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

Condition C5: Treating students fairly

Scope

C5.1 The scope of this condition includes:

1. a provider’s relationships with students;
2. the provision of higher education;
3. the provision of ancillary services;
4. higher education provided (or to be provided) in any manner or form by, or on behalf of, a provider (regardless of which provider holds or will hold the contractual relationship with the student);
5. any arrangements the provider has made or plans to make to attract students, encourage applications to become students, or to otherwise communicate with students (including, but not limited to, advertising and marketing material, and actual or proposed information that may be published on its website) (“information for students”);

C5.2 For the purposes of this condition:

1. the provider’s relationship with a student is treated as being within the scope of this condition:
   1. regardless of the arrangements for the payment of tuition or other related fees;
   2. whether or not the student is obtaining higher education services for the purposes of business, trade or profession;
2. the provision of higher education and ancillary services are treated as services;
3. references to the provision of higher education includes offering the provision of higher education;
4. references to the provision of ancillary services includes offering the provision of ancillary services;
5. references to key documents and information for students includes any draft or proposed versions of the relevant information.

Requirement

C5.3 The provider must, if registered, treat each student fairly in relation to any activities that are connected with the provision of higher education and/or ancillary services.

C5.4 The provider will be deemed not to satisfy paragraph C5.3 if, in the reasonable opinion of the OfS, its actions or omissions (including proposed or likely actions or omissions) fall within one or more of the following categories:

1. they fall within one or more of the descriptions provided for in the OfS prohibited behaviours list; or
2. they give rise to a likelihood of detriment or actual detriment to the student (unless the OfS considers that the detriment would be reasonable in all the relevant circumstances).

C5.5 The provider will be deemed not to satisfy paragraph C5.3 if it has been subject to adverse findings under one or more of the following forms of wrongdoing in a context that directly or indirectly relates to the provision of education and ancillary services, unless it can demonstrate that it has addressed any issues related to any such adverse findings to the satisfaction of the OfS:

1. non-compliance with consumer protection law, as found by a court of England and Wales or competent authority;
2. the offence provided for in section 214(1) of the Education Reform Act 1988 (unrecognised degrees);
3. the offence provided for in section 76(6) of the Companies Act 2006 (failure to comply with a Secretary of State direction to change a company name); or
4. the offence provided for in section 1198 of the Companies Act 2006 (name giving misleading indication of activities).

C5.6 The OfS will take the following non-exhaustive matters into account when determining whether a provider satisfies paragraph C5.3 (where any of these matters apply):

1. an undertaking by the provider has been accepted by an enforcement body, and the undertaking is in connection with behaviour that relates to the provision of education or ancillary services;
2. there is an outstanding application for an enforcement order against the provider made by an enforcement body, and the application relates to the provision of education or ancillary services.

C5.7 In the course of the provider’s application for registration with the OfS (and the OfS’s consideration of that application), the mere removal of a term, provision or any form of information from key documents or from any information for students will be insufficient to demonstrate that the provider, if registered, will treat its students fairly in accordance with paragraph C5.3, unless it can demonstrate that it has addressed any underlying issues related to that term, provision or form of information to the satisfaction of the OfS.

Definitions

C5.8 For the purposes of this condition C5:

