Applicants, higher education providers and consumer law April 2015 Janet Graham, Director of SPA David Palfreyman, Bursar and Fellow, New College, Oxford

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  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.

Consumer Protection Law and HE 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); and  Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). Also now Consumer Rights Act 2015 (from Oct 15) This is existing law and is UK wide

Consumer Protection Law and HE – CMA view  Most students decisions on what and where to study will be a ‘one-off’ involving the investment of a significant amount of time and money. Therefore, that decision needs to be properly informed and right for them.  Once students have enrolled, if they are dissatisfied with their experience, it is practically very difficult for them to switch HEPs or courses.  So HEPs, in their dealings with prospective students and students must provide clear, comprehensive and timely information, and ensure their terms and conditions and complaints processes are fair.

Consumer Protection Law and HE  HEPs should consider the CMA advice and ensure they comply. If necessary you should make changes to your practices, policies, rules and regulations.  Non-compliance could result in enforcement action by local authority Trading Standards Services (or in NI, the Department of Enterprise, Trade and Investment) or by CMA.  CMA considered the law as it applies to HEPs of UG courses, may also be relevant to other courses.  The CMA will monitor the sector and commence a review in October 2015 to assess compliance with consumer law.  The advice is the CMA view, HE providers need to take their own legal advice. SPA cannot provide legal advice.

CMA Advice for HE: what does it cover?  Consumer protection law will generally apply to the relationship between HEPs and undergraduate students.  HEPs are acting for purposes relating to their trade, business or profession when providing educational services and will be a ‘trader’ or ‘seller or supplier’ for the purposes of consumer protection legislation.  Conversely, undergraduate students will generally be acting for purposes outside their trade, business or profession, and therefore will be ‘consumers’ for the purposes of the legislation.

CMA Advice for HE: what does it cover? It is what CMA consider HE providers need to do to comply with consumer protection law in relation to the following three issues: (a) Information provision – the need to provide clear, accurate, comprehensive and timely information to students. (b) Terms and conditions – the need for terms and conditions that apply to students to be fair and balanced. HE providers should not rely on terms that could disadvantage students. (c) Complaint handling processes and practices – the need to ensure that complaint handling processes and practices are accessible, clear and fair to students.

CMA Advice for HE: Key requirements for HEPs 1.Student research and application stage - to comply you: a)Must provide prospective students with material information – including about the courses you offer, the structure of courses, and the fees/costs. This should be given before they make a decision about which courses and HE providers to apply to. This includes information given in writing, visually and verbally. You should make sure this information is accurate and you should not omit important information that could affect students’ decisions.

CMA Advice for HE: Key requirements for HEPs 1.Student research and application stage, con’t - to comply: b)The information should be accurate, clear, unambiguous and timely, and should be given up front. c)You should ensure that information is easily accessible – for example, via your website, prospectuses, course and departmental handbooks and at open days. d)You should ensure that you draw prospective students’ attention to important and surprising rules and regulations, and make them accessible. [So at this stage they need to be on your website, outside any applicant portal that requires the applicant to log in]

CMA Advice for HE: Key requirements for HEPs 2.Offer stage - to ensure compliance : i.you continue to provide important information to prospective students to inform their decisions about which offer(s) to accept; ii.you draw prospective students’ attention to your full terms and conditions, that these are easily accessible, and that you highlight particularly surprising or important terms; iii.you provide prospective students with the necessary pre- contract information at the latest before they accept an offer of a place on a course; NOTE: When an offer is accepted, the HE provider and prospective student enter into a contract.

CMA Advice for HE: Key requirements for HEPs 2.Offer stage con’t - to ensure compliance: iv.where any pre-contract information that you have already provided changes, you have obtained the student’s express agreement to the change before or at the time of making the offer; v.where you anticipate that some things might change after the offer is accepted, you make clear in the pre-contract information what could change, when, and how, so that the student can agree to this; and vi.any terms in the contract that purport to allow changes to the pre-contract information are fair under unfair terms legislation.

