Our response to the CMA consultation questions on draft advice on consumer protection law

Information provision

We agree that the type of information suggested in paragraph 4.8 is in broad terms correct. However, in our view the guidance needs to be more sensitive to the time lag between applicants first starting to think about which university and course they might want to consider (the beginning of the research and application stage) and their eventual enrolment on a programme of study which could be nearly two years. For example, specifying the core and optional modules of study for the third year of a programme would mean doing so up to five years in advance. However, research in the relevant programme discipline and/or pedagogical advancements might mean that elements of the course need to be developed or indeed altered by the time the student reaches that stage of the programme.

Similarly, rules and regulations may develop and enhance as the legal & regulatory framework around HE develops further.  For example, institutions may shortly need to introduce new processes for dealing with the duty to prevent people from being drawn into extremism proposed in the Counter-Terrorism and Security Bill 2014. This is not something that could have been anticipated 5 years ago and yet might indeed result in students’ being subject to terms that some would consider important and/or surprising.  We do not think that students’ interests are best served by “fossilising” the offer in a way that cannot take into account the rapid change that can occur in some disciplines and/or in the delivery of higher education over the lengthy engagement that applicants/students may have with their institutions. We think applicants would be better and more meaningfully served by providing the sector with guidance that recognises there is an inherent likelihood of some change to the relationship given its lengthy duration.

Chapter 4

We don’t think the analysis of there being two separate contracts (to admit and then to educate) is a helpful one, despite having circulated for many years. This analysis evolved to address the historic practice whereby very little information was provided to applicants when they accepted the offer of a place, and the bulk of material information, such as the details of the course, the relevant rules and regulations and any additional costs and charges were only made available on enrolment. At that stage, students would sign a declaration that they undertook to be bound by the full panoply of the rules and regulations of the institution (without necessarily knowing what they were or having a chance to read them). If there was only one contract to admit and teach, then all this detail would be post-contractual and not binding. The two contract theory created a solution to this problem, but was fraught with other difficulties.

In the current consumer protection climate, where the emphasis is on providing applicants with all relevant material to help them make an informed choice at the offer stage, and where it is clear that having provided the information it may not be changed other than in narrowly defined and previously notified circumstances, why does this not represent one single contract from the point at which the student accepts the offer?

The advantages of this more simple interpretation are reinforced by the rather confusing approach to the “enrolment contract” set out in paragraphs 4.25 – 29. If this is a different contract to the contract to admit, with “different obligations” on the parties, the potential for new obligations being introduced of which the student was previously unaware remains, undermining the concept of “no surprises” that underpins the entire consumer protection regime. If, in practice, no new obligations can be introduced at this stage, then what is served by providing the same information all over again?

We agree that the single contract with the institution and is concluded at a distance and that information required by the CCRs should be provided. We repeat the points made above about the fact that the duration of the contract makes the possibility of evolution of the relationship almost inevitable. We think that the guidance ought to encourage institutions to be clear and transparent about what might change and paragraph 4.21 is helpful in this regard, but could be emphasised.

The guidance should in our view provide further details of the CMA’s views on how institutions should deal with situations where performance of the contract is to begin before the 14 day cancellation expires as can happen where applications are processed through clearing and adjustment, or where applications are made and accepted outside the UCAS cycle.

Terms and conditions

We have no comments


Complaints handling

We assume that the CMA will review these sections of the Guidance to ensure that, though unlikely, there is no inconsistency with the OIA’s recently published Good Practice Framework. Although the two documents serve separate purposes and reflect separate obligations, it would be unhelpful for students if the sector was subject to inconsistent guidance.

We think that some of the examples given of “problematic complaints procedures” (paragraph 6.7)  are not clear or helpful:

1.    Many procedures will state that a HE providers’ view on academic judgment is final.

2.    There may be provisions for HE providers to close complaints if, for example, the complaint is vexatious or frivolous.

3.    There may be complaints that fall outside the complaints procedure on grounds of eg delay or their subject matter and there may be no scope for escalation of a decision to refuse to consider them.

We are concerned by the suggestion that inadequacies in institutional complaints procedures and/or a failure to follow complaints procedures could, in effect, amount to a criminal offence. Although we follow the legal analysis that has led to this conclusion, we think it unlikely that “not investigating complaints properly” (para 6.9) would pass the high threshold for criminal liability that we anticipate a court would wish to apply.

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
W: www.sghmartineau.com


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