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‘Terms that may be open to challenge’: Competition and Markets Authority warns Higher Education Institutions

  • 8 January 2024
  • This blog was kindly authored by Daniel Amery, LLB graduate from UCL and Operations Director at lawprof.co.

Consumer Rights Legislation exists to ensure that powerful traders do not take advantage of their consumers through unfair terms and actions. However, many academics are unaware that students are one such example, owing to the high fees charged, the high level commitment, and the potential consequences of onerous terms that are impossible to negotiate.

The Competition and Markets Authority (CMA), which replaced the Office of Fair Trading (OFT) in 2015, is primarily responsible for regulating Universities’ terms and conditions, aided by other bodies such as the Office for Students (OfS) and Universities UK (UUK). This blog will focus on the CMA, and some important advice that may have been overlooked by many interested in education and consumer rights.

In its most recent advice to Higher Education (HE) Institutions, the CMA has suggested that certain limitation clauses in student contracts-to-educate may be unfair and open to challenge under the Consumer Rights Act 2015 (CRA). At 5.40, the CMA lists several “limitation of liability terms that may be open to challenge”. These include:

  • “a public health emergency (for example pandemics)”
  • “staff illness or industrial action”

In effect, the CMA has warned that such terms may be unlawful, because they seek to oust legal liability for fundamental service failures. As I will seek to demonstrate, the pandemic and industrial action have caused significant educational failings below what students are owed under the contract-to-educate.

In relation to these issues, perhaps my own undergraduate experience (2020-2023) will help illuminate why these terms may be open to challenge.

The former meant that, instead of meeting lecturers and fellow students, I invested £9,250 in an academic year of viewing pre-recorded videos, participating in zoom calls with strangers (most of whom had their mics and cameras turned off), and applying for limited seating in the few study spaces which remained open on campus. Not to mention the “welcome week fair” which was little more than a video conference with breakout rooms in place of society stalls. This form of education continued throughout second year, intermingled with in-person instruction as lockdown measures waned.*

By this point, I had one year left to go. Then there was the marking boycott.

I did not discover my degree classification until late October this year, with feedback that was little more than a sentence or two. Students in my cohort noticed huge grade disparities despite, on review, their work being of substantially the same quality. This may well be because some works were marked by lecturers, whilst others were marked by external assessors. Staff and faculty heads are currently ignoring complaints emails relating to appeal. This is additional to the regular strike action which meant educational content was changed and removed with little advance notice.

These novel disruptions raise serious questions over the nature of the contract-to-educate and provide us with an opportunity to question what exactly students invest so much time and capital into. The physical aspect of university is widely marketed on websites, at open days, and in promotional material, providing exclusive opportunities for events, networking, collaboration, dining, and focus. Meanwhile, an appropriate degree classification following the marking and grading of work is arguably the most fundamental part of the investment. Even the highly introverted student, with no interest in university “life”, should expect timely and correct assessment outcomes.

It is, therefore, unnerving to discover that my own university has excluded liability for changes due to any “pandemic, epidemic, political unrest, government restrictions and concern with regard to the transmission of serious illness”, as well as “strike and other industrial action” (at 12.2). This follows after several top universities appear to have changed their standard terms to oust liability for covid disruption, including Edinburgh, Glasgow and Leeds. More research in this area is necessary to elucidate which Universities have included such clauses. What is perhaps more unnerving is that, according to a source at Universities UK, they “do not have a programme of work in [this] area”.

The CMA guidance is therefore welcomed for addressing a fundamental inconsistency in higher education. Students are consumers under the Consumer Rights Act, but, unlike commuters eligible for compensation for delays and purchasers entitled to refunds for low-quality goods, universities do not offer the same consumer-compliant guarantees. This is exemplified by the fact that HE education contracts are normally vague, making no reference to expected contact hours, to marking timeframes and to the location of study (or lack thereof). Indeed, having a vague contract ensures liability is minimised. With no explicit terms to grasp on to, dissatisfied students can only complain on the basis of implied terms.

I implore policy-leaders and regulators in this area to challenge these terms and to consider the deeper nature of the contract-to-educate. Is the physical institution included in the bargain? Or is it reducible to online provision, much like the Open University, which charges £6,924 p/a?**

Is timely and accurate grading included, or can severe delay and variance be permitted without challenge? More fundamentally, as argued by Amanda Fulford, should the HE contract be vague to allow for the openness of education? Or should there be a specified basic minimum by way of quantum and quality?

I would also point to the illuminating work of Dennis J. Farrington, co-author of The Law of Higher Education, who has been pushing for more than thirty years for a consumer-complaint contract-to-educate, but who, according to his ResearchGate Profile, is “still waiting”.

Notes

*Of course, as a first-hand observer, I may be accused of bias. But the inadequacy of online tuition as opposed to in-person tuition is supported by research:

Watermeyer and others: an “overwhelming majority” of students tended towards a negative view of online migration

Salvador del Saz-Salazar and others: students are unwilling to accept the same fees for the same course delivered remotely

Wiltshire: 90% of students said they ‘strongly or somewhat prefer’ in-person teaching

**For interest, read Ford r RPI (a US Case): “Some institutions of higher learning provide curriculum and instruction that are offered on a remote basis through online programming which do not provide for physical attendance by the students. These products are significantly cheaper than competing in-person product offerings.”

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1 comment

  1. Ros lucas says:

    Happened to so many with little or no support to help make complaints or appeals.

    Such lack of consideration for student welfare, poor communication and feedback in the present system, makes it more important to ensure all those wishing to pursue a degree are made aware of options such as a Degree Apprenticeships or Open University.
    Much of graduate dissatisfaction with social life, peer and lecturer contact would then be possible, and no fees as well as a salary with an Apprenticeship or low fees at OU might appeal…

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