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

Key documents that contain provisions which have the purpose or effect of:

1. excluding or limiting the legal rights of the student in the event of the provider’s total or partial non-performance (or inadequate performance) of any of its contractual obligations. This includes the student’s right to offset money they owe to the provider against any claim;
2. allowing the provider to exercise wide discretion to withdraw offers, including in the case of over-subscription;
3. creating a disparity between the rights of the provider and the rights of the student by allowing the provider to retain money already paid by the student where the student decides not to sign the contract or withdraws from the contract after signing it, without also allowing for equivalent compensation to be paid to the student as where the provider cancels the contract;
4. requiring a student to pay a disproportionately high sum of money as penalty to the provider or for services which have not yet been supplied, where the student decides not to sign the contract or withdraws from the contract after signing it;
5. requiring a student to pay a disproportionately high sum of money as a penalty to the provider where the student fails to fulfil any of their obligations under the contract;
6. allowing the provider to terminate the contract on a discretionary basis;
7. allowing the provider to retain money paid by the student for services not yet supplied, where the provider cancels the contract;
8. automatically extending a fixed-term contract where the student does not indicate otherwise, when the deadline for the student to express a desire not to extend is unreasonably early;
9. binding a student to terms with which they have not had a real opportunity to familiarise themselves before signing the contract;
10. allowing the provider to unilaterally:
    1. alter the terms of the contract;
    2. define the characteristics of the services to be provided; or
    3. alter the characteristics of the services to be provided;
    after the student has signed the contract, and without valid reason which is specified in the contract;
11. allowing the provider to decide the price payable after the student has signed the contract (where no price or method of determining the price has previously been agreed);
12. allowing a provider to increase the price payable without giving the student the right to cancel the contract;
13. allowing the provider to determine whether the services supplied conform with the contract;
14. allowing the provider the exclusive right to interpret any term of the contract;
15. limiting the provider’s obligation to respect commitments undertaken by any agents working on its behalf;
16. obliging the student to fulfil all their obligations where the provider does not perform its own obligations;
17. allowing the provider to transfer its rights and obligations to another provider or organisation, where this may reduce the guarantees for the student, without the student’s agreement; or
18. excluding or hindering the student’s right to take legal action or exercise any other legal remedy, in particular by:
    1. requiring the student to take disputes exclusively to arbitration not covered by legal provisions;
    2. unduly restricting the evidence available to the student; or
    3. imposing on the student a burden of proof which, according to the applicable law, should lie with another party to the contract.

Actions or omissions (including those that are proposed or likely) that provide evidence of any of the following behaviours:

1. displaying or otherwise presenting inaccurate or false information, including:
   1. claiming that the provider is registered with the OfS when it is not;
   2. claiming that the provider is a ‘university’ without permission to use this term;
   3. claiming to offer ‘degrees’ when the provider has neither its own degree awarding powers nor a contract for degrees to be awarded by a provider with degree awarding powers;
   4. claiming that the provider (including any of its courses or other services or activities) is validated, accredited, approved, endorsed or authorised by any other body when it is not (or making such a claim without complying with the terms of the validation accreditation, approval, endorsement or authorisation);
   5. displaying logo, trust mark, quality mark or equivalent without having obtained the necessary authorisation from the relevant body);
   6. claiming with certainty that the provider will, in the future, be:
      1. registered with the OfS;
      2. able to use the term ‘university’;
      3. able to offer degrees;
      4. validated, accredited, approved, endorsed or authorised by any other body;
      5. or otherwise displaying or presenting information which pre-empts or appears to pre-empt any decision of the OfS or any other body;
   7. claiming that the provider is a signatory to a code of conduct when it is not (or that a code of conduct has an endorsement from a public or other body which it does not have).
2. Advertising, promoting or otherwise offering courses, course content, material components, features or elements of a course, other services or facilities, without disclosing the existence of any reasonable grounds the provider may have for believing it may be unable to provide these; or with the intention of not delivering what has been advertised, promoted or offered; or with the intention of delivering an alternative;
3. Applying pressure to elicit an immediate decision and deprive students of sufficient opportunity or time to make an informed choice. This includes falsely stating that an offer for services will only be available for a very limited time, or that it will only be available for particular terms for a very limited time;
4. Communicating (or allowing an agent working on the provider’s behalf to communicate) with a prospective student in a language which is not English without clearly disclosing to the student that the provision of services will be conducted in English, where this is the case;
5. Presenting as a distinctive feature of the provider’s offering, rights which a student would automatically have, in any case, in law;
6. Using editorial content in the media (including social media) to promote the provider’s services where the provider has paid for the promotion without making this clear to the student (through the content itself or by images or sounds which are clearly identifiable) (advertorial);
7. Displaying or otherwise presenting information about the provider or its activities which is likely to have the effect of misleading a student into believing something about the provider or its activities which is inaccurate or untrue;
8. Publishing or otherwise sharing materially false or inaccurate information about market conditions (or about other specific providers) with the intention of inducing the student to sign a contract with the provider;
9. Offering a prize, reward or other promotional benefit without awarding the prizes, rewards or benefits described (or a reasonable equivalent), or where the student is required to pay money or incur a cost to receive the prize, reward or other benefit (unless otherwise clearly explained);
10. Describing a service as ‘gratis’, ‘free’, ‘without charge’ or similar if the student has to pay any associated costs that have not otherwise been explained (including the repayment of student loans at a later date); or
11. Making persistent and unwanted contact with applicants or students by telephone, email, social media, or other means.

