Protecting students as consumers

Read the Insight brief online

• Introduction
• The emergence of the ‘student consumer’
• Consumer protection law in higher education
• Examples
• What the OfS is doing
• ​Next steps for the OfS
• Conclusion

Introduction

Students have consumer rights and are protected by consumer protection law. However, many are young and inexperienced consumers, making important choices about what and where to study with limited personal knowledge to guide them. In addition, choosing a university and course is likely to be a one-off decision, and can be difficult to change once a student has started.¹ It also leads to a significant investment of their time and money.²

While the idea of students as ‘consumers’ of their higher education is by no means uncontested, consumer protection legislation generally means that students should receive clear, accurate and timely information about their course and university or college; that student contracts should contain fair terms and conditions; and that there should be fair mechanisms for dealing with complaints.

The Office for Students (OfS) plays an important role in protecting students’ consumer interests. Our regulation is designed to empower student choice and incentivise existing and new providers of higher education to focus on students’ needs. Our conditions of registration include an explicit requirement that institutions demonstrate they have given due regard to relevant guidance about how to comply with consumer protection law in developing and implementing their policies.

The scope of consumer protection law as it relates to higher education is wide. In addition to teaching and learning, it applies to a range of other services, such as accommodation and support, provided by universities and colleges for current and prospective students. The brief does not attempt to cover all these, but considers some of the themes and areas most relevant to the OfS’s regulation. In this brief we will discuss the background to the concept of the ‘student consumer’; some of the guidance and legislation relating to consumer protection; how protecting consumer rights is addressed in our regulatory framework; and the OfS’s work in this area.

The emergence of the ‘student consumer’

The emergence of the ‘student consumer’ in English higher education discourse is connected with what has been described as the ‘marketisation’ of higher education. At its simplest, this term is used to refer to a series of reforms to the funding of higher education in England introduced by successive governments over several decades. The most notable of these, the shift from government grants to fund teaching to government-subsidised student loans, has meant that students are increasingly making a significant personal financial investment in their higher education.³

These developments gained new prominence with the tripling of annual undergraduate tuition fees (from £3,000 to £9,000) for English students in 2012. The 2011 higher education white paper, ‘Students at the heart of the system’, set out the rationale for these reforms with explicit reference to the language of the market; their aim was to stimulate greater competition and choice, and to promote efficiencies. It also discussed the aim to empower students as consumers, through improving information for prospective students and making student feedback available.⁴

Much of the commentary on students as consumers is framed by critics of these changes. They object to marketisation, specifically its perceived threat to pedagogy and, some claim, the core role and mission of higher education institutions. They are concerned that the characterisation of students as consumers obscures and underplays the collaborative nature of their relationship with their university or college and their learning.⁵ It is not the role of this brief to comment on or analyse these debates and discussions, but they set the scene for more recent developments in this area.

In 2014, the former responsibilities of the Office of Fair Trading were passed to several different organisations, including the Competition and Markets Authority (CMA). In 2015, the CMA published a policy paper that recommended reform to the regulatory framework for higher education in England. This contributed to the policy and legislative developments that ultimately led to the creation of the OfS as the regulator for higher education in England, and to the current regulatory framework.⁶

In 2015, the CMA also published guidance on consumer protection law for UK higher education providers. This guidance was refreshed in 2023. Its introduction sets out the main elements of the law as it applies to students, and notes that a focus on consumer protection does not preclude a focus on other elements of the relationship between students and institutions.

‘The advice is particularly important given the extent to which [higher education] providers’ funding comes directly from students. This has highlighted particular expectations of providers when it comes to, for example, the information they provide about the degrees and courses available, the choices on offer, how teaching will be delivered, students’ rights as consumers, and how complaints by students will be handled. Consumer protection law is therefore an important aspect of [a higher education] provider’s relationship with students, together with the existence of a supportive learning and pastoral environment within an academic community.’⁷

(CMA, ‘UK higher education providers: Advice on consumer protection law’, 2023)

Consumer protection law in higher education

Consumer protection law addresses two main areas: the rights of the buyer and the responsibilities of the seller. When a student registers on a higher education course, they buy a service from a university or college. They usually do so in a personal capacity. Students are therefore ‘consumers’ for the purpose of consumer protection law. This gives them consumer rights and means that their course providers must comply with consumer protection law. The OfS expects higher education providers to treat all students as consumers for the purposes of consumer protection law.