1. “ancillary services” means services for which a student may enter into a contract with the provider as part of the higher education experience, including but not limited to contracts governing the provision of library services, disability support packages, scholarships, accommodation and sports facilities.
2. “consumer protection law” is to be interpreted broadly and includes, but is not limited to, the following legislation (as may be amended from time to time):
   1. The Consumer Rights Act 2015;
   2. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013;
   3. The Provision of Services Regulations 2009;
   4. The Consumer Protection from Unfair Trading Regulations 2008;
   5. Digital Markets, Competition and Consumers Act 2024;
   6. The Protection from Harassment Act 1997.
3. “competent authority” means the Competition and Markets Authority, or any other body with jurisdiction to make decisions under section 182 of the Digital Markets, Competition and Consumers Act 2024.
4. “enforcement body” means an Enforcement Body as defined in schedule 6 of the Consumer Rights Act 2015, or defined in Part 8 of the Enterprise Act 2002, or an Enforcer as defined in section 164 of the Digital Markets, Competition and Consumers Act 2024.
5. “former student” means a person who was a student of the provider in the past, irrespective of the reason for that person no longer being a student of that provider, where there still exists a current relationship based on the former student having been a student of the provider (for example, where a former student has an ongoing complaint against the provider in relation to issues that occurred while they were a student).
6. “information for students” has the meaning given in C5.1(e).
7. “key documents” means the provider’s terms and conditions, other documents with contractual effect, notices, policies relating to the circumstances in which it may make changes to its courses, refund and compensation policies and complaints processes.
8. “OfS prohibited behaviours list” means a separate document published by the OfS from time to time that sets out the descriptions pursuant to the test in C5.4a. For the avoidance of doubt, the OfS prohibited behaviours list forms part of this initial condition of registration C5.
9. “prospective student” means, in respect of a student, that a person has already received any form of offer for or on behalf of the provider to commence a course of study, including research courses, at the provider, irrespective of whether that offer is legally binding or is subject to conditions or formalities.
10. “student” includes current students of the provider, prospective students, and former students.

Condition C5.1

1. ‘Ancillary services’ includes (but is not limited to) library services, disability support packages, scholarships, accommodation and sports facilities, wherever there is a contract between a higher education provider and a student. Ancillary services offered by third parties do not fall within the scope of the condition.
2. Higher education provided ‘in any manner or form’ includes any higher education course. This includes courses at any level and with any volume of learning, and it applies whether or not a course is recognised for OfS funding purposes, or any other purpose. This means, for example, that postgraduate research courses, the study of modules or courses leading to microcredentials, and apprenticeships, all fall within the scope of this condition. It also includes courses provided face-to-face, by distance learning, or a combination of delivery approaches.
3. Higher education provided ‘by, or on behalf of, a provider’ includes courses where students are, or will be, in any of the following categories:
   • taught by the provider seeking registration
   • registered with the provider seeking registration
   • studying for an award of the provider seeking registration (including where these services are provided on that provider’s behalf).
4. The condition applies to all higher education provided through all forms of partnership arrangements. This includes instances where there is shared contractual responsibility for a student; this may be the case in a subcontractual partnership. In practice, this may result in more than one provider being responsible for compliance with this condition in relation to the same student. The OfS will base its assessment on the provider’s stated intentions for if it is registered. This includes whether it intends only to teach students registered by another provider (for example, through a subcontractual arrangement) or to teach students who it will also register (for example, through a validation arrangement).
5. ‘Information for students’ includes anything students may rely on in their decision-making: for example, emails or other forms of communication; presentations delivered at open days; any written material used to inform communications with students (such as scripts for recruitment phone calls).
6. Arrangements the provider ‘plans to make’ and ‘proposed information’ include the situation where a provider applying to register is not yet operating or not yet delivering higher education.

Condition C5.2

7. The condition applies to relationships between a provider and its students, whether the latter pay for higher education or ancillary services directly or indirectly (for example, through Student Loans Company funding). This includes circumstances where a third party pays (for example, an employer or other sponsor).
8. This condition applies to a provider’s relationships with students studying for the purpose of their business, trade or profession. This includes, for example, apprentices or other students who are studying as part of employer-sponsored programmes.
9. Higher education and ancillary services are considered ‘services’ regardless of whether fees are charged and whether it is provided on a ‘for profit’ or a ‘not for profit’ basis.
10. The condition applies wherever higher education and ancillary services are offered. This therefore relates to the provider’s arrangements to attract, encourage and communicate with students, and includes instances where a provider is not yet delivering such services.

Condition C5.3

11. The overarching obligation of the condition is that a provider must treat its students fairly. Unfair treatment is defined in the condition, and is separate from the protections offered by consumer protection law. The OfS expects any higher education provider seeking registration to ensure it understands and complies with its legal obligations.
12. The OfS will consider any of the provider’s activities that are connected with providing higher education or ancillary services.

