Oxford Brookes University

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 Oxford Brookes University to National Trading Standards in 2023, because we identified terms and conditions in the university’s contract with students that we considered were likely to be unfair. A Trading Standards assessment identified elements in the university’s terms and conditions of enrolment 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. The university worked with Trading Standards to change its terms and informed current and re-enrolling students of the changes. Because the university 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 first engaged with Oxford Brookes University in 2021 after we identified some aspects of terms and conditions in its enrolment contract with students that we considered were likely to be unfair and may not comply with consumer law. We were aware that the university had sought to rely on and enforce some of the terms we were concerned about on at least one occasion. The university conducted a comprehensive review of its terms and conditions of enrolment as part of its response to our engagement and made several changes to its terms for the 2022-23 academic year.

However, we identified several issues in the updated terms that gave rise to other concerns about compliance with consumer protection law.

The clauses we were particularly concerned about were:

‘Save as aforesaid for death or personal injury, our liability to you for all other loss or damage suffered by you shall be limited to 150% of the total sums paid by you to the university whilst enrolled on your programme whether your claim is brought under these terms and conditions or otherwise.’

We were concerned about this term because it seeks to limit the university’s liability to students. Such terms are blacklisted² 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 Competition and Markets Authority (CMA) guidance for UK higher education providers³ as well as paragraph 5.6.1 of the CMA’s Unfair Contract Terms Guidance.⁴ This guidance states that ‘if a contract is to be fully and equally binding on both trader and consumer, each party should be entitled to full compensation where the other fails to honour its obligations. Clauses which limit a trader’s liability are open to the same objections as those which exclude it altogether’.

‘We will not be liable to you for events outside our control which we could not have foreseen or prevented even if we had taken reasonable care. Events outside our control include, without limitation, industrial action, over or under demand from students, staff illness, significant changes to our funding or Government direction to higher education, severe weather, fire […]’

We were concerned about this term because it listed examples that could reasonably be within the university’s control and therefore unlikely to be classified as a force majeure (an event for which no party can be held accountable) and should not be used to limit liability.⁵ This is contrary to paragraphs 5.22 to 5.24 of the CMA guidance to higher education providers. While the clause goes on to commit the university to taking reasonable and proportionate steps to mitigate the impact on students, the term still seeks to limit liability.

‘These terms and conditions, the university regulations, the programme specification and the programme handbook are intended to be mutually explanatory but in the event of a discrepancy then the order of precedence shall be as follows: (1) these terms and conditions; (2) the university regulations; (3) the programme specification; and (4) the program handbook.’

We were concerned this entire agreement clause is unfair and unenforceable under the Consumer Rights Act 2015 because it does not allow the student to take into account oral representations made to them which may have induced them into the contract. This is contrary to paragraph 3.11 of the updated CMA guidance to UK higher education providers,⁶ 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'.

The Trading Standards assessment

Due to our concerns about the university’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 university 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.⁷

Resolving the issue

The university responded to the advice from Trading Standards by updating its contract with students for the 2023-24 academic year. The main changes the university made were:

• The term that limited the university’s liability to 150 per cent of the total amount of the tuition fees paid for all loss or damage that students suffer while enrolled at the university was removed.
• The wording in the clause that limited liability for industrial action was removed.
• The entire agreement clause that specified the order of precedence in the event of discrepancies in the information provided to students and excluded oral representations was removed.

The university updated the relevant pages on its website to make new and re-enrolling students aware of the changes, as requested by Trading Standards. The university 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 the university 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] 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.

[3] The CMA updated this guidance in May 2023. However, most references to specific parts of the guidance in this case report refer to the CMA guidance published in 2015 and that were in place when the concerns were first identified by the OfS and referred to National Trading Standards. As a result, some paragraph numbers have changed in the updated guidance.

[4] See 'Unfair contract terms guidance: Guidance on the unfair terms provisions in the Consumer Rights Act 2015‘.

[5] Force majeure is a contract clause that removes liability for certain acts, events or circumstances beyond the reasonable control of parties.

[6] See Consumer law advice for higher education providers (publishing.service.gov.uk).

[7] 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.