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

22. A provider seeking registration is currently required to demonstrate that in developing and implementing its policies, procedures, terms and conditions it has given due regard to relevant guidance about how to comply with consumer protection law. However, a provider is not required to account for how it has ensured that it is treating students fairly in relation to consumer protection. As a result, we see situations where a provider may satisfy the current condition, but its policies and student-facing documents (for example, terms and conditions) may be unfair to students.
23. Our proposed requirement instead aims to test whether a provider’s policies and practices protect students’ consumer interests and are fair in practice, thereby providing more robust and consistent protection for students. Although there are legal routes for students to challenge potentially unfair contractual terms (and our arrangement with National Trading Standards aims to tackle issues of significant concern) our initial view is that the most effective way to protect students is to ensure that each provider acts fairly towards students from the outset.

24. While many students do not explicitly refer to their experiences as consumers, when we ask what is important to them, words such as ‘fairness’ and ‘honesty’ are often used as they describe specific experiences and promises that have not been met.⁶ In many cases, these experiences relate to a service that has not been delivered well, or on time, or as advertised.
25. Based on our engagement with students, our initial view is that the concept of ‘fairness’ is important to their consumer experience. Students should receive accurate and honest information, an experience that is in line with what has been promised, and fair processes through which they can complain and seek redress where this is not the case. Students invest time, money and effort in their higher education and they should be treated fairly. We therefore propose that this should be the overarching requirement in relation to consumer and student protection.
26. While ‘fairness’ is also a legal concept, we are proposing that the concept, when applied to our registration requirements, should go beyond the existing legal provisions. In other words, we are proposing to introduce an OfS view of fairness in the context of higher education. We are therefore proposing that initial condition C5 is informed by legal concepts but is not limited to matters that may be strictly unlawful. (See Proposal 4.)

6 See OfS, ‘Defining our approach to student interest’.

27. We have considered alternative options to this proposal, which are set out in Annex B. These are to:
    1. Require compliance with the law (relying solely on evidence of non-compliance to determine whether the condition is satisfied).
    2. Focus on a provider’s approach to complying with the law (requiring submission of a narrative describing a provider’s approach).