Condition C5.4

13. The OfS will deem that a provider does not treat students fairly where its actions (or its failure to act):
    • fall within the descriptions in a specified list of behaviours (the OfS prohibited behaviours list)
    • give rise to actual or likely detriment to students.
14. The OfS will assess the provider’s actual ‘actions or omissions’ and those that are ‘proposed or likely’ as follows:
    1. ‘Proposed’ actions may include, for example, unfair terms and conditions in a contract that is not currently in use, for instance if the provider is not yet delivering higher education.
    2. ‘Likely’ relates to circumstances where the provider has not expressly proposed acting or not acting in a specific way but there is evidence to indicate it may do so nevertheless. For example, a provider’s contract with its students may be ambiguous, unclear or silent on a particular matter, but its website may contain evidence of unfair treatment of students in relation to that matter.
15. The OfS prohibited behaviours list is published separately. It forms part of initial condition C5. Some of its provisions are informed by consumer protection law but, in some cases, they may have a different effect in this context. For example, section a. of the OfS prohibited behaviours list specifies some contract terms similar to those that may be regarded as unfair according to the Consumer Rights Act 2015 (the ‘grey list’), but which will be treated as always unfair for the purpose of this condition. A provider may satisfy its legal obligations without satisfying the requirements of this condition, and vice versa.
16. ‘Detriment’ means any harm, damage or loss experienced (or more likely than not to be experienced) by a student. The OfS will consider whether the likely or actual detriment identified, and the action or lack of action leading to it, would be reasonable in all the relevant circumstances.
17. Depending on whether the OfS is considering likely or actual detriment, it expects to take the following non-exhaustive factors into account:
    • whether it is reasonable to argue that the course of action proposed or taken is, or was, necessary in the circumstances
    • whether these circumstances are, or were, in the control of the provider
    • whether the provider is doing, or has done, everything possible to limit the extent of the detriment.

Necessary in the circumstances

18. In an emergency, a detriment to students may be necessary to avoid a more serious detriment to students, staff or the wider community: for example, a rapid move from face-to-face to online learning may be necessary to avoid risks to public health or health and safety in a pandemic or other localised outbreak of contagious illness or infection. The provider’s actions may give rise to detriment but still be in the interests of all, or the vast majority of, students in the short term.

In the provider’s control

19. An emergency may be out of the provider’s control, or it may be due in part to the provider’s actions or inaction. For example, a failure to maintain buildings or equipment, or carry out and act on necessary safety checks, may mean a provider has to take action to safeguard students, but these circumstances may well have been within the provider’s control. A provider seeking registration should consider how broadly its terms and conditions and other documents are drafted, and the circumstances over which it could reasonably be expected to have control.

Steps taken to limit detriment

20. Circumstances relating to staffing and resource allocation (including, for example, industrial action) could be within a provider’s control, and it may be able to take measures to limit detriment to students. Such steps, however, may not be sufficient to fully address detriment to students and ensure that they are treated fairly.

Condition C5.5

21. The OfS’s starting presumption is that a provider does not treat students fairly if it has been subject to findings of non-compliance with consumer protection law, or other wrongdoing as specified in C5.5. The OfS will consider findings made by UK courts or other competent authorities as defined in the condition.
22. The Protection from Harassment Act 1997 may be relevant to cases where a provider aggressively pursues academic sanctions imposed for non-payment of non-tuition fee debts, as this may amount to harassment.
23. Section 214(1) of the Education Reform Act 1988 relates to offering unrecognised degrees. The Companies Act 2006 contains provisions relating to company names that give a misleading indication of the nature of a company’s activities. This includes a provider claiming to be a ‘university’ without the relevant permission to do so.
24. The OfS will consider relevant any finding that directly or indirectly relates to the provision of any form of education, including further education, not just to higher education.
25. Where there are findings of wrongdoing, the OfS will consider evidence submitted by the provider to reach a judgement. The OfS will consider the following non-exhaustive factors:
    • the recency of the findings
    • whether the findings relate to matters that were repeated or sustained
    • whether the findings include a view about the deliberateness of the provider’s actions or inaction
    • how the provider has engaged with the issue since the finding was made
    • the steps it has taken to address the issue and ensure it does not happen again in future.
26. Where the provider has not engaged with the issue and has not described satisfactory steps to address it, the OfS is more likely to consider that the provider does not treat students fairly.

