Get it in writing: student contracts, information and the impact of the CMA

With current (ongoing) press coverage of tuition fees, value for money and the formation of the Office for Students, it seems timely to reflect on the involvement of the Competition & Markets Authority (CMA) in the sector. [I last blogged on this subject in October 2015 prior to the CMA’s audit of universities’ compliance with their guidance, when I speculated on the potential for a more conservative approach to course development]

Last week, in a speech putting a bit more flesh on the bones of the remit of the Office for Students the HE Minister Jo Johnson said:

One of the first things I will be asking the OfS to do in exercising its new powers is to consult on the system-wide introduction of student contracts between students and universities.

These would set out what students can expect from their providers in terms of resource commitments, contact time, assessments, support and other important aspects of their educational experience. (Johnson, 2017)

Reinforcing the contractual position between students and universities indicates that the impact of consumer law and the CMA on the sector is here to stay and only likely to increase.

Since the publication of the CMA’s guidance for the sector on their consumer law obligations to undergraduate students, universities have put in place contracts typically comprising terms and conditions, which set-out the responsibilities of both the university and the student, and supporting documents about the course being delivered by the university (with content aligned with the ‘material information’ needed by applicants, as defined in the CMA’s guidance).

With this in place why then is the Minister signalling this priority for the Office for Students?

In one sense it is the continuation of a theme of the Government’s approach to higher education over a long period of time; that being successive attempts to solve a perceived problem that students do not get the information they need to make an informed choice of where to study. This has led to a number of interventions including:

  • Student Charters – a less ‘contractual’ and more marketing-friendly document than is now proposed, which was aimed at setting out what students could expect from their time at university and what was expected of them;
  • Teaching Quality Information and Unistats – websites collating information from universities and sector bodies at the course level, which was then packaged and presented for students;
  • The Teaching Excellence Framework (TEF) – the Gold/Silver/Bronze outcomes are the latest attempt at giving applicants the lowest common denominator headline judgement on a university. This direction had been hinted-at in earlier debates around how to present the outcome of QAA reviews in a ‘student-friendly manner’.

The assertion that students do not get the information they need is in part borne-out by a QAA-commissioned study conducted by King’s College London (Kandiko and Mawer, 2013). The project group conducted interviews and focus groups with over 150 students from 16 institutions with the aim of gaining a better understanding of student perceptions of quality and standards. A large number of recommendations are made in the report; the following example concerns student information:

Students perceived a lack of clear information about what most concerned them: essentially how can students find out if they are going to be (and what proportion of the time) taught by well‐qualified, trained teaching staff in small settings? Students felt these factors had the greatest impact on their academic experience and are metrics that they would be able to base their market decisions on.

Recommendation: To support student choice, there should be greater information and transparency over of information on how money is spent on teaching and learning activities, what qualifications do academics have in their subjects and for teaching, how are academics hired and trained and how teaching is structured and allocated. Information could include nuanced statistics on size of tutorials and seminars, department‐level teaching staff‐student ratios and staff teaching qualifications to allow students to choose courses offering what is most important to them. (Candiko & Mawer, 2013, 9)

The report does not suggest how the information could or should be provided and it is a sign of the times that the solution now proposed to the perceived information shortfall is to put in place standardised, formal contracts.

The CMA story so far

Since its arrival on the scene, the CMA has taken the following (public, as other undertakings may have occurred without being reported) action:

March 2015 CMA guidance published
October 2015 CMA compliance audit commences
November 2015 An undertaking was published for UCL due to students being prevented from graduating or re-enrolling because of non-academic debts.
July 2016 Compliance audit completed and published by the CMA. This tested institutions’ compliance with the CMA guidance with Psychology courses used as the sample.

The audit found that ‘good progress has been made by many HE providers, but some still have work to do to ensure they are fully complying with their consumer law obligations.’ (3, CMA, 2016a)

July 2016 A separate ‘summary of undertakings provided to the CMA’ was published. This showed three cases where universities had been found not to be fully compliant with the guidance and each had given an undertaking to make changes. The cases were:

  • University of Buckingham – using academic sanctions for non-tuition fee debts; unclear additional course costs; and terms allowing discretion to vary tuition fees.
  • Buckinghamshire New University – using academic sanctions for non-tuition fee debts; and deterring students from submitting complaints by preventing attendance at graduation.
  • Birkbeck, University of London – terms allowing discretion to vary tuition fees; and deterring students from submitting complaints by preventing attendance at graduation.
December 2016 An undertaking was published for the University of Glasgow due to students being prevented from graduating or re-enrolling because of non-academic debts.
February 2017 An undertaking was published for the University of East Anglia based on their approach to making course changes.

Source: Link to CMA Consumer Protection Review webpage 

The latest undertaking from UEA is noteworthy as it concerns changes to courses and how these should be handled. The change made by the University was to introduce two new compulsory modules in the 2nd year of their American Literature with Creative Writing course. These modules replaced optional modules and thereby reduced the level of choice available to students. As stated in the CMA press release ‘UEA considered that these changes enhanced the course and were of benefit to students’, however, they were seen by the CMA as a breach of consumer law by not consulting with current students or notifying prospective students about the change, giving them a right to withdraw and/or an offer of a place on an alternative course.

At its most basic, to meet consumer law requirements simply don’t make promises about things that cannot be kept. Courses need to be delivered as stated in the course document issued at the point of offer, except where contract terms allow changes to be made in specific circumstances and there’s a clear process for how these are handled.

There is clearly a question of balance between delivering to the contract and encouraging innovation in curriculum design as well as responsiveness to developments in the subject and feedback from students, external examiners and others. As QAA puts it: “Higher education provision is dynamic, and programmes are continually evaluated and revised to improve the learning experience for students and to maintain the currency of the curriculum.” (QAA, 2016, 4)

When the aspects cited by the Minister are added to the mix (“resource commitments, contact time, assessments, support and other important aspects of their educational experience”), depending on how these may be quantified the sector will be under pressure to respond again.


References

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/uploads/system/uploads/attachment_data/file/428549/HE_providers_-_advice_on_consumer_protection_law.pdf [Accessed 24 July 2017]

CMA (2016a) Consumer law compliance review. Available at: https://assets.publishing.service.gov.uk/media/5791e595e5274a0da300019f/compliance-review-findings-higher-education-undergraduate-sector.pdf [Accessed 24 July 2017]

CMA (2016b) Higher Education consumer law compliance review – summary of undertakings provided to the CMA. Available at: https://assets.publishing.service.gov.uk/media/5790ee07e5274a0da9000138/undertakings-from-3-univeristies.pdf

Johnson, J. (2017) Delivering value for money for students and taxpayers [Online]. 20 July 2017, Reform, London. Available at: https://www.gov.uk/government/speeches/jo-johnson-delivering-value-for-money-for-students-and-taxpayers [Accessed 24 July 2017]

Kandiko, C. and Mawer, M. (2013) Student expectations and perceptions of higher education. Available at: https://www.kcl.ac.uk/study/learningteaching/kli/People/Research/DL/QAAReport.pdf [Accessed 27 July 2017]

Quality Assurance Agency (QAA) (2016) Chapter B1: Programme Design, Development and Approval. Available at: http://www.qaa.ac.uk/assuring-standards-and-quality/the-quality-code/quality-code-part-b [Accessed 27 July 2017]


 

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