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

15. The OfS has registered over 400 higher education providers and continues to assess applications for registration on an ongoing basis. Our proposals are informed by this work.
16. From our experience, requiring a provider to have had ‘due regard’ to relevant guidance about compliance with consumer protection law does not adequately ensure that the provider’s policies, contracts, terms and conditions are fair to students. A provider can have regard to Competition and Markets Authority (CMA) guidance (and therefore satisfy OfS initial condition C1) but, whether by an omission or through more deliberate means, it may nonetheless exhibit behaviour that is detrimental to students. This may include, for example, inaccurate, unclear, incomplete or misleading information about material matters; unfair terms and conditions; or unclear or unfair complaint handling processes. Such issues may hinder a student’s ability to make an informed decision about what and where to study and how to resolve, and seek redress for, problems that may arise during their studies.
17. Examples of behaviour that we have seen, and its impact, include:
    1. Misleading omissions of material information, such as failure to provide information about additional course costs in a timely manner (for example, the requirement to pay registration fees to a professional body). As a result, students may take a decision about what and where to study based on incomplete information.
    2. Contractual terms that allow the withdrawal of offers to students who have accepted these offers (for example, where a course is over- or under-subscribed). Students may be unable to secure alternative provision until the following academic year, and may have already made financial commitments related to study in a particular location that they are obliged to honour, for example, in relation to accommodation.
    3. Contractual terms that seek to limit a provider’s obligations to students in circumstances that are likely to be within its control, for example, industrial disputes involving the provider’s own staff. Students may not receive the teaching they are entitled to expect and any compensation due may be insufficient.
    4. Complaints processes that place unreasonable barriers to raising a complaint, for example allowing too short a timeframe between when an event occurs and the submission of a complaint about it. Students may be denied legitimate opportunities to have their complaints reviewed and addressed, including their ability to seek and receive compensation to which they may be entitled.
    5. False or misleading claims on a website, for example that access to student loans amounts to ‘receiving money to study’, or that a provider is offering ‘degrees’ or is a ‘university’ when it does not have authorisation to use these terms.⁴ This poses a risk that students may take a decision about what and where to study based on false information. A student may complete a course and obtain a certificate which does not have the value they would be entitled to expect.
18. The OfS has a partnership with National Trading Standards and, in July 2024, we published case studies and examples of terms and conditions that may be in breach of consumer law following a Trading Standards assessment.⁵ This is helping to drive up standards in the sector and, in the light of our concerns, we are proposing changes to our requirements for registration to complement this work programme.

4 See OfS, ‘Degree awarding powers’ and ‘University title’.

5 See OfS, ‘Students as consumers: Terms and conditions at risk of breaching consumer law’.

19. To provide more robust protections for students in light of the issues we have observed, we propose to strengthen the regulatory requirements we impose on a provider seeking registration. We are therefore proposing a new initial condition (condition C5) that replaces initial condition C1.
20. We have set out in Proposals 2 to 6 our detailed proposals for proposed new initial condition C5.

21. We have considered an alternative option to this proposal, which is set out in Annex B. This is to retain existing initial condition C1.