There are a number of sources of consumer protection law in England. These include the Consumer Rights Act 2015, the Consumer Protection from Unfair Trading Regulations 2008, and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.¹⁷ Consumer protection law covers a wide range of areas, including advertising, pre-contractual information, terms and conditions of contracts, contract variations and complaints.

The CMA has published advice on consumer protection law for higher education providers, which sets out how consumer protection law applies to them.¹⁸ This advice has recently been updated, particularly in its references to the law and stakeholders. The advice is aimed at helping institutions to understand their responsibilities under consumer protection law when dealing with undergraduate students. It focuses on the following three core areas:

• Information provision at the application, offer and enrolment stages, to ensure students are given clear, accurate, comprehensive, unambiguous and timely information.
• Ensuring that contractual terms and conditions between higher education providers and students are fair and do not disadvantage students.
• Accessible, clear and fair complaint handling processes and practices.

Below we set out some key provisions of consumer protection law and the OfS’s view about how these provisions might apply in higher education scenarios. This should not be read as a guide to consumer protection law or as legal advice.

Reasonable care and skill

Consumer protection law requires a higher education provider to provide educational services with reasonable care and skill. While there is no definition of ‘reasonable care and skill’ in the Consumer Rights Act, it is understood that industry standards or codes of practice will be considered in determining whether the standard of reasonable care and skill has been met.

For higher education providers registered with the OfS, we consider that the quality and standards conditions (‘B’ conditions) in our regulatory framework may be relevant, along with other standards in the particular sector or industry related to the subjects taught, although compliance with our minimum quality requirements does not necessarily constitute compliance with consumer protection law. If a university or college does not meet the reasonable care and skill requirement, it is likely to be in breach of the contract with its students.

Information

There are important legal provisions that mean statements made by a provider of services at the time a consumer enters into a contract can become binding.¹⁹ This means that it is essential for an institution to set out clear and accurate statements in its prospectus, on its website and in any materials sent directly to a prospective student alongside an offer letter. It is also important that a provider honours any promises made via these channels.

Other important legal requirements mean a provider must give certain minimum information to students before they enter into a contract with the provider.²⁰ The latest CMA guidance includes information about this, including the type of information that needs to be provided. The OfS would expect registered providers to be clear to students in advance about how their course will be delivered, for example the extent to which elements will be delivered online or in person, to avoid giving a misleading impression about what students can expect in practice. The CMA also gives information about this in its updated guidance.²¹

There are legal provisions that require a university or college to be transparent about any additional fees payable to it or its partners before the contract is entered into.²² These might include for example the cost of field trips, equipment, materials, or hiring facilities (such as a music or art studio).²³ Unless there is such transparency, any such charges may not be legally binding or enforceable against a student.

The 2008 regulations on unfair trading also apply to higher education providers. Broadly speaking, these prohibit a provider from engaging in unfair commercial practices in its dealings with students. They also prohibit misleading actions and omissions, and aggressive practices likely to affect students’ decisions. The regulations also include an important list of commercial practices that are automatically deemed unfair. Examples 1, 2 and 3 set out behaviours the OfS considers likely to amount to unfair commercial practices.

Fair terms and conditions

An unfair term in an institution’s contract will not be binding on a student. Universities and colleges should act in good faith when entering into a contract. The Consumer Rights Act sets out that a term in a contract will be unfair if it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer – the student.

There are a number of ‘blacklisted terms’ that the Act automatically deems as unfair if they are present in a contract. The Act also contains an indicative ‘grey list’ of terms that might be considered unfair. While these are not automatically unfair, they may be used to assist a court when considering the application of the fairness test. Whether any particular term is deemed unfair will depend on its specific wording and effect. Examples relevant to higher education include:

• A term that tries to exclude or limit a student’s legal rights where a university or college does not deliver its contractual obligations is likely to be considered unfair.
• A term that purports to enable a university or college to rely on oversubscription as a basis for unilateral decisions to deliver a different course, or to withdraw a course or offer (including before the course starts), is likely to be considered unfair. The OfS takes the view that most of the circumstances likely to lead to oversubscription are likely to be within the control of a university or college, and this raises serious questions about the fairness of such terms. We would therefore expect all offers to be honoured where students meet the terms of their offer, whether or not this would mean the total number of students exceeded the provider’s preferred cohort size.

