Oxford Brookes University

In 2023, we referred Oxford Brookes University to National Trading Standards because we identified terms and conditions in the university’s terms of enrolment with students that we considered were likely to be unfair.

We had concerns about the following clauses:

‘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 blacklisted¹ 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 providers.² This 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.³ 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,⁴ 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

After working with Trading Standards, Oxford Brookes University made the following changes:

• 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.

Notes

[1] 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.

[2] 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.

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

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