Fairfield School of Business

In 2024, we referred Fairfield School of Business to National Trading Standards because of concerns we identified with some terms and conditions in its enrolment contract with students.

We had concerns about the following clauses:

'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.'

'Irrespective of how you pay for your course fees, for example, via the Student Loan Company or self-funding, course fees do not include possible additional fees incurred during your course such as resit fees (£15, unless attendance at the same time of the referral/resit is over 80%), admin fees for production of letters (£20 per letter, and £5 per duplicate), or DBS checks, where required (the fee for which will be set by a separate DBS checking agreement).'

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.¹’

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 upfront 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 FSB's 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 is therefore shall be entitled:

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. to 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 s 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 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 list² 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 [higher education] 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 blacklisted³ 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.

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

• The entire agreement clause which superseded all other communications, including that presented orally was amended to clearly state that FSB will rely on the written terms as the basis of the contract with students.
• The terms relating to DBS checks and associated fees were removed.
• The term which 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 which stated changes would not be considered substantial unless they altered matters specified in the contract by FSB was removed.
• FSB amended the term which 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 term relating to the interest FSB could charge students for the late payment of fees was amended and made more transparent from the 8 per cent per annum to 3 per cent above the Bank of England base rate per annum from the date of the missed payment.

Notes

[1] 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).

[2] 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.

[3] 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.