Unilateral variation of terms

By a unilateral variation of terms, we mean a situation where terms and conditions purport to give a provider the right to unilaterally change elements of the contract (including the level of fees) without the express consent of a student. The OfS would distinguish this from a situation where the terms and conditions of a contract precisely set out in advance (at the time the contract is originally agreed with a student) how and when a contractual change will take effect, for example, a contract clearly stating in advance that a particular optional module for a course will only be available in a particular (specified) academic year, and therefore will not be available in the following academic year.

There are many important issues to consider in respect of whether terms that allow unilateral variations are fair and enforceable. The updated CMA guidance discusses some of these issues, but we would like to draw attention to some in particular.²⁴

First, a provider should ensure that students are properly notified in advance of any proposed unilateral variations, and how they can avoid being affected by the changes (for example, by exiting their contract). However, the difficulties involved in transferring from one institution to another raise important questions about whether it is fair for a provider to make such changes in the first place.²⁵ We think that universities and colleges need to carefully consider the overall fairness of any changes. This includes taking into account any limitations on a student’s ability to transfer to another higher education provider for a similar course when the variation to the contract is made.

Complaints

Consumer protection law, including the principle of ‘professional diligence’, requires providers to ensure that their complaints handling processes are fair.²⁶ Preventing students from exercising their contractual rights, such as by misleading them or making it impossible for them to follow a complaints process, could constitute non-compliance with the consumer protection regulations. Terms and conditions that have the effect of preventing or restricting students from exercising their contractual rights may also amount to unfair contract terms under the Consumer Rights Act.

Examples

What the OfS is doing

This section looks at some of our work on student consumer protection in recent years.

Protecting students’ consumer rights through our regulation

All higher education providers registered with the OfS are subject to a group of ongoing conditions of registration entitled ‘Protecting the interests of all students’. These are collectively referred to as the ‘C’ conditions. The C conditions are primarily designed to work in support of our objectives, rather than as ends in themselves. For example, they protect students when the requirements of our regulation of quality and standards are not being delivered in practice. Conditions C1, C2 and C3 relate specifically to aspects of consumer protection law.³⁰

Our regulatory intelligence tells us where students experience issues related to their consumer rights. For example, prospective students do not always get the information they need from institutions to make an informed decision about what and where to study. It is not always clear what students can expect in terms of teaching and support – including, among other things, course content, structure, the number and type of contact hours they will receive, and the method of assessment. Students are sometimes asked to pay additional costs that they did not know about when they chose the course. The contracts that students enter with their provider can be hard to understand, or contain provisions that appear to be unfair. If things do go wrong, students might find that their provider does not have an adequate complaints process.

The law sets out minimum standards that apply to various aspects of a provider’s dealings with students, including providing information to prospective students, the fairness of contractual terms and conditions, and complaint handling. The CMA guidance is important in this regard and the OfS’s regulatory requirements draw on this.

While the OfS can make judgements about whether a university or college is complying with consumer protection law for the purposes of our regulatory requirements, we cannot determine disputes, or make binding judgments about how the law applies, between a particular student and a provider – only a court can provide a definitive interpretation of the law and how it applies to individual circumstances. This means that we have the remit to raise concerns with a provider about its compliance with consumer protection law, and we may seek to encourage or incentivise compliance in a range of different ways. For example, this could include imposing a specific condition of registration to require a provider to comply with all, or particular aspects of, consumer protection law and taking enforcement action where there is or has been a failure to comply with that condition.

Our approach has depended on the specific circumstances of each case, and these vary significantly. For example, where a university is closing a course or a campus, we may intervene to ensure that students are properly informed of changes within a reasonable timeframe and that they are supported to understand their rights, including the right to complain and escalate issues to the OIA. In other cases, universities have made changes to their terms and conditions and improved protections for students as a result of our intervention. In such cases, we may engage with a provider to achieve improvements without the need for more active regulation.

However, where an individual provider may not be following consumer protection law, we may also decide to refer the case to National Trading Standards or other enforcement bodies. Our general policy aim is to ensure that a provider amends its policies, procedures and terms and conditions to comply with consumer protection law.

We also protect the interests of students as consumers through our work on quality and standards where our B conditions set minimum requirements for the academic experience and the outcomes students should receive from their university or college. We monitor the financial sustainability of providers and seek to protect students in cases where their provider or course closes. We also work closely with other bodies with specific consumer responsibilities.

