OfS steps in on consumer rights

Universities are required, just like any business, to meet consumer rights obligations. Contracts need to be fair, transparent, and clearly expressed – failure to do this is ultimately is a matter for the courts, not the regulator.

That said, the Office for Students has always been keen to promote consumer rights in the sector. There are three conditions of registration (C1, C2, and C3) that refer to consumer law (and link to Competition and Markets Authority (CMA) guidance), and the regulator has a partnership with National Trading Standards.

This has been bolstered today by two new publications – a set of example terms and conditions that trading standards (and thus OfS) feels might potentially be in breach of consumer law – and three case studies.

The latter refer to specific instances where OfS have referred concerns to National Trading Standards (NTS) – we get case reports from three providers. It is important to note that these are instances where the provider in question has addressed the issues in question, and in each no further regulatory action is being taken.

ICON College of Technology and Management

The issues here were in the terms and conditions offered to applicants. There was requirement that students cover any variation of fees if they had to change course within the provider if their initial course was not available, and a clause that maintained that the provider could vary “minor and material” elements of the offered course where there is no material detriment to the applicant (with students being able, in material cases, to withdraw from the course without liability or transfer to an alternative course.

NTS felt that the fee variation issue – where students were paying extra to do a different course because of a choice by the provider – was in breach of CMA guidance. On the variation of course elements issue, NTS was unhappy with the wording (it was not in “plain and intelligible language”) and the remedy offered was seen to prevent or hinder students from seeking appropriate remedies.

A clause relating to the college making “reasonable endeavors” to providing online delivery, was seen as limiting liability for losses. Likewise, a clause setting the maximum liability at 100 per cent of tuition fees was also seen as problematic – an “force majeure” clause did not contain information on reasonable steps that the provider would take in such circumstances.

Finally – the contract was flagged as superseding all previous (written and oral) contracts. Such clauses are seen as unfair – other information given to a student should be treated as a contractual term.

After taking advice from NTS, OfS asked ICON to amend the contract – and this has happened for the 2024-25 academic year.

London Bridge Business Academy

The entire terms and conditions document was written in “capital letters” and had “poor grammar”.  It was one side of A4. It contained inconsistencies about the costs that a student might occur. As you can imagine this was not seen as “clear, intelligible, and unambiguous”, and the case study highlights clauses around fee repayments if a visa was refused.

One clause reserved the right for the college to:

change any aspect of a course including availability of the course, course dates, tutors’ timetables, curriculum and the material at any time. It is students’ responsibility to be aware of the changes.

This was seen as an unreasonably wide discretion to vary the course.

Again the document was updated (and, in this case, reformatted) for the 2024-25 academic year.

University of Manchester

The issues here related to institutional liability. The contract claimed that liability would be limited to the total amount of tuition fees payable, and that the the provider would not be liable for events “outside of our control” (a “force majeure” clause). The latter included strikes, industrial action, and staff illness – OfS and NTS felt these were, in fact, within the control of the university. A clause allowing for the increase of tuition fees based on an annual review was seen as giving “broad discretion” to vary fees. Finally, there were concerns about unclear wording in a clause relating to remedies for not being able to accommodate a student on their chosen course.

Manchester made changes to the terms and conditions in question starting with 2023-24 academic year.