Higher education providers: OfS coronavirus guide stresses consumer law duties

Students in England pay tuition fees to higher education providers of up to a maximum of £9,250 a year. In recent months, providers have had to make changes to the way they deliver courses to students in response to the coronavirus crisis and related government legislation and guidance. At least some changes look set to last into the next academic session beginning in the autumn. This has spurred debate over whether existing students are eligible for discounts or refunds, and what providers need to do to ensure they meet their consumer law obligations in relation to prospective students set to begin courses in the autumn.

New guidance issued by the OfS seeks to address issues of student and consumer protection during the coronavirus pandemic.

The guide lists a blanket refusal to refunds to current students as an example of behaviour the regulator is "likely to have regulatory concerns with".

Universities and consumer law expert Rami Labib of Pinsent Masons, the law firm behind Out-Law, said that while the new guidance "serves as a timely reminder to the sector of a provider’s consumer protection duties and of the consumer related conditions of registration" it "stops some way short of telling providers whether or not they need to give students discounts or refunds".

Labib said: "This is by no means a surprise as each individual request for a discount or refund will need to be assessed on its own merits and the outcome will be dependent upon several factors, including the terms of the student contract and what the provider has in fact delivered by way of educational services during the pandemic. On that basis, it would have been wrong for the guidance to give specific advice on this issue."

The new OfS guidance was written in consultation with the UK's Competition and Markets Authority (CMA). Labib said the guide contains helpful examples of practices which suggest compliance and non-compliance with consumer protection law. This includes actions the OfS has said providers can take in terms of admissions for the next academic year to make regulatory scrutiny "less likely".

In this regard, the OfS said providers should be upfront about their plans for delivering courses and able to "clearly and properly explain to prospective students the differences in delivery that will apply in different circumstances". Those providers should also outline "how the key components of the course, such as content, delivery, assessment and location, will be delivered in response to changing circumstances and changes in government public health advice and the implications of this". Students should also be told how courses will be delivered if a further lockdown was imposed, and how to expect to be communicated with during the implementation of any necessary changes in delivery.

Labib said providers would welcome the OfS' stated approach to enforcement, outlined in its guidance.

"