Part 1: Proposals for new initial condition C5 - Treating students fairly

Retain existing initial condition C1

2. We have considered whether it is necessary to replace the existing initial condition, given that any proposed change to our requirements will require a provider seeking registration to familiarise itself with new requirements, including submitting documents it may not currently be required to submit. We take the initial view that it is important to introduce a new and stronger initial condition of registration for the reasons set out in the consultation.

Require compliance with the law

3. We have considered a requirement that more simply requires compliance with consumer protection law, rather than the proposed requirement to treat students fairly. We have considered whether this might represent a more straightforward regulatory requirement, as a provider seeking registration should already be complying with the law.
4. Our initial view is that a condition that focuses strictly on consumer protection law may lose the spirit and simplicity of what is fair for students. The proposal we are putting forward aims to encourage this ‘bigger picture’ thinking in consideration of the feedback we have received from students about what they expect from providers and from their higher education experience.

Focus on provider’s approach to complying with consumer protection law

5. We have considered whether a new initial condition could focus on the law by testing a provider’s approach to compliance. Instead of describing how it has had due regard to relevant guidance (as currently), we could require a provider to describe the systems and processes it has in place to support compliance. Such an approach might be tested through a self-assessment or narrative, as is currently the case for initial condition C1.
6. Our initial view is that this would not provide the strengthened protections for students we are seeking. We do not envisage that a narrative about how a provider ensures compliance with the law is likely to be substantially different from its description about how it has had due regard to relevant guidance. In assessing provider self-assessments for initial condition C1, we have seen examples of a provider setting out appropriate processes while in practice its student contracts contain unfair terms or its published information is misleading. When a provider assesses its own practices, it may write what it thinks the regulator wants to hear, which may not genuinely reflect its policies and processes, or may expose that its processes are not working in practice.

Consider fair treatment as well as unfair treatment

7. We have considered whether to include positive behaviours in the condition to illustrate fair treatment. Our initial view is that, for the purposes of registration, fair treatment may most helpfully be described as the opposite of unfair treatment. For example, if it is unfair to provide documents to students that are not written in clear and understandable language, it would be fair to provide documents that are clear and easy to read. Our initial view is that adding positive criteria of fairness may not add considerable benefit for registration, but could make the assessment longer and more complex.

Prohibited behaviours

An assumption that the provider can overturn

8. The approach we are proposing automatically assumes a provider does not treat students fairly where its actions or omissions fall within one or more of the descriptions set out in the proposed OfS prohibited behaviours list. An alternative approach would be a provision that makes the same assumption, but with an explicit opportunity for the provider to submit evidence to overturn this assumption. This would be similar to other proposals within the draft condition (C5.5 and C5.7). Because the content of the OfS prohibited behaviours list would be known to a provider and, we suggest, it clearly sets out the behaviours we propose are unacceptable, we currently think it is reasonable a provider should be expected not to exhibit any of the listed behaviours at the time it submits its application. We also note that a provider would always have a right to submit representations in response to any provisional decision taken by the OfS to refuse registration.³⁶

A more limited OfS prohibited behaviours list

9. We have considered whether we might determine whether a provider treats students unfairly with reference to a more limited list of behaviours that only reflect behaviours that are ‘in all circumstances considered unfair’ in consumer protection legislation. This could be either:
   1. By transposing the provisions of the legislation directly.
   2. As proposed, informed by legislative provisions but translated for the higher education context.
10. Either way, this would be within the parameters of existing legal requirements that providers should already be aware of and complying with. However, our initial view is that not including the ‘grey list’ of ‘contract terms which may be regarded as unfair’ in the Consumer Rights Act 2015 would leave a gap in coverage of behaviours that may, in practice, be unfair.

An expanded OfS prohibited behaviours list

11. We would particularly welcome views on any provisions informed by legislation that we are not proposing to include in the OfS prohibited behaviours list but which respondents think should be included. These are:
    1. Consumer Rights Act 2015, schedule 2, ‘Consumer contract terms which may be regarded as unfair’, commonly known as the ‘grey list’):
       1. A term which has the object or effect of excluding or limiting the trader’s liability in the event of the death of or personal injury to the consumer resulting from an act or omission of the trader or someone acting for or on behalf of the trader.
       2. A term which has the object or effect of enabling the trader to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so.
    2. Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277), schedule 1, ‘Commercial practices which are in all circumstances considered unfair’:
       1. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
       2. Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
       3. Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.
       4. Claiming that the trader is about to cease trading or move premises when it is not.
       5. Claiming that products are able to facilitate winning in games of chance.
       6. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
       7. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
       8. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.
       9. Creating the false impression that after-sales service in relation to a product is available in [the UK (if the product is sold there) or in] another country European Economic Area state other than the one in which the product is sold.
       10. Creating the impression that the consumer cannot leave the premises until a contract is formed.
       11. Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.
       12. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.
       13. Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer.
       14. Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in jeopardy.
    3. Digital Markets, Competition and Consumers Act 2024 c.13, schedule 20, ‘Commercial Practices which are in all circumstances considered unfair. Provisions related to the following:
       1. Drip pricing.
       2. Subscriptions.