Learning about concerns

The OfS works with the Office of the Independent Adjudicator, the independent body set up to review student complaints about higher education providers in England and Wales.³¹ The OIA deals with complaints that students have been unable to resolve with their university or college and, where it finds that these are justified, makes recommendations for redress. Learning from this process is shared to improve policy and practices across the higher education sector. In 2022, the OIA received 2,850 complaints, most of them relating to academic appeals or issues with university services (38 per cent each), with smaller proportions relating to finances, disciplinary matters (academic and non-academic), equality law and human rights, welfare issues and fitness to practise. In total, 25 per cent of cases were deemed to be justified, partly justified or settled in favour of the student.³²

At present the OfS has no direct role in dealing with individual complaints or with disputes between students and their university or college.³³ However, students, student representatives, students’ unions and staff members can use our notifications process to tell us about current issues in their university or college that relate to the matters we regulate. We carefully consider all the notifications we receive. Where we think a notification raises concerns that a university or college is not meeting, or is at risk of breaching, our requirements, we may intervene and use our regulatory powers to address the issue. This includes potential concerns about a provider’s compliance with consumer protection law.³⁴

Partnership with National Trading Standards

In November 2022, we announced a new arrangement with National Trading Standards.³⁵ It focuses on three priority areas, with agreement that National Trading Standards will examine each referral it receives from the OfS where a potential breach of consumer protection legislation has been identified. These are:

• Unfair terms and conditions in student contracts, such as misleading precontract information on which students rely when choosing their course.
• Organisations that wrongly claim to be registered with the OfS or to have degree awarding powers or university title.
• Misleading advertising by ‘essay mills’ (organisations that allow students to commit academic fraud by commissioning written work).

We have begun to make referrals to National Trading Standards, including in relation to:

• Terms and conditions that are not clear, intelligible and unambiguous.
• Multiple terms requiring students to pay charges that may be unfair.
• Terms that seek to limit a provider’s liability.
• Terms that, in our view, allow the provider an unreasonably wide discretion to vary course content and structure, or to increase fees during the duration of the course.
• Terms that, in our view, require clarification and detail to help avoid misinterpretation by students.

We intend to publish more information about these cases at an appropriate time, as we think these issues are relevant to all universities and colleges and the contracts they make with students. We consider publication an important tool to help all institutions understand how to comply, and to encourage them to do so.

Impact on students during industrial action

The OfS published a briefing note in November 2022, highlighting the need for universities and colleges to continue to comply with their regulatory and legal obligations when addressing disruption caused by industrial action. It summarised their obligations under consumer protection law and reminded them that all OfS conditions of registration continue to apply during periods of industrial action taken by staff in universities and colleges.

The note communicated our expectation that universities and colleges take all reasonable steps to avoid or limit disruption to students and make up for any teaching time or learning that students lose. We gave the examples of offering full or partial fee refunds, or ensuring that all lost teaching time is made up without detriment to students. The briefing note also made clear that any changes made to examinations or other assessments should avoid disadvantaging students, while also maintaining standards. It set out the importance of universities and colleges communicating regularly and clearly with students about the impact of the disruption and the steps they have taken to mitigate this.³⁶

We have reminded providers affected by the ongoing marking and assessment boycott in June 2023 to ensure that students are not disadvantaged, that they can graduate or progress on time where this is appropriate in academic terms, and that any degree awarded accurately reflects a student’s academic achievement. Where they cannot ensure this is the case, we have said that we expect there to be proactive engagement with the students directly affected to ensure they understand when they will receive assessment outcomes and are informed of the full range of options available to them.

Next steps for the OfS

Over the next year, we intend to develop proposals and consult on an updated approach to protecting the interests of students as consumers. This may involve revisiting our current consumer protection conditions and considering replacing them with more focused requirements.

To this end we will monitor queries and notifications from students, and carry out additional research and polling on student consumer protection issues, to understand students’ concerns and priorities in this area. We will use this intelligence to inform proposals for a revised approach and will consider the extent to which it is appropriate for the OfS, as the independent regulator for higher education in England, to set requirements that go beyond those in consumer protection law.

Conclusion

Universities and colleges have important legal responsibilities to ensure the consumer rights of current and prospective students are protected. These responsibilities include the provision of clear information about courses; transparent and fair terms and conditions in student contracts; and accessible and fair complaint-handling procedures.

The OfS will continue the work set out in this brief to help protect students as consumers, and will be engaging with students, and those who work to support students, to understand their concerns and priorities in this area.

