Fairfield School of Business

Students have a right to fair, clear and accessible terms and conditions in the contract they have with their university or college so that they benefit from the protections of consumer law and understand their rights.

This case report provides an example of our work to protect students’ consumer rights before and during their studies.

We have also published a version of this case report for students to explain the sort of contract terms that could undermine their consumer rights, and what they should look out for when reviewing terms and conditions. 

Where students, their representatives and students’ unions have concerns about terms and conditions, they should raise these with their university or college. If this doesn’t lead to a satisfactory outcome, they can raise a complaint with the Office for the Independent Adjudicator. They can also notify us about concerns that a university or college is not meeting its obligation to uphold students’ consumer rights. 

Only a court can determine whether consumer protection law has been breached. The case report sets out work the OfS and Trading Standards have done to ensure a provider’s student contracts do not contain terms that could be deemed unfair or to affect students’ consumer rights.

Case overview 

The OfS referred Fairfield School of Business (FSB) to National Trading Standards in April 2024, because we identified terms and conditions in the higher education provider’s contract with students that we considered were likely to be unfair. A Trading Standards assessment identified elements in FSB’s terms and conditions that it considered could be deemed to be unfair and may not comply with the provisions of Part 2 of the Consumer Rights Act 2015. FSB worked with Trading Standards to change its terms and informed current and re-enrolling students of the revised terms and conditions. Because FSB took action to address these issues, the OfS is taking no further regulatory action.

This case report sets out the OfS’s role in protecting students’ consumer rights, and shows how our partnership with National Trading Standards works in practice to identify and assess whether a higher education provider’s terms and conditions could be deemed to be unfair under consumer protection law.¹ It explores the terms and conditions we had concerns about in this case, and how these were resolved through our partnership with Trading Standards and the action it took. 

We encourage other universities and colleges to use this case report to familiarise themselves with their legal obligations and to revisit their own terms and conditions where that is necessary to ensure compliance with consumer protection legislation. Any changes should be communicated clearly to students. 

The consumer rights issue

The OfS engaged with FSB in 2023, after we identified some aspects of terms and conditions in its contract with students that we considered were likely to be unfair and may not comply with consumer law. We were concerned that, overall, FSB’s terms and conditions compromised students’ rights because the document contained clauses relating to extra costs that were not likely to be clear, intelligible and unambiguous as required by the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Contracts (Information, Cancellation and Additional Charged) Regulations 2013 and the Competition and Market’s Authority (CMA) guidance to UK higher education providers.² FSB made some changes to its terms. However, we identified several issues in the updated terms that gave rise to further concerns about compliance with consumer protection law.

The clauses we were particularly concerned about were:

'These terms, together with the matters referred to in any document setting out the offer made to you (“the offer”) (directly to you by FSB and on the enrolment form or on-line application) form the entire agreement and understanding between you and FSB with regard to the course and replace any other written or verbal promises, undertakings or representations.'

We were concerned this entire agreement clause is unfair and unenforceable under the Consumer Rights Act 2015 because it supersedes all other communications, including any presented orally. This is contrary to paragraph 3.11 of the CMA guidance to UK higher education providers, which states ‘Additionally, when a student is given information about the service (in writing or orally), if it is taken into account by the student when deciding to enter the contract (or when making a decision about the service after entering the contract) it is likely to be treated as a term of the contract and to be legally binding’.

‘FSB reserves the right to request, at any time before or after enrolment, that you apply for a basic disclosure check, i.e., you will make an application to the Disclosure and Barring Service (“DBS”) to check for any convictions (“Basic Disclosure”) at your own cost and provide the results of the disclosure check to FSB within 3 working days of receipt of the results from the DBS. DBS checks are not refundable.’

We were concerned about these terms because they did not include adequate information about the specific additional fee to be incurred as the separate DBS checking policy was not publicly available. This is contrary to paragraph 4.16 of the CMA guidance to UK higher education providers, which advises ‘if you do not provide prospective students with the necessary material information that they need at appropriate times, including before they make a decision about which providers courses to apply to, this may constitute a ‘misleading omission’ under the Consumer Protection Regulations.³’ This also did not accord with paragraph 5.6 of the CMA guidance, which states that important information should be easy to find and presented up-front in the same place as other relevant information.

