Consumer Protection Law and Admissions and Student Recruitment July 2016

What is SPA? SSet up in 2006 following the Schwartz Report Fair Admissions to Higher Education: Recommendations for Good Practice 2004 “ The Group recommends the creation of a central source of expertise and advice on admissions issues. Its purpose would be to act as a resource for institutions who wish to maintain and enhance excellence in admissions. Such a centre could lead the continuing development of fair admissions, evaluating and commissioning research, and spreading best practice.” UUK’s independent and objective voice on HE admissions, promoting professionalism, fair admissions and access to HE by developing and leading on evidence-based good practice in the recruitment and selection of students.

What is Fair Admissions? 1. be transparent 2. enable institutions to select students who are able to complete the course as judged by their achievements and their potential 3. strive to use assessment methods that are reliable and valid 4. seek to minimise barriers to applicants 5. be professional in every respect and underpinned by appropriate institutional structures and processes

“Equal opportunity for all individuals, regardless of background, to gain admission to a course suited to their ability and aspirations.” What is Fair Admissions?

QAA Quality Code Chapter B2 Expectation: “Recruitment, selection and admission policies and procedures adhere to the principles of fair admission. They are transparent, reliable, valid, inclusive and underpinned by appropriate organisational structures and processes. They support higher education providers in the selection of students who are able to complete their programme.” QAA Quality Code Part C Expectation: “Higher education providers produce information for their intended audiences about the learning opportunities they offer that is fit for purpose, accessible and trustworthy.”

The CMA advice for HEPs (March 2015) 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)  Consumer Rights Act, 1 October 2015 This is existing law The CMA view © CMA

Consumer protection law : Why now?  Consumer Protection Law is more important now because o A greater proportion of HE providers’ funding is coming directly from students, particularly in England o students are in a weak consumer position – for most students deciding what and where to study will be a ‘one-off’ decision.  HE providers are ‘traders’ and applicants/students are ‘consumers’ for the purposes of the legislation.  Consumer legal framework applies to universities, independent providers, specialist institutions and FE colleges.  It’s about good practice, hence SPA’s interest in raising awareness

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 information, advice and education established means/compliance partners dialogue warnings undertakings penalties civil and/or criminal action

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 in Consumer Contracts 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.

Consumer Protection compliance – quick check Are you confident you:  give prospective students the clear, accurate and timely information that they need so they can make an informed decision about what and where to study?  ensure that your terms and conditions are fair, for example, so you cannot make surprising changes to the course or costs?  ensure that your complaint handling processes are accessible, clear and fair?

Information - student research and application Pre-contract material information prospective students must have to make an informed decision, before they apply, includes:  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 (e.g. course at college x is validated by university y; plagiarism rules)  any information that is likely to affect a prospective student’s decision (e.g. minimum cohort numbers; courses subject to validation/ accreditation; changes to the material information; use of disclaimers…)

Information - student research and application Information must be o accurate, complete, clear, unambiguous, up front, timely and accessible, e.g. website, prospectus, open days o 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 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

CMA is also highlighting issues to students

Website Information Provision - ‘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 timing - but the Consumers’ Association has the right to audit in this way.  However some emerging best practice and encouraging signs that HEPs are complying or working towards complying

Application and Offer When an offer is accepted, the HE provider and prospective student will enter into a contract for admission to a course  Admissions via UCAS count as ‘distance selling’ (i.e. online)  Confirmation of a distance contract and pre contract information must be on a ‘durable medium’, within a reasonable time after the contract is entered into (unless already provided on a durable medium)

Application and Offer Provide the pre-contract information in a ‘durable medium’  list core modules of the programme  the duration of the programme/course  state fees & other costs and/or how these will be calculated and how increases will be calculated  specify number and type of contact hours  draw attention to your full terms and conditions, make these accessible and flag particularly important terms,  make clear what could change in the future - if you know some things might change, make it clear in the pre-contract information by setting out what could change, when and how

Offer After an applicant accepts the contract i.e. an offer of a place HEPs must: o obtain applicants’ agreement to change anything stated at the information/ student research and application stage; o give applicants notice of their 14-day right to cancel. o all this to be provided in a ‘durable medium’*  Care needs to be taken when managing communications with applicants, by agents and others.  What if a course is discontinued/ withdrawn before registration?  What about offers in Clearing? * See SPA website: Durable mediumDurable 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/College; no academic sanctions for accommodation debts; important or surprising terms highlighted; written in plain and intelligible language ; easily located and accessed by students and applicants.

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 and background information  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: QAA UK Quality Code for Higher Education:  Chapter B2: Recruitment, selection and admission to higher education, October 2013 Chapter B2: Recruitment, selection and admission to higher education, October 2013  Part C: Information about Higher Education Provision, March 2012 Part C: Information about Higher Education Provision  QAA Cause for concern scheme QAA Cause for concern scheme

Consumer Protection – Risk Analysis example 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 this could be: 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.

Possible Strategic Controls – holistic approach 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 internal deadlines for change  Being aware of what might change and why (is it reasonable) and communicating it well internally and externally Marketing information  Raise 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 - how to engage at every level - understanding and following the CMA advice and your internal procedures and practices.  HEPs are responsible for the actions of their staff, who are acting in the university’s or college’s name or on its behalf.

Consumer Protection Obligations A lot if this is not new but each HEP will need to act, you can’t ignore it: non-compliance could result in enforcement action by the CMA. 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 process is accessible, clear and fair? If you are confident, o What did 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?

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