Students & the Consumer Rights Bill: Opening Pandora’s Box

Whilst preparing for a training session recently, I had cause to revisit the draft Consumer Rights Bill which proposes measures that, if implemented as drafted, could have a profound effect on the student contract. I decided to check where the Bill had got to in terms of the parliamentary process and found that not only had it been debated on 13 May 2014, but the student/university relationship had warranted a specific mention, albeit only to confirm that no specific consideration had been given to how the Bill should apply to it. Stella Creasy MP made the following point:

Unfortunately, the Minister with responsibility for higher education tells us that no meeting has taken place with external stakeholders about how the Bill will affect tuition fees. That might be because in Committee the Minister was not entirely sure whether students were consumers—having spoken to students about their consumption patterns, I think we can agree that they are when it comes to paying tuition fees. That is why, when the Minister responsible for higher education tells us that there have been no meetings with student representatives, higher education providers and universities on the implications of the Bill, we are rightly worried...... Many of us may remember some of our university lectures, some positively, some negatively. The fact that we would have the right under the legislation to complain that they had not been prepared or delivered with reasonable care and skill opens that Pandora’s box.”

Sadly, the response on behalf of BIS did not inspire confidence that these valid concerns will receive the attention that they deserve. There thus remains a risk that the provisions of the Bill as drafted will create an unworkable legal framework that does not reflect the underlying relationship in any meaningful sense, and as such creates an architecture of expectation and a system of “redress” that is itself impractical and unhelpful. For example, in the university/college context, some of the proposed changes would mean that:

  • Unless expressly qualified, anything that is said or written to the student by or on behalf of the university/college about the institution or the service will be a term of the contract, if it is taken into account by the student when deciding to enter into the contract, or when making any decision about the service after entering into the contract. One only has to compare the volume of information generated by or on behalf a university or a college compared to, say, a plumber or an estate agent to see immediately the potential problems that lie ahead.  In addition, basing the contract on the bits of information taken into account by each applicant/student at each stage of the process suggests multiple individualised contracts rather than standard terms.
  • Any breach of the terms incorporated in this way will give students the right to seek “repeat performance” or a reduction in the fee. What would a repeat performance mean in this context – a re-run of a module, an assessment or an entire course? The reduction of the fee will be available seemingly even if the breach does not relate to the service, and without the need to prove a loss. So will, for example, students whose overall experience of the campus is impaired by substantial building works be able to seek a reduction in the fee, notwithstanding that the course was in all other respects delivered as promised? Not to mention who should get the refund – the student or the student loans company?
  • The right to limit the institution’s liability for breach, even where otherwise reasonable to do so, is likely to be significantly reduced, as would the right to make changes to published course descriptions and content. Though rarely relied on in practice, these disclaimers are both necessary and prudent as universities and colleges try to juggle the competing rights and interests of the whole student body.

If these provisions are not refined for the student/institution context, there is undoubtedly a risk that Pandora’s box will indeed be opened with consequences that are both detrimental and far-reaching for this most singular of relationships.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
DD: 0800 763 1332
M:  07909 925946
F: 0800 763 1732
International DD: +44 870 763 1332
E: smita.jamdar@sghmartineau.com
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