‘FSB will use all reasonable endeavours to deliver the course in accordance with the description applied to it in FSBs marketing promotional materials (e.g. website entries or prospectus) for the academic year in which you begin the course. However, FSB has limited resources which it has to manage in an efficient way, in the context of the provision of a wide range of courses to a large number of students. FSB shall therefore be entitled to:

i. at any time to make non-substantial alterations to the timetable applicable to you

ii. to alter the number of classes relating to the course

iii. alter the methods by which the course is delivered and to alter the location of delivery of the course

iv. to make reasonable variations to the content and syllabus of the course, such changes not to be considered substantial, required in order to comply with any changes in the law, changes required in order to comply with FSB’s accrediting bodies, update course material in order to reflect best practice and academic development.’

‘Such changes would not be considered substantial unless they would alter the study mode, academic classification, or eligibility for benefits, immigration status or Council tax credit purposes of the course.’

‘FSB shall not be held responsible for any loss, damage or expense resulting from any delay, variation or failure in the provision of the services or facilities relating to any programme or course arising from circumstances beyond FSB’s reasonable control.’

We were concerned about these clauses because they allow FSB unreasonably wide discretion to significantly alter aspects of courses, including methods, location, and delivery of the course. This is contrary to the CMA guidance to UK higher education providers, which advises in paragraph 5.26 that ‘a term that allows blanket changes and affords the HE provider a broad discretion to change significant aspects of the course (such as the course content, the method of course delivery…) without describing the circumstances when and reasons why this might happen so that the student is able to foresee how and when changes might be made and understand the impact on them, is unlikely to be considered fair given the potential detriment that could be caused to the student by significant changes to what was expected. Changes provided for in a term should be narrow in scope and limited to what is objectively necessary’.

We also had concerns that these clauses included grey listed terms from the Consumer Rights Act 2015 because they had the object or effect of enabling the trader to alter terms about the contract unilaterally without a valid reason which is specified in the contract’.

'If payment of the course fees (or any instalment under an instalment plan) is not made by the agreed date(s), you will be charged a late fee of £15:00 per missed instalment. We also reserve the right to charge interest at 8% per annum from the date of the missed instalment and recover any costs of instructing a third party to recover the debt. If you pay by cheque and that cheque is returned unpaid, an additional bank and administrative charge of £30 per dishonoured cheque will be added to the fee balance.’

We were concerned about this term because it did not align with paragraph 5.8 of the CMA guidance to UK higher education providers, which advises providers to ensure any terms that may be particularly surprising or important, and especially those whose significance may be missed, are specifically brought to a student’s attention. This non-exhaustive list in the guidance includes ‘a charge that allows a HE [higher education] provider to impose a financial sanction on the student for a breach of the contract for educational services, e.g. a charge for late payment of tuition fees’.

The term also required students to pay charges that appeared disproportionate and seemed to have the same effect as terms included in the grey list⁴ of the Consumer Rights Act 2015 and were contrary to paragraph 5.14 of its guidance to UK higher education providers, which states that ‘a term in an HE provider’s rules and regulations will be unfair under unfair legislation if it creates a significant imbalance between the parties’ rights and obligations under the contract to the detriment of the student and is contrary to the requirement of ‘good faith’.

‘Although FSB shall endeavour to ensure that computer equipment and software it makes available for your use has reasonable security and anti-virus facilities and protections, your use of such computer equipment and any software provided by FSB is at your own risk. FSB shall not therefore be liable for any loss or damage suffered by you as a result of use of any computer equipment or software provided or made available by FSB to you, including (but without limiting the general nature of this condition) any contamination of software or loss of files as a result of using FSB equipment or software.’

We were concerned about this term because it seeks to limit FSB’s liability to students. Such terms are blacklisted⁵ because they contradict contract law and the provisions of the Consumer Rights Act 2015 as outlined in paragraphs 5.34 to 5.36 of the CMA guidance for UK higher education providers.

