Consumer Protection Law and the Applicant Experience SPA Event Wales- Cardiff University, 2 December 2015 Janet Graham, Director of SPA

What is SPA and what do we do? SPA promotes fair admissions and access to higher education in the UK by developing and leading on good practice in the recruitment and selection of students.  We undertake, evaluate and commission research to support evidence- based good practice in HE admissions throughout the UK  SPA has core funding from UCAS and support from HEFCW and is independent and objective in the work and support it provides  We are not auditors, regulators, lawyers, a professional body, charity or membership organisation  We are a small team providing admissions expertise, advice, resources, events etc. for you, generally free at the point of use for all UK HE providers.

The CMA advice for HEPs focused on compliance with the following consumer protection legislation:advice for HEPs  Consumer Protection from Unfair Trading Regulations 2008 (CPR)  Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR)  Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) Plus Consumer Rights Act 2015 (from October) This is existing law The CMA view © CMA

Consumer protection law : Why now?  Consumer protection law will generally apply to the relationship between HEPs and undergraduate students.  Consumer Protection Law has become more important because  A greater proportion of HE providers’ funding is coming directly from students, particularly in England AND students are in a weak consumer position because  For most students deciding what and where to study will be a ‘one-off’ decision.  HE providers are ‘traders’ and students are ‘consumers’ for the purposes of the legislation.

The CMA view  Consumer law sets out minimum standards that apply to various aspects of an HE provider’s dealings with applicants/ students to help ensure students: o get the information they need to make informed choices about what and where to study o are treated fairly during their studies o are equipped to resolve problems if things go wrong  HE providers who do not meet their obligations may be in breach of consumer law and risk enforcement action  Students/applicants can take independent legal action

CMA’s enforcement powers Civil or criminal action Penalties Undertakings Warnings Dialogue Est means/ Compliance partners Information, advice and education

Consumer Protection Regulations (CPRs) The CPRs cover ‘invitations to purchase’, most of which relates to what is referred to as ‘THE MATERIAL INFORMATION’ about the goods or services. Unfair trading that is prohibited  advertising goods that don't exist  omitting material information needed for an informed decision  providing material information in an obscure or untimely manner  aggressive sales tactics  not following up a commitment to a code of practice

Consumer Contracts Regulations (CCRs) The CCRs cover the contract itself, most of which relates to what is referred to as ‘THE PRE-CONTRACT INFORMATION’. Information requirements  a description of the goods or service, including how long any commitment will last  the total price of the goods or service  details of any right to cancel - including a cancellation form  information about the seller Cancelling  Right to cancel up to 14 days from day you receive your goods.

Unfair Terms Regulations (UTCCRs) The UTCCRs cover the requirements of fairness in contract terms. Requirements  No significant imbalance in the parties’ rights and obligations to the detriment of the consumer  Made in ‘good faith’  Expressed in plain, intelligible language.

Information - student research and application  HE providers must give prospective students the ‘material information’ they need to make an informed decision before they apply, including:  course content, structure and how it will be delivered  total course costs (including any extra costs students are likely to incur)  non-course-related information, e.g. accommodation options  any important and surprising rules and regulations.  any information that is likely to affect a prospective student’s decision

Information - student research and application Information must be o accurate, complete, clear, unambiguous, up front, timely and accessible, e.g. website, prospectus, open days.  This applies whoever provides the information on behalf of the HEP and whether it is written, visual or spoken.  The person providing it could be paid or unpaid e.g. student volunteer/ ambassador  It must be easily accessible before the applicant applies, i.e. not behind an applicant portal  HE providers must provide information about how to complain

Information – examples of breaching obligations Not providing 'material’ information and/or not providing it at the right time  information is difficult to find and access e.g. it is on a website that is hard to navigate or held in a number of different places  failing to provide information about extra course costs up front  failing to make clear that certain modules must be completed for the award to be accredited  only making important information available to prospective students after they have applied  failing to make prospective students aware at the earliest opportunity of changes to information contained in a prospectus

The recent ‘Which? Report’ Higher education: Audit of providers’ website information provision. Which? Investigation report 23 October 2015  ‘Which?’ looked at a sample of 50 HEPs in September 2015  76% failed to provide at least one piece of material information.  Report did not received good press (in HEPs) for its lack of thoroughness and timing – but the Consumers Association has the right to do this.  However some emerging best practice and encouraging signs that HEPs are complying or working towards complying

Offer When an applicant accepts an offer of a place they enter a contract with the HE provider At this stage HEPs must:  obtain applicants’ agreement to change anything stated at the information - student research and application stage;  provide the pre-contract information in a ‘durable medium’ o list core modules of the programme o the duration of the programme/course o state fees & other costs and/or how these will be calculated o how increases will be calculated o specify number and type of contact hoursContinued..

