCE will be running a consultation in Autumn 2015, in relation to how they can help students ask the right questions to make sense of the information available and help them navigate this. HEFCE is also working with the NUS and other representative organisations to help universities explain what students can expect in the event of a substantial course change or closure.
The CMA have also recently released guidance on the HE regulatory framework and Smita Jamdar has blogged about this. Although not directly linked to their work on consumer protection, it suggests a ‘baseline level of quality’ regulation is needed for both traditional and private universities.
What if you get it wrong?
The CMA will continue to monitor the sector and is going to undertake a review in October 2015 to assess compliance. Students and Students’ Unions are encouraged to submit evidence of non-compliance to the CMA directly, to assist with this review. The audit is likely to be politically sensitive and heavily publicised; as such, serious cases could attract significant negative publicity.
The CMA can bring civil proceedings or criminal prosecutions against universities in breach of the law; they may also work with QAA and raise concerns with them over the quality of provision.
The Advertising Standards Authority could intervene if publicity/marketing materials break the advertising codes of practice. The codes will generally apply to course information contained in prospectuses, leaflets, posters and on university websites.
What about postgraduate students….
As a final thought, the distinction reached by the CMA between undergraduate and postgraduate students is somewhat vague and it will be interesting to see if this is developed, or challenged going forward?