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

90. Paragraphs 91 to 109 set out why we are proposing to define each proposed element of the scope of the condition in the suggested way.

Prospective students

91. We propose that a provider’s relationship with a prospective student should be in scope from the point an offer has been made, as we think this is when the provider’s actions or omissions have the most potential to affect a student. For example, if the provider omits to inform the individual about additional course costs by the point of offer, this omission may influence (and could be decisive in) the individual’s decision about whether to accept the offer. We are proposing to limit the application of the condition to those individuals where it is reasonably foreseeable for them to be affected by a provider’s actions or omissions.

Former students

92. We propose that a provider’s relationships with its former students should be in scope insofar as there is a current relationship based on the individual having previously been a student of the provider (for example, where there is an ongoing complaint). Our initial view is that a provider’s responsibility towards a student may not end strictly on the day the student completes their course. For the avoidance of doubt, the intended scope of ‘relationship’ under this condition is similar to that between a consumer and a service provider and ‘former student’ is not intended to refer to other types of relationship that may exist between a provider and its alumni on an ongoing basis.

Students studying as part of their employment

93. We propose that the condition should apply to all students, regardless of arrangements for tuition or other related fees and whether or not the student is studying as part of their employment. This includes, but is not limited to, apprenticeship students. All students make significant investments in their study in the form of time and effort, even those who are not charged tuition fees directly. They may have many of the same legitimate expectations as any other students, for example:
    1. While the legal contractual responsibility of a provider may be to a student’s employer in relation to the educational services delivered, students studying as part of an apprenticeship may expect, for example, to receive accurate and unambiguous information about their course.
    2. The mechanisms for making complaints (and options for redress) may legitimately differ from those for other students (for example, apprentices may not be entitled to claim or receive refunds of tuition fees), but apprentices may expect a complaints process to be available, accessible and managed fairly, and for their provider to make provision for appropriate redress.
    3. A student undertaking a course as part of their employment may independently contract with a higher education provider in relation to non-academic services (for example, sports facilities owned and managed by the provider). While a provider’s contractual responsibility for academic services may typically be to an employer, the provider may have other non-academic contractual responsibilities to a student.

Alternative options considered

94. We have included alternative options that we have considered in Annex B. These are to:
    1. Exclude prospective and former students.
    2. Use alternative definitions for prospective and former students (either more narrow or more broad: for example, a prospective student might be defined from the point at which they submit their application, which may be particularly pertinent where a student is applying through UCAS, which limits the number of providers to which an individual can apply)
    3. Exclude students studying as part of their employment.

Question

Question 5a: What are your views on the definition of students in the proposed condition (to include current, prospective and former students)?

Higher education

95. We propose that the ‘provision of higher education’ should apply broadly and include all higher education courses, at any level and with any volume of learning (including standalone modules and microcredentials). We propose that this would include higher education provided face-to-face, by distance learning, or through a combination of both methods.
96. We propose to refer to the provision of higher education as a ‘service’, whether or not tuition or other fees are charged and whether the education is provided on a ‘for profit’ or a ‘not for profit’ basis.

Ancillary services

97. Alongside higher education, we propose to include the provision of ‘ancillary services’ in the scope of the condition. We define these as services where a contract exists between a provider and a student as part of their higher education experience (including but not limited to the provision of library services, disability support packages, scholarships, accommodation and sports facilities). This proposal recognises that there may be several factors influencing a student’s decision about what and where to study (and influencing their experience of higher education once they are studying). We suggest that these may include the educational and financial support available to them, where they might live and the non-academic facilities on offer. Where the information provided about ancillary services is unclear or inaccurate, this may impact a student’s choice of provider or course, and where the associated terms of service are unclear or unfair, this may influence a student’s higher education experience.

Illustrative list of ancillary services

98. The illustrative list of ancillary services proposed reflects those we think may be the most important to students. We do not propose that a provider would normally be required to submit contracts to us beyond those associated with this list (Proposal 6). However, where we are made aware of other contracts and these appear to contain unfair terms, we propose to request further information from the provider to verify any additional information we have received. For example, we may be made aware of such contracts through concerns raised with us by students. We propose this approach to ensure we take account of all relevant evidence, while considering the time needed for a provider to compile and submit documentation for assessment.