Any of the provider’s key documents and other information for students:

1. are not legible (clear enough to read);
2. are not drafted in clear and understandable language;
3. contain substantive inconsistencies, including inconsistencies within or between the provider’s own documents, and between the provider’s documents and those published or otherwise made available to students by another body with which the provider has a contract for the provision of higher education or ancillary services;
4. are otherwise confusing or unclear; or
5. are not expressly clear how they apply to different periods of time and different categories of students (for example, students that commenced a course of study on a particular date).

The provider’s policies:

1. do not provide information about circumstances in which it may make changes to all of the following:
   1. Courses (including changes to material components or content of a course, changes to subjects offered and course closure);
   2. Qualifications to be awarded (including circumstances where a validating partner has withdrawn validation);
   3. Mode of study (including full-time, part-time, online and hybrid provision, and including measures to address the needs of specific student groups, including accessibility needs);
   4. Teaching location and facilities (including closure of a campus, building or other facilities and including measures to address the needs of specific student groups, including accessibility needs);
   5. Course fees and other related fees or charges (for example, additional fees to resit exams).
2. do not contain provisions that would ensure all students are treated fairly in practice if any of the changes to courses set out in i. above take place.

The provider’s complaints processes:

1. contains unreasonable barriers to making a complaint (including unreasonable time limits within which a complaint may be made);
2. does not include a clear point of contact for making a complaint (including where this contact point is external to the provider as may be the case in some types of academic partnership);
3. does not set out clear and reasonable timescales for processing the complaint (including clear and reasonable timescales for students to respond to requests for further information);
4. does not provide a route for escalation and appeal where the student is dissatisfied with the outcome of the complaint, or the way in which the complaint is being (or has been) handled; or
5. does not make students aware of their ability to use the complaints scheme run by the Office of the Independent Adjudicator of Higher Education.

The provider’s refund and compensation policies:

1. are not clear about the circumstances in which a student would be entitled to a refund;
2. are not clear about the circumstances in which a student would be entitled to compensation;
3. do not clearly set out the provider’s approach to calculating refunds; or
4. do not clearly set out the provider’s approach to calculating compensation.

The provider (or another entity working on its behalf):

1. publishes a fake review for the provision of higher education or ancillary services. A review will be considered fake if:
   1. it falsely claims to have been written by a student;
   2. it is written by a student but the provider conceals that the student received a financial or other incentive, inducement or reward in return for their review;
2. Published reviews in a misleading way, including failing to publish negative reviews, removing negative reviews from publication, giving greater prominence to positive reviews;
3. Does not take reasonable and proportionate steps to:
   1. prevent the publication of fake reviews; or
   2. remove from publication any fake reviews.