Model terms and conditions

12. As set out in our recently published strategy consultation, we are considering developing a model contract that sets out students’ rights and obligations, alongside the obligations of providers.³⁷ We may therefore explore development work in this area through further discussion and engagement with the sector, outside the current consultation process and alongside, rather than instead of, the introduction of a new initial condition of registration.

Non-compliance with consumer protection law or other evidence of other wrongdoing (C5.5)

Consider findings only in the context of higher education

13. We have considered whether findings should be restricted only to those that relate to the provision of higher education (and services ancillary to higher education), given that this would be more directly relevant to the services the provider would intend to deliver, if registered. Our initial view is that there are likely to be similar consumer issues and considerations in the provision of other educational services.

Consider findings in any context

14. We have considered whether findings should be broadened to findings in any context. For example, while we have specifically identified inappropriate use of the word ‘university’ as a concern, as this is an issue we have seen in the unregulated part of the sector, there may be other circumstances in which a provider has been directed to change a misleading company name. However, where a provider has previously provided services unrelated to education, we currently think this would be less relevant to our considerations.
15. The current proposal seeks to balance between drawing the parameters of legal findings broadly enough to capture what we think is likely to represent the most relevant evidence, while not requiring disclosures from providers that may be less relevant. We would particularly welcome views on whether respondents consider that our current proposal strikes the balance we are seeking.

Consider findings only within a given time period

16. We have considered whether findings should be limited to those within a given period of time preceding the provider’s application to register with the OfS. This could be within the proposed framework of a presumption that the provider is able to overturn or otherwise (and within the context of higher education, education in general, or otherwise). For example:
    1. There could be a presumption that findings from the preceding [X years / months] would be treated as initial evidence that the provider does not treat its students fairly, but with the opportunity for providers to submit information that may mitigate this initial view.
    2. There could be a presumption that findings from the preceding [X years / months] would be treated as evidence that the provider does not treat its students fairly, with no opportunity for the provider to submit mitigating evidence.
17. Our current proposal would allow us to consider the recency of any findings on a case-by-case basis (and this is a factor we are expressly proposing to take into account and that a provider may include in its evidence). We would welcome views about whether there is, in the view of respondents, a single appropriate ‘cut off’ point prior to the provider’s application register, before which the OfS should disregard findings, and whether particular findings may remain relevant for a longer period of time than others. This would determine whether or not a provider would be required to make a declaration about relevant findings. Should the OfS otherwise become aware of undeclared findings, it would also determine whether we should take such findings into account in our assessment of initial condition C5.

Consider each case on its merits

18. We have considered an approach whereby we would consider each case on its merits. This means we would not start with the assumption that a finding of non-compliance with consumer protection law (other wrongdoing) was evidence of unfair treatment. Rather, each instance would be considered on a case-by-case basis. As we would in any case always consider any additional evidence the provider submits, our initial view is that the effect of this alternative may not be considerably different from our current proposal. The key difference would be our starting assumption and whether this would be negative (current proposal) or neutral (alternative proposal). We think it is appropriate, in the first instance, to place more weight on adverse findings than other evidence, because of to the serious nature of such findings.
19. If taking a more neutral approach to adverse findings, we propose to consider the same non-exhaustive factors as we have set out under Proposal 4 (Non-compliance with consumer protection law or other evidence of other wrongdoing (C5.5).

Consideration of actions by an enforcement body (C5.6)

Consider behaviour only in the context of higher education

20. We have thought about limiting our consideration of undertakings or applications for enforcement orders to behaviours that relate to the provision of higher education (and ancillary services), given that this would be more directly relevant to the services the provider would deliver, if registered. Our initial view is that there are likely to be similar consumer issues in the provision of other educational services when compared with the provision of higher education, particularly in relation to further education.

Consider behaviour in any context

21. We have thought about broadening our consideration of undertakings or applications for enforcement orders to any context. The current proposal seeks to balance between drawing the parameters broadly enough to capture what we currently think is likely to represent the most relevant evidence, while not requiring disclosures from providers that may, in some circumstances, go beyond this. We would particularly welcome views on whether our current proposal strikes the balance we are seeking.

