Which way now for university terms and conditions?

Unless you’ve avoided all forms of media this morning, you’ll be aware that the consumer organization Which? has produced a report on higher education, assessing providers’ rights to change courses.  The report is based on responses to FOI requests made by Which? “requesting information about the changes they make to courses once students have enrolled”.  The precise terms of the request aren’t reproduced, which is a pity, because the specificity or otherwise of the request might have influenced how much or how little information individual institutions chose to provide in response and thus how complete an information base Which? had on which to draw its conclusions.

 

Those conclusions are, broadly, that there is an awful lot of variation in practice in the sector and some of it is better than others. Generally the sector could do with revisiting how course changes and closures are handled to minimize adverse impact on students.  Having established this, Which? could have used this report to facilitate, promote and if required lead a much needed dialogue within the sector, involving other stakeholders as necessary, to develop a much better way of doing these things. Instead they have chosen to adopt a rather blunt-edged “name and shame” approach most likely to raise hackles and divert attention onto ultimately rather unconstructive debate about legal drafting and interpretation.

 

This is disappointing. After all, the wording of the contractual terms is only one part of the story (and when viewed through the narrow lens of the UTCCR, the only part). What an institution actually does in practice when changing a course is another, equally important part. I know some institutions whose written terms may not be to Which?’s liking but who have in practice approached changes to courses very much in the manner described as “best practice”. Equally, I have seen others with well-drafted terms, and yet whose actual practice was much less student-focussed. 

 

Which? has taken the rather unusual step of publicly declaring named institutions to be acting unlawfully.  Whether or not something is unlawful is of course a matter of fact, rather than opinion, and usually regarded as something only a court can decide. And yet the report identifies individual institutions who have, according to Which?, “unfair terms” or  engage in “unlawful practice”.

 

This is in contrast to the approach of the OFT and the CMA, both of whom readily acknowledge that only a court can decide that a term is unfair.  The difference in approach is exemplified by a statement in Which?’s report that “the OFT published a report into this issue last year, which specifically stated that these terms [i.e. terms which prevent students graduating for non-tuition fee debt] are unfair”. I’m not sure the OFT did any such thing.  It spoke instead of terms being “particularly open to objection” and that “terms that apply to all debts, regardless of amount, or circumstances of non-payment, and in a blanket fashion are particularly open to suspicion of unfairness.”  And their overriding position was “ultimately only a court can decide if a term is unfair”.

 

I am not sure, therefore, how far Which?’s opinion actually takes us in deciding what is and isn”t unlawful.  And therein lies the rub. We now have a report, published by a respected consumer body, that identifies 26 named institutions as acting unlawfully. Their terms are not even reproduced for us to judge for ourselves, although some examples are.  It really does not seem particularly satisfactory to have a public report that makes generalized allegations of unlawfulness without any court ruling, or any prospect of one.

 

Which? describes its mission as to “make things better for consumers”. In choosing to adopt a confrontational approach in this report, it has, in my view, missed a valuable opportunity to do just that for both students, and indeed the sector.

 

 

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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