October will bring the Competition & Markets Authority (CMA)’s long-awaited compliance audit looking at how universities have taken account of their guidance on consumer protection law, published in March 2015.
This publication was welcomed by the NUS: ‘This has the potential to make a huge positive impact on students, protecting them against unfair practices that unions have previously highlighted’ (NUS, 2015) and it’s easy to agree with the intentions behind wanting to tackle potential abuses of power. However, although I support the need to publish clear and informative course guides, the intervention by the CMA and the threat of legal challenge may ultimately lead to a diminished level of course detail put into the public domain and a stifling of innovation in curriculum design.
The guidance states that in order to comply with CPRs (Consumer Protection from Unfair Trading Regulations 2008) clear, intelligible, unambiguous and timely ‘material information’ needs to be provided at the student research and application stage. Material Information is ‘likely’ to include, amongst other things:
(iii) core modules for the course and an indication of likely optional modules, including whether there are any optional modules that are generally provided each year(iv) information about the composition of the course and how it will be delivered, and the balance between the various elements, such as the number and type of contact hours that students can expect …, the expected workload of students …, and details about the general level of experience or status of the staff involved in delivering the different elements of the course (CMA, 2015)
The requirement is to set this information out in detail at the point at which applicants ‘research’ where to study with the offer of a place on a course constituting a binding contract. It is uncertain and untested in a legal sense how clauses that allow universities to make changes to course (of different scope and scale) will be deemed to be ‘reasonable’. If all universities responded in a way that mitigated any risk of legal challenge we would be left with bland course information. This is because: –
- a conservative approach would see a course frozen from the point of offer (which may be 10 or 11 months prior to enrolment) through to the conferment of degrees some years later, with developments in the subject area influencing the curriculum only for subsequent cohorts of students.
- a conservative approach as applied to the course information made publicly available would remove any aspect that could not be assured to be a core element in however many years hence (when it would be delivered). This may mean that electives that for many applicants attract them to study the course in the first place may be removed from the information provided.
Universities also have to balance the demands of the CMA with other requirements, such as the Wider Information Set (HEFCE) and UK Quality Code Chapter C (QAA). The latter includes a similar list of information that needs to be provided to prospective students but goes much further (see Indicator 3 on page 9-10), including information on resources and facilties; support services; opportunities to develop transferable skills; data on how the programme is performing; and opportunities for student engagement. One would expect that the legal threat from the CMA would carry more weight and become the principal reference point.
Meanwhile, it will be interesting to see whether the consumer law audit does damage to universities’ relationship with students. The NUS guidance[ii] includes messages aimed at rogue institutions who give students a bad deal: “Students and Students’ Unions are encouraged to submit evidence of non-compliance directly to CMA” and “Students have the right to take legal action against their institution if they believe that consumer law has been broken. They can use CMA guidance as a reference.”
We’ll see over the next few weeks what form the CMA’s audit takes, how it is received and the outcome for the sector.
Boryslawskyj, M. (2015) ‘Students as Consumers’ Association of Heads of University Administration (AHUA) Blog post – April 30, 105. Available at: https://ahuauk.wordpress.com/2015/04/30/students-as-consumers/ [Accessed 28 September 2015]
[i] Competition & Markets Authority (CMA) (2015) ‘Advice for higher education providers and undergraduate students – Information on your consumer law obligations/rights’. Available at: https://www.gov.uk/government/collections/higher-education-consumer-law-advice-for-providers-and-students [Accessed 28 September 2015]
[ii] National Union of Students (NUS) (2015) ‘CMA guidance to HE institutions on students rights in consumer law’. Available at: http://www.nusconnect.org.uk/resources/cma-guidance-to-he-institutions-on-students-rights-in-consumer-law [Accessed 28 September 2015]
Which? (2015) ‘Higher education: a review of providers’ rights to change courses’. Available at: https://press.which.co.uk/wp-content/uploads/2015/02/Which-Investigation-Higher-education-courses-a-review-of-providers-right-to-vary-courses-2.pdf [Accessed 28 September 2015]