Third party services excluded

99. We are not proposing to include ancillary services that are available to the provider’s students where the contract is between a student and a third party. Our initial view is that a provider should undertake due diligence on any third parties it allows to offer services to its students on its premises (and it is responsible for any contracts it enters into itself with any such third parties). However, our initial view is that it is a more proportionate and pragmatic approach to limit the scope of this aspect of the condition to instances where a provider holds a contract directly with a student.

Alternative options considered

100. We have included alternative options that we have considered in Annex B. These are to:
     1. Focus on the provision of teaching (and therefore not include ancillary services in the scope of the condition).
     2. Provide an exhaustive list of ancillary services (not including flexibility for the OfS to consider a broader range of ancillary services).
     3. Include third party ancillary services.

Question

Question 5b: What are your views on the inclusion and definition of ancillary services?

Defining information for students broadly

101. The scope of the draft condition includes the offering of higher education and ancillary services; for example, by making arrangements to ‘attract students, encourage applications to become students, or to otherwise communicate with students’. The condition further defines ‘information for students’ as ‘including, but not limited to, advertising and marketing material, and actual or proposed information that may be published on [the provider’s] website.’
102. We want to test whether the information the provider shares with students is clear and accurate, and the proposed provision has been drafted widely to capture any information a student might rely on in this respect. Information for students could include, for example, emails or other forms of communication with individual students, presentations delivered at open days, or any written material distributed or otherwise used to inform communications with students (for example, scripts for recruitment phone calls). We are not proposing that all providers would be required to submit such materials as a matter of course as part of their application (Proposal 6). However, we are proposing that the condition should allow consideration of these, for example:
     1. Where such materials are publicly available (for example, where these are published on the provider’s website).
     2. Where we request or require additional evidence from the provider through the course of the assessment (for example, where a third party notification raises a concern which prompts us to investigate further).
103. The OfS occasionally receives third party notifications about unregistered providers, or receives other evidence or intelligence through its regulation of other providers, media reporting or other publicly available information. We propose that any such information may be considered, to ensure that we make use of all relevant information to inform our assessment. Where we consider such information, we propose that we may undertake further investigatory work to verify the information and establish the facts.
104. Where the draft condition refers to arrangements a provider ‘plans to make’ and ‘proposed information’ that may be published on its website, this is primarily to capture circumstances in which a provider is not yet in operation (or in operation but not yet offering higher education or ancillary services), and may not yet have published key documents or information.

Alternative options considered

105. We have included alternative options that we have considered in Annex B. This is to use a narrower definition of ‘information for students’.

Question

Question 5c: What are your views on the definition of ‘information for students’?

106. We propose that initial condition C5 would apply to any higher education provided ‘by, or on behalf of, a provider’. We propose that the condition would apply to any provider seeking registration. regardless of whether it registers (or will register) any students. For the avoidance of doubt this means, for example, that the condition would apply to a provider where it only delivers (or intends to deliver, if registered) higher education:
     • through a subcontractual (often referred to as a ‘franchise’) partnership where students are ordinarily registered at the lead provider
     • through a validation partnership.
107. Likewise, we propose that the condition would apply to the ‘lead’ provider in any such relationships; in other words, those providers that subcontract (franchise) or provide validation services to other providers. These providers may not deliver the teaching but do have other responsibilities and duties towards students.
108. This proposal is in line with the OfS’s existing approach to regulating quality, standards and student outcomes through the B conditions of registration, and we propose that our existing approach to regulating providers in partnership arrangements should apply equally to consumer protection matters and the fair treatment of students. As with our other conditions, the effect of the proposal is that, in practice, more than one provider seeking registration may be responsible for compliance with this condition in relation to the same students.

Flexible approach to submission requirements

109. We are proposing that a provider working in partnership with other providers or organisations may be able to satisfy submission requirements by submitting a combination of its own and other providers’ or organisations’ documents, based on the responsibilities of each partner as these are set out in the contractual agreements in place between them (and with a student). We have set out further detail under Proposal 6.

Question

Question 5d: What are your views on our proposed approach to providers delivering higher education through partnerships?