ICON College of Technology and Management

In 2023, we referred Oxford Brookes University to National Trading Standards because of concerns about some terms and conditions in its enrolment contract with students.

We had concerns about the following clauses:

'If you agree to transfer to such other courses as may be offered to you by ICON College (and for which you have the requisite qualifications), you will be liable for any variation in fees (tuition and any additional cost) between the original course (which is no longer available to you) and the replacement course you have agreed to transfer onto. This may result in you being required to pay more or less for your replacement course than you for your original course of study.'

We were concerned that this clause required students to meet the added costs of any changes to a course even if the change arose because of decisions made by the provider. This is contrary to paragraphs 5.18 – 5.25 of the Competition and Markets Authority (CMA) guidance to UK higher education providers.¹

'During the period between you accepting the offer and enrolment, where there is no material detriment to you, ICON College reserves the right to vary minor and material elements of your course from that described in the offer.'

We were concerned that this clause was subjective and therefore open to a broad and inconsistent interpretation, which could be to the detriment of students. This is contrary to paragraph 5.12 of the CMA guidance to UK higher education providers, which states that 'unfair terms legislation requires that your terms must be written in plain and intelligible language – they must be clear, transparent and legible…Even if a term would be clear to a lawyer, it may breach the legislation if it is unintelligible to students.'

'If ICON College makes such a material change, in ICON College’s reasonable opinion, which you reasonably believe will prejudicially affect you, you my either terminate the Contract and withdraw from the course without any liability to ICON College o future tuition fees or transfer to such other course (if any) as may be offered to you by ICON College and for which you have the requisite qualifications. You will remain liable for any fees incurred up to the date when the Contract terminates.'

We were concerned about this clause because it undermines the value of the college’s contractual obligations by preventing or hindering students from seeking appropriate remedies when the college has not complied with its obligations. This clause does not reflect the guidance in paragraphs 5.34 – 5.40 of the CMA guidance to UK higher education providers.

'ICON College will use reasonable endeavours to provide for the provision of online delivery of any part of your course (as may be required) but cannot guarantee uninterrupted, timely or error-free availability or that defects will be corrected. ICON College reserves the right to suspend access to the virtual learning platform for the provision of online delivery of any part of your course for the purposes of scheduled or emergency maintenance, repairs or upgrades to improve the performance or functionality or the virtual learning platform. ICON College will us reasonable endeavours to provide you with reasonable notice in the event of any suspension or withdrawal of the virtual learning platform of which ICON College is aware. Providing ICON College has complied with the provisions of this clause, ICON College will not be held responsible for any technical problems you encounter following the provision of online delivery of any part of your course and accepts no liability to the extent there are errors, defects, interruptions and periods of suspension relating to the virtual learning environment.'

We were concerned about this clause because it sought to limit the college’s liability for any losses incurred as a result of problems or defects in the virtual learning environment which are outside the control of students. This clause does not reflect the guidance in paragraph 5.36 of the CMA guidance to UK higher education providers.

'Where such loss or damage is directly caused by ICON College (or its staff or representatives), our liability shall, subject to clause 13.5, be limited to 100 per cent of all tuition fees payable by you to ICON College.'

We were concerned with this clause because it is contrary to the CMA guidance to higher education providers as it seeks to limit the college’s liability to 100 per cent of the total sums paid by the student. This type of term may be blacklisted under the Consumer Rights Act 2015.² In addition, Guidance 2(c) limitations of liability paragraph 5.6.1 states: '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 the trader’s liability are open to the same objections as those which exclude it altogether'.

'We shall not be liable to you in any manner whatsoever for any failure or delay, or for the consequences of any failure or delay, in performance of our obligations under the Contract, if such failure or delay is due to any event beyond our reasonable control (including, but not limited to strikes, lockouts or other industrial action, acts of God, severe weather, natural disasters, pandemic or epidemic (excluding Covid-19), quarantine or widespread illness, war, protest, riot, civil disorder or unrest, fire, explosion, an actual, suspected or threatened act of terrorism, national emergencies, any restrictions imposed by government or public authorities, breakdown of plant machinery, actions or default of placement providers or default of suppliers or sub-contractors), In such circumstances, we shall take reasonable steps to minimise any disruption.'

We were concerned about this clause because it did not contain information on the reasonable steps that would be taken by the college to minimise the disruption caused by events outside its reasonable control so that students could foresee when and how they are likely to be affected. This does not reflect the guidance in paragraphs 5.41 of the CMA guidance to UK higher education providers.

'The contract constitutes the entire agreement between you and ICON College and supersedes all previous agreements between you and ICON College, whether written or oral.'

We were concerned this clause is unfair and unenforceable under the Consumer Rights Act 2015 because it supersedes all other communications, including that presented orally. This is contrary to paragraph 3.11 of the CMA guidance to UK higher education providers which states 'information given to students whether in writing or in oral representations may be treated as a term of the contract and therefore be legally binding'.

After working with Trading Standards, the college made the following changes:

• The wording which stated that the student would be liable to meet any increased costs where they agreed to transfer to another course was amended to clearly state that the student would only be liable to pay the price of the original course, meaning the college would meet any additional costs in full.
• The wording which limited liability to 100 per cent of the total sums paid by the student was removed.
• The term which undermined the value of the college’s contractual obligations to students was amended to specify that students may be entitled to a full or partial refund of fees depending on the circumstances.
• The clause which limited the college’s liability for some events was updated to specify the reasonable steps the college would take to minimise any disruption to studies caused by events outside its reasonable control.
• The clause which referenced material detriment was amended to make the term clearer.
• The clause which limited the college’s liability for issues arising from its IT systems and the Virtual Learning Environment was removed.
• The clause which excluded previous agreements between students and the college was removed from the updated terms and conditions.

Notes

[1] The CMA updated this guidance in May 2023. All references to specific parts of the guidance in this case report refer to the updated guidance which was in place when the OfS referred these matters to National Trading Standards. The updated guidance is available here: Higher education: consumer law advice for providers - GOV.UK (www.gov.uk)

[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.