Notes

1. In this brief, for the sake of readability, we may use ‘universities and colleges’, or sometimes simply ‘universities’ or ‘institutions’, to refer to what our regulatory framework and other more formal documents call ‘higher education providers’.
2. CMA, ‘UK higher education providers: Advice on consumer protection law’, 2023, pp3-4.
3. There is a wealth of academic literature on students as consumers and the marketisation of higher education in the UK. Examples of discussion on this topic include Williams, J, ‘Consuming higher education: Why learning can’t be bought’, 2013; Brown, R, ‘The marketisation of higher education: Issues and ironies’ , 2015, published in New Vistas, 1 (1), pp4-9; Palfreyman, D and Tapper, T, ‘Reshaping the university: The rise of the regulated market in higher education’, 2014.
4. Department for Business, Innovation and Skills, ‘Higher education: Students at the heart of the system’, White paper, UK government, 2011.
5. See, for example, Tomlinson, M, ‘Student perceptions of themselves as “consumers” of higher education’, 2017, published in British Journal of Sociology of Education, 38:4, pp450-467.
6. CMA, ‘An effective regulatory framework for higher education: a policy paper’, 2015.
7. CMA, ‘UK higher education providers: Advice on consumer protection law’, 2023.
8. This is not an exhaustive list of organisations working in this area. For more information about the work of these organisations and the other bodies they work with, see their websites (given in endnotes 9 to 16 below).
9. See Competition and Markets Authority.
10. For more about the responsibilities of the CMA see CMA, ‘Our responsibilities’.
11. See Chartered Trading Standards Institute, ‘Looking for consumer help and advice?’. This web page includes a tool to find local trading standards departments.
12. See National Trading Standards.
13. See Chartered Trading Standards Institute.
14. See Office for Students.
15. See Office of the Independent Adjudicator.
16. See Advertising Standards Authority.
17. Consumer Rights Act 2015; The Consumer Protection from Unfair Trading Regulations 2008; The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Note that a bill before Parliament envisages making changes to the 2008 regulations and potentially other areas of consumer protection law.
18. CMA, ‘UK higher education providers: Advice on consumer protection law’, 2023.
19. See section 50 of the Consumer Rights Act 2015.
20. See regulation 6 (3) of The Consumer Protection from Unfair Trading Regulations 2008 and regulation 10 and Schedule 2 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
21. See CMA, ‘UK higher education providers: Advice on consumer protection law’, 2023, p24, pp30-31.
22. See Regulation 40 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
23. See CMA, ‘UK higher education providers: Advice on consumer protection law’, 2023, p24, pp30-31.
24. See CMA, ‘UK higher education providers: Advice on consumer protection law’, 2023, pp38-40.
25. See RWE Vertrieb AG v Verbraucherzentrale Nordrhein-Westfalen eV. In particular, see paragraph 54, which concerns the importance of assessing whether consumers can avoid a contractual variation by terminating the contract and switching service provider:

    ‘[…] it is of fundamental importance […] that the right of termination given to the consumer is not purely formal but can actually be exercised. That would not be the case if, for reasons connected with the method of exercise of the right of termination or the conditions of the market concerned, the consumer has no real possibility of changing supplier […].’

26. The Consumer Protection from Unfair Trading Regulations 2008, regulation 2 states:

    ‘[…] “professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either:

    a. honest market practice in the trader’s field of activity, or

    b. the general principle of good faith in the trader’s field of activity;’

27. See regulation 5 of The Consumer Protection from Unfair Trading Regulations 2008.

28. See paragraphs 5 and 6, Schedule 1 of the Consumer Protection from Unfair Trading Regulations 2008.

29. See regulation 6 of The Consumer Protection from Unfair Trading Regulations 2008.
30. OfS, ‘Securing student success: Regulatory framework for higher education in England’ (OfS 2022.69), November 2022, pp142-150.
31. See Office of the Independent Adjudicator.
32. Office of the Independent Adjudicator for Higher Education, ‘Annual report 2022’.
33. A new complaints scheme, operated by the OfS, will in future consider free speech complaints about universities and colleges or their students’ unions, from students, staff or visiting speakers. See Higher Education (Freedom of Speech) Act 2023.
34. OfS, ‘Notifications’, last updated March 2021.
35. OfS, ‘New OfS-National Trading Standards partnership to protect students’ rights as consumers’, November 2022. See also National Trading Standards.
36. OfS, ‘Briefing note: Disruption to students caused by industrial action’, November 2022.