CMA Advice for HE: Key requirements for HEPs 2.Offer stage con’t - to ensure compliance: At the stage of offer and acceptance of a place on a course, a contract is concluded between HE provider and student. For distance contracts (e.g. offers and acceptances made via UCAS), you should: i.provide confirmation of the contract on a durable medium, e.g. as attachments to an . The confirmation must include all pre-contract information, unless it has already been provided on a durable medium; and ii.give prospective students notice of their 14-day right to cancel, where the application and offer are carried out at a distance.

CMA Advice for HE: Key requirements for HEPs 2.At the Offer stage ensure that terms and conditions between HE providers and students are fair a)your terms (likely to include your rules and regulations and documentation that contains rules that apply to students) can be easily located and accessed (e.g. on your website) and are available to students; b)students are aware of your terms and that you give them the opportunity to review them before they accept an offer; c)you highlight any important or surprising terms and draw them to students’ attention before they accept an offer, so that their significance is not missed;

CMA Advice for HE: Key requirements for HEPs 2.At the Offer stage ensure that terms and conditions between HE providers and students are fair d)your terms are written in plain and intelligible language so that students understand them and understand how they affect their rights and obligations and how the terms could impact them; and e)your terms are not drafted in such a way that their effect could be unfair. They should strike a fair balance between your rights and obligations and those of students.

CMA Advice for HE: Key requirements for HE providers

CMA Advice for HE: Key requirements for HEPs 3.Ensuring that HE providers’ complaint handling processes and practices are accessible, clear and fair to students a)your complaints procedure is easily located and accessible to students, for example on your website and intranet; b)you provide prospective students with information about your complaints process before they accept an offer of a course. This includes procedures relating to applicants and current students if they are separate; c)you provide students with clear and accurate information about your complaint handling procedures in writing and (where applicable) verbally, e.g.:

CMA Advice for HE: Key requirements for HEPs 3.Ensuring that HE providers’ complaint handling processes and practices are accessible, clear and fair to students - to comply you should ensure: i.where you offer a course in partnership with, or sponsored or awarded by, another HE provider it should be clear where responsibility for complaint handling lies; ii.you provide accurate details of any external complaint or redress scheme that students can access; and iii.where students raise concerns at an informal level, you should inform them that they can make a complaint under your formal complaints process if the matter is not satisfactorily resolved

CMA Advice for HE: Key requirements for HEPs 3.Ensuring that HE providers’ complaint handling processes and practices are accessible, clear and fair to students - to comply you should ensure: d) your complaints handling processes are fair, which is more likely to be achieved where you: (i) set out clear and reasonable timescales in which students can expect to hear back about their complaint at each stage of the process, as applicable; (ii) set out clear and reasonable timescales relating to how long students will be given to respond to any requests for further information that you may make;

CMA Advice for HE: Key requirements for HEPs 3.Ensuring that HE providers’ complaint handling processes and practices are accessible, clear and fair to students - to comply you should ensure: ( iii) do not create unreasonable barriers for students pursuing a complaint; and (iv) provide the ability for students to escalate the matter if they are unhappy and, where the regulatory framework allows it, to appeal if it is not satisfactorily resolved; e)you follow any guidelines published by any third party redress or complaint schemes of which you are a member; and f)staff are trained in and follow your complaint handling procedures in practice.