The Trading Standards assessment

Due to our concerns about the higher education provider’s updated terms, we referred the case to National Trading Standards. Through our partnership, Trading Standards will examine each referral it receives from the OfS. The agreement means that we are supported by Trading Standards’ expertise in understanding and enforcing consumer protection legislation so that together we can effectively protect students’ consumer rights. 

Trading Standards advised the higher education provider that some aspects of its terms and conditions may not comply with the provisions of the Consumer Rights Act 2015, Part 2 Unfair Terms. Trading Standards advised the OfS that it considered these terms could be deemed unfair under the legislation because the terms as written caused significant imbalance in the rights and obligations of the university and students, which causes detriment to students.^[6]

Resolving the issue

FSB responded to the advice from Trading Standards by updating its contract with students for the 2024-25 academic year. The main changes FSB made were:

• The entire agreement clause that superseded all other communications, including any presented orally, was amended to clearly state that FSB will rely on the written terms as the basis of the contract with students. The following statement was also included in the amended term: ’if you have received any verbal waiver or modification of these terms, it is essential that you ask for these to be put in writing beforehand. In this way any problems arising between you the student and FBS about what you are expected to do can be resolved’.
• The terms relating to DBS checks and associated fees were removed and replaced with:
  • A new term that clearly states that providing FSB with an appropriate level of DBS disclosure is a condition of admittance on courses which lead to a profession that requires a DBS check.
  • A term that included access to detailed information about DBS checks as well as confirmation of the fees FSB would charge for obtaining a DBS check on a student’s behalf.
• The term that gave FSB a wide discretion to vary course content and structure was replaced with a new term detailing the circumstances beyond FSB’s reasonable control that would require alterations to the contract to ensure the course was delivered.
• The term that stated changes would not be considered substantial unless they altered matters specified in the contract by FSB was removed.
• FSB amended the term that stated it would not be responsible for any loss, damage or expense resulting from any delay, variation or failure in the provision of the services or facilities relating to any programme or course arising from circumstances beyond FSB’s reasonable control. The updated term includes examples of events outside of FSB’s reasonable control and states that FSB will seek to minimise the effect of disruption and will make necessary arrangements to ensure courses are delivered in full.
• The term relating to the interest FSB could charge students for the late payment of fees was amended and made more Specifically, it changes the rate of interest from eight per cent per annum to three per cent about the Bank of England base rate per annum from the date of the missed payment.
• FSB updated the relevant pages on its website to make new and re-enrolling students aware of the changes, as requested by Trading Standards. FSB also received general advice on compliance with consumer protection law and Trading Standards closed the case with no further action.

The OfS did not take any further regulatory action against FSB on these issues.

We will continue to refer cases to National Trading Standards where we have concerns, and we expect to publish further case reports explaining the outcomes of these cases.

Notes

[1] See New OfS-National Trading Standards partnership to protect students’ rights as consumers.

[2] This guidance Consumer law advice for higher education providers (publishing.service.gov.uk) was updated in May 2023. All references in this case report refer to the updated guidance.

[3] A ‘misleading omission’ may occur if you omit material information that the average consumer needs, according to context, to make an informed transactional decision, or if you provide material information in an unclear, unintelligible, or ambiguous was (Regulation 6 of the CPRs).

[4] The Consumer Rights Act 2015 contains a list of terms that may be regarded as unfair, known as the ‘grey list’. This also applies to terms that have the same purpose or effect as terms on the grey list. However, these terms are not automatically unfair.

[5] Part 2 of the Consumer Rights Act 2015 contains terms and notices that are automatically unenforceable against consumers. Part 1 of the Act also blacklists certain terms and notices, making them automatically unenforceable and open to challenge.

[6] The Consumer Rights Act 2015 contains an indicative and non-exhaustive list in Part 2 Schedule 2 of terms that may be regarded as unfair, known as the grey list. This also applies to terms that have the same purpose or effect as terms on the grey list. However, these terms are not automatically unfair.