Condition C5.6

27. The existence of undertakings or applications for enforcement orders will not automatically lead to a conclusion that the provider does not treat students fairly, as there is no presumption of wrongdoing. The OfS will consider information submitted by the provider, alongside other reasonably available evidence (for example, the provider’s documents or information published on its website) to reach a judgement. The OfS will consider whether the information provides reassurance that any issues that led to the undertaking or the application for enforcement order are not – or are no longer – of concern.
28. The context that will be considered relevant to this provision extends beyond higher education and includes, for instance, the provision of further education.
29. For the avoidance of doubt, C5.6 relates specifically to applications for enforcement orders by enforcement bodies and not to enforcement orders issued by a court. Where this has happened, the court will also make a finding of non-compliance with consumer protection law. This will be considered under C5.5, with a starting presumption that the provider does not treat students fairly. The provider will have the opportunity to overturn this presumption, as set out in C5.5.

Condition C5.7

30. During the application process, if there are terms or information of concern to the OfS in any of the provider’s documents, simply removing these will not be sufficient, unless the provider can demonstrate that it has addressed any underlying issues associated with these terms. This would be relevant, for example, where a provider removes a term after the OfS has provisionally determined that it is unfair. The OfS will consider:
    • the consequences of the removal
    • whether the removal addresses the issues
    • whether other related issues remain
    • whether the removal itself leads to other concerns.
31. An example would be the case where a provider’s student contract includes a clause specifying that it will not consider making refunds under any circumstances, but it subsequently removes this term, and submits a refund and compensation policy that the OfS considers fair. In these circumstances, the removal of the original term is likely to be acceptable, as the provider has taken steps to remedy the issue beyond mere removal of the term.
32. The OfS will also consider the following non-exhaustive factors:
    • the extent to which the provider has demonstrated it understands why the term or information that it has removed was of concern
    • other actions beyond removal that the provider has taken, and the extent to which these address the concern
    • whether the provider has replaced the terms with more suitable terms.
33. The OfS will consider the nature and range of the provider’s actions relevant to the nature and extent of the original concerns. The OfS will take more assurance where the provider demonstrates it has understood the concern and taken actions to fully address the issue. For example, where a provider has removed an unfair term from a student contract but continues to make similar statements elsewhere on its website, the OfS is unlikely to conclude that the concerns have been addressed. In all circumstances, the test the OfS will apply is whether the provider will, if registered, treat students fairly.

Assessing compliance with the condition

34. The OfS will assess the documents the provider submits with its application. The OfS will also consider any information published by the provider on its website, such as information about:
    • courses, including fees
    • ancillary services such as library services, accommodation and sports facilities
    • affiliation with other bodies, which may include other awarding bodies, professional, statutory or regulatory bodies and other regulatory agencies
    • materials to attract students, encourage applications or otherwise communicate with students (including, but not limited to, advertising and marketing material).
35. The OfS considers that providers in partnerships share a responsibility to treat students fairly, including ensuring through their own due diligence processes that the other partner also treats them fairly. The OfS expects any provider applying for registration to ensure that any information it publishes or otherwise shares with students is clear, accurate and consistent with that shared or published by its partner. The OfS will pay particular attention to information outlining each partner’s duties and responsibilities.
36. Where a provider (or another legal entity that the OfS considers to be operating substantially the same higher education business) has previously been registered, a history of non-compliance with ongoing condition C1 is likely to result in a judgement that initial condition C5 is not satisfied. Similarly, for a provider in these circumstances, any regulatory interventions the OfS has previously made in relation to consumer protection law or treating students fairly, such as a referral to National Trading Standards, will be relevant to the OfS’s assessment of compliance with initial condition C5.
37. Where the OfS considers this initial condition satisfied, but identifies an increased risk of not treating students fairly, it may impose one or more specific ongoing conditions of registration, and will also consider whether additional monitoring requirements are appropriate. For example, where a provider does not intend to register any students when it seeks registration (because students will register with a lead provider in a subcontractual partnership), the OfS may require the provider to submit a reportable event if this position changes once it is registered. This may include requiring the provider to submit the contractual and other documents it intends to use in its relationships with students.
38. Any assessment that the OfS makes about whether a provider has satisfied this condition is not a judgement about whether the provider is complying with consumer protection law, and should not be seen as such. Providers will still need to seek their own legal advice to ensure compliance with the law.