CMA Advice for HE: Key requirements for HE providers

Consumer Protection Law and Admissions See:  QAA UK Quality Code for Higher Education - Chapter B2: Recruitment, selection and admission to higher education, October 2013 and QAA UK Quality Code for Higher Education - Chapter B2: Recruitment, selection and admission to higher education, October 2013  SPA’s Good practice statement on Applicant complaints and appeals, January 2012 SPA will aim to update this statement in light of the CMA HEP advice SPA’s Good practice statement on Applicant complaints and appeals, January 2012

CMA Advice: What do HEPs need to do? Read and consider the advice published 12 March 2015 and ensure you are complying with the law, preferably by October You should: a) consider how this advice applies to you – and review your relevant practices, policies, rules and regulations for dealing with students; b) if necessary, make changes to your practices, policies, rules and regulations to ensure compliance as soon as possible; c) consider putting mechanisms in place to ensure that all of your different departments and faculties are complying with the law, for example to ensure they are making available all necessary information; and

CMA Advice: What do HEPs need to do? Read and consider the advice published 12 March 2015 and ensure you are complying with the law, preferably by October You should: d) ensure that your relevant staff are aware of, understand and follow both this advice and your own internal procedures and practices, as you are responsible for the actions of your staff, who are acting in your name or on your behalf. ACTION: If you believe there is insufficient awareness of the issues raised today at your HEP, go back and raise the matter with colleagues who can take this forward.

Clearing and Adjustment – CMA view  Where a prospective student fails to meet any specified entry requirements, they may enter ‘Clearing’. The applicant will potentially go through another research stage and possibly another offer stage if there are HEP(s) willing to offer a place.  You are subject to the same information requirements and obligations under the CCRs and CPRs as outlined earlier. Given the time pressures, you need to take particular care to present the information clearly and in a timely way.  Similarly, you will have the same obligations if a student wishes to revisit their choices as a result of doing better than they anticipated, and goes through ‘adjustment’, to see what other places may now be available to them.

Consumer protection and HE compliance – what next?  Universities UK talking with CMA, the Association of Heads of University Administration (AHUA) and ARC as well as Association of University Legal Practitioners (AULP), SPA and UCAS.  UUK series of workshops on the implications of the CMA advice and HEP compliance to be arranged after Easter.  SPA will update its guidance on complaints and appeals in admissions. SPA also talking with UUK, GuildHE and AoC  Role of QAA and HE regulators in UK – discussions with CMA, e.g. HEFCE has Student protection as one of its four key priorities. Students includes prospective students/ applicants.  Consumer Rights Act – approved 27 March2015.

? Send for the Director of Compliance! David Palfreyman, New College, University of Oxford AUA - Perspectives: Policy and Practice in Higher Education Published online: 24 Feb

P.S. Consumer Rights Act 2015 – key issues (not exhaustive!) p Chapter 4; Services 49 Service to be performed with reasonable care and skill (1) Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill. 50 Information about the trader or service to be binding (1) Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service 52 Service to be performed within a reasonable time

P.S. Consumer Rights Act 2015 – key issues (not exhaustive!) p Chapter 4; Services 49 (4) If the trader is in breach of a term that section 50 requires to be treated as included in the contract but that does not relate to the service, the consumer has the right to a price reduction (see section 56 for provisions about that right and when it is available). (5) If the trader is in breach of what the contract requires under section 52 (performance within a reasonable time), the consumer has the right to a price reduction (see section 56 for provisions about that right and when it is available). 55 Right to repeat performance (1) The right to require repeat performance is a right to require the trader to perform the service again, to the extent necessary to complete its performance in conformity with the contract.

P.S. Consumer Rights Act 2015 – key issues (not exhaustive!) p Chapter 4; Services 56 Right to price reduction (1) The right to a price reduction is the right to require the trader to reduce the price to the consumer by an appropriate amount (including the right to receive a refund for anything already paid above the reduced amount). (2) The amount of the reduction may, where appropriate, be the full amount of the price.

P.S. Consumer Rights Act 2015 – key issues (not exhaustive!) P64 Schedule 2 — Consumer contract terms which may be regarded as unfair Part 1 — List of terms SCHEDULE 2 Section 63 CONSUMER CONTRACT TERMS WHICH MAY BE REGARDED AS UNFAIR 2 A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader. See all the other terms but particularly 10 – 13 NB The Consumers Association (Which) is a regulator

Thank you Janet Graham, Director of SPA To discuss further contact: or