Offer o draw attention to your full terms and conditions, make these accessible and flag particularly important terms, o make clear what could change in the future, if you anticipate that some things might change, this should be made clear in the pre-contract information by setting out what could change, when and how  All this to be provided in a ‘durable medium’*  give applicants notice of their 14-day right to cancel. See SPA website: Facts from Eversheds and CMA on consumer protection and durable medium.

Full and fair terms and conditions These include your general regulations and other regulatory documents. They must strike a balance between your rights and obligations and those of students. For example: no wide discretion to vary course content or increase fees; no limitation on liability for non-performance; no blanket assignment of intellectual property rights to the University; no academic sanctions for accommodation debts; easily located and accessed by students and applicants; important or surprising terms highlighted; written in plain and intelligible language.

Terms and Conditions  Terms should be easily located and accessible to prospective students  Important or surprising terms should be specifically brought to prospective students attention before they accept an offer  Terms should be written in plain and intelligible language  Terms should strike a fair balance between the rights and obligations of the provider and student  they should not allow a wide discretion to change important aspects of the course or fees Providers will not be able to enforce terms and conditions which are found to be unfair – a disclaimer does not make it fair

Complaint handling  Provide information about separate complaints procedures for applicants and current students;  Ensure complaints procedures are fair, easily located, have clear timescales and are accessible to both applicants and students; for applicants they must be available before they accept an offer  Provide clear and accurate information in writing and (where applicable) verbally. e.g. where a course is in partnership with or awarded by another HEP be clear where responsibility for complaints lies;  Complaints procedures are more likely to comply with consumer law where they follow any guidelines published by a third party complaint scheme (OIA for students, but doesn’t cover applicants)

Complaint handling  ensure that your staff are trained in and follow your complaint handling procedures and timescales in practice. See:  SPA good practice statement on applicant complaints and appeals, October 2015 SPA good practice statement on applicant complaints and appeals, October 2015  QAA UK Quality Code for Higher Education - Chapter B2: Recruitment, selection and admission to higher education, October 2013 QAA UK Quality Code for Higher Education - Chapter B2: Recruitment, selection and admission to higher education, October 2013

Consumer Protection – Risk Analysis If an HE provider failed to fulfil the terms of a contract and a cohort of 100 final year undergraduate students sought refunds of their fees and costs: Fees for three years: 100 x 3 x £9,000 = £2,700,000 Living costs for 3 x 9 months: 100 x 3 x £10,000 = £3,000,000 Total = £5,700,000 (N.B. This doesn’t include damages for time lost and impact on future career earnings.)  Inherent strategic risk: likelihood = likely? impact = moderate?  Control actions required to reduce likelihood.  For Welsh students – the fee the student has a loan for could be refunded, what about the government element? (not a consumer protection issue)

Possible Strategic Controls Managing Change  Planning ahead e.g. 5 years for UG core curriculum (from prospectus to final year delivery = 5 years)  Planning ahead: courses validated before advertise  Setting and respecting deadlines for change  Being aware of what might change and why (is it reasonable) and communicating it well internally and externally Marketing information  Raising awareness of corporate responsibility for what is said about your educational services offering  Web governance – locating and resourcing a central authority to remove inaccurate information

Possible New Operational Controls  Offers to include essential pre-contract information: e.g. modular content, full statement of fees and charges, contact time etc.  Reviewing ‘full terms and conditions’ and retaining cohort versions: e.g. cohort versions of general regulations, date stamped for start of course  Providing terms and conditions in ‘durable media’  Managing expectations of service levels  Mechanisms to ensure a consistency in approach among your different departments and faculties as well as the centre;

Possible New Operational Controls  Being clear about the roles of different marketing channels: prospectus, course database, departmental web pages  Cleaning up/ removing old information on the web and ensuring consistency of information across sources, one version of the truth  Management of social media: clarifying the distinction between individual accounts and institutional accounts.  Staff awareness, understanding and following both the CMA advice and your own internal procedures and practices, as HEPs are responsible for the actions of their staff, who are acting in the university’s or college’s name or on its behalf.

What next?  Each HEP will need to act, you can’t ignore it: non-compliance could result in enforcement action by the CMA.  The CMA is conducting a compliance check and has been since 1 October 2015  Universities UK are working with the CMA, the Academic Registrars Council, the Association of University Legal Practitioners, SPA and others to raise awareness of the issues.  The new Consumer Rights Act in force from 1 October 2015, makes it easier for authorities to investigate and prosecute.

Consumer Protection Obligations How do you ensure :  You give prospective students the clear, accurate and timely information  Your terms and conditions are fair, accurate and accessible  Your complaint handling processes are accessible, clear and fair? If you are confident, o What do you do? o How did you plan/agree it? o How are you reviewing it ? If you aren’t confident, o What more could you do? o How can you plan/agree it? o How should you review it?

…. thank you