Disregard undertakings and applications for enforcement orders

22. An alternative option would be to disregard evidence of undertakings and applications for enforcement orders, as these do not constitute adverse findings by a court or other competent authority. Our aim is to create a condition that allows us to consider all reasonably available evidence that we consider relevant while balancing the weight placed on it. Where there are adverse court findings, we propose an initial presumption that the provider does not treat students fairly (which the provider may be able to overturn). In other words, we propose to place weight (though not unlimited weight) on court findings. In contrast, where there is an undertaking or an application for an enforcement order, we propose to consider this in our assessment, but without a presumption that this means a provider does not treat students fairly.

Removal of concerning terms or information from documents (C5.7)

A binary approach

23. We have considered whether the removal of concerning terms from a document should:
    • always be sufficient to conclude that the provider treats students fairly
    • always be insufficient, leading to a conclusion that the provider does not treat students fairly.
24. Our initial view is that the first option may be too permissive and the second option may be too restrictive.
25. Our initial view is that the first option would not necessarily increase our confidence about the provider’s approach to the fair treatment of students, as we would not receive assurance that the provider had understood the concerns raised. Our initial view is that understanding a concern is the first step to improving practices and ensuring fair approaches are applied in future. In contrast, we think the second option would be unreasonably restrictive on a provider’s ability to provide evidence of meaningful changes.

Consider each case on its merits

26. We have considered an approach whereby we would consider each case on its merits. This means we would not start with the assumption that the mere removal of a concerning term or information was insufficient; rather, each instance would be considered on a case-by-case basis. As we would, in any case, always consider any evidence a provider submits, our initial view is that the effect of this alternative proposal may not be considerably different from our current proposal. The key difference would be our starting assumption and whether this would be negative (current proposal) or more neutral (alternative proposal).
27. If taking a more neutral approach in considering whether the mere removal of a term or information was sufficient, we would propose to consider the same non-exhaustive factors as we have set out under Proposal 4 (Removal of concerning terms or information from documents (C5.7).

36 See paragraph 110 of the OfS’s Regulatory framework.

37 See OfS, ‘Consultation on OfS strategy for 2025 to 2030’.

Students

Exclude prospective and former students

28. We have considered whether ‘students’ should be limited to current students, in other words those individuals who are enrolled to study higher education at the provider, for the length of time that they are formally enrolled. Our initial view is that this would leave a significant gap in coverage in the condition, and would not allow us to consider all relevant matters related to the student journey. We take the initial view that students should be protected by our regulation when they are making their decision about what and where to study, through their experiences while studying and, in some scenarios, beyond (for example where they have completed their studies but have a complaint to raise or refunds to pursue where services have not been delivered as promised or as expected).

Use alternative definitions for prospective and former students

29. We have considered whether the definition of prospective students could be more narrowly defined to include only circumstances in which an individual has already accepted an offer. We are of the initial view that the provider’s actions or omissions may affect an individual before they accept an offer, as they may affect decision-making which takes place between offer and acceptance.
30. The definition could alternatively be drawn more widely to capture pre-offer circumstances, for example where an individual has submitted an application (or is considering doing so) but has not yet received an offer. It is possible that, in applying for a course at one provider, an individual is therefore choosing not to apply for a course at another provider and, if an individual is making this choice on the basis of inaccurate or misleading information, this may be particularly important. This may be particularly relevant where the individual is applying via the UCAS, which limits the number of providers to which they can apply. In the case of an individual who is only considering applying but has not yet done so, we think this at least would be unmanageably broad, as it would capture anyone and everyone who may be interested in applying to study higher education. We suggest that the condition should limit the application of the condition to circumstances that are reasonably foreseeable.

Exclude students studying as part of their employment

31. Where a student is studying as part of their job and the contracting party is their employer, they may not fall within the relevant definition of ‘consumer’ for the purpose of consumer law. We have considered whether such students should be excluded from the scope of the condition on this basis. While our proposals situate fair treatment broadly within a consumer framework and we have taken inspiration from consumer protection law, the aim of our regulation is to protect students, which means all individuals undertaking a course of study, including as part of their employment.

Higher education and ancillary services

Focus on the provision of teaching

32. We have considered whether the condition should focus solely on arrangements relating to the provision of teaching, given that it is the primary activity of higher education providers. Library services, disability support packages and scholarships are, we think, closely connected to the provision of teaching and the student’s ability to participate in, and achieve positive outcomes from, the teaching they receive. We recognise that other services are less closely connected to the provision of teaching. We think that other ancillary services – particularly those we propose to specify in the condition (accommodation and sports facilities) – may be important to students’ choices about what and where to study and their experiences while studying, even while they may not be directly connected to the provision of teaching and the academic experience.

Provide an exhaustive list of ancillary services

33. We have considered whether the condition should provide an exhaustive list of ancillary services. However, we recognise that the services and facilities each provider offers will differ, and we may not be able to capture all services offered by all providers in a predetermined list. Our initial view is that the condition should allow the OfS the flexibility to consider all relevant information, including that which is publicly available or which we may be provided with, for example by a student or other third party. A predetermined and exhaustive list may not allow us to do this.

Include third party ancillary services

34. We have considered whether the scope of the proposed condition should include services offered by a third party on the provider’s campus, site or premises where that third party holds the contract with the student. While we have not proposed to include third party services within the scope of the condition, we would like to emphasise that, where a provider has or could have influence over arrangements provided by third parties, we would, of course, expect it to act in in the interests of students.

Offering higher education and providing information for students

Use a narrower definition of information for students

35. We have considered whether ‘information for students’ should be defined more narrowly through an exhaustive list of things we would consider in our assessment. This approach would have the benefit of certainty for providers. However, our initial view is that there is likely to be a wide range of approaches used by providers and we are unlikely to be able to reflect this diversity through a predetermined list. It may also risk appearing to suggest that all providers are likely to take (or should take) the same approaches and have (or should have) similar suites of marketing documents.
36. As is consistent with our views stated elsewhere, we also think the condition should allow the OfS to consider all information and materials that are relevant to each provider, including an ability to act responsively (and undertake further verification and investigation where necessary) on a case-by-case basis to any information that is provided to us by a third party.

Require a narrative submission

37. We have considered whether to require a narrative document describing a provider’s theoretical approach to treating students fairly, as well as (rather than instead of) other documents. Our initial view is that this would create additional burden for providers and a less efficient assessment process overall without providing additional benefit.

Only consider provider’s current position

38. Our current proposal looks at a provider’s intended course delivery model, if registered (for example, whether it only intends to deliver via a subcontractual partnership). We have considered, instead, whether we should only consider the provider’s current higher education provision in determining whether it has submitted all the required documentation. Our initial view is that this would not allow us to make a meaningful assessment of a provider that is not yet in operation or otherwise delivering higher education, whereas, we suggest, our current proposal would allow us to assess all providers.

Set out different document submission requirements for different types of providers

39. We have considered whether to set out different document submission requirements to distinguish between providers that intend to charge tuition fees to students if successfully registered and those that do not, or between those that share contractual responsibility for the provision of higher education to students and those that have sole responsibility. We are of the initial view that it would be challenging to set out all the various permutations of contractual and fee charging arrangements that might be in place among providers in the sector, and not all providers may fit into predetermined ‘boxes’ in this respect.

Require all providers to submit their own documents regardless of future intentions

40. We have considered taking a less flexible approach whereby all providers would be required to submit their own documents in all cases, given that all providers have access to all the same benefits of registration, if successfully registered. Our initial view is that this may create additional unnecessary burden for providers that have no intention of, for example, charging students directly for tuition fees if registered. In these circumstances, some providers might need to draft documents solely for the purpose of OfS registration.
41. Our aim in drafting the proposed submission requirements is to create a list that is sufficiently broad that all providers wishing to register with us can meet the requirements by submitting a variety of documents, some of which may be the documents of another provider or organisation that shares responsibility for the provision of higher education to students.

Continue to impose initial condition C3 alongside proposed initial condition C5

42. We have considered continuing to apply initial condition C3 alongside proposed new initial condition C5. This would have the benefit of simplicity for providers, as there would be no change to our current requirements in relation to initial condition C3. However, our initial view is that this would create additional burden alongside the requirements of initial condition C5 which, we suggest, may not provide additional practical benefit in relation to student protection.

Continue to impose initial condition C3 alongside proposed initial condition C5 but with amended submission requirements

43. Given that we have identified a substantial overlap between the documents we are proposing to require for initial condition C5 and the content of a student protection plan required under current initial condition C3, we have also considered whether we could:
    • continue to apply initial condition C3 alongside proposed new initial condition C5
    • meanwhile, assess a narrower set of documents under initial condition C5 to reduce duplication.
44. Our initial view is that all the documents we are proposing a provider would be required to submit would be directly relevant and important to our assessment of the fair treatment of students, regardless of whether we continued to apply initial condition C3.
45. We recognise that the requirement for a provider to submit policies related to the conditions under which it may make changes is the requirement most closely aligned with current requirements for student protection plans under initial condition C3. We suggest that these policies are integral to an assessment of fair treatment for students within the scope of proposed initial condition C5. Furthermore, the student protection plan requirements under initial condition C3 only require a provider to set out mitigations for those risks it considers reasonably likely to crystallise. As explained under Proposal 7, we are proposing that a provider would be required to submit relevant policies, regardless of their self-assessment of risks. We suggest that the current proposal (including submission requirements) more robustly meets our aim of strengthening protections for students, while also representing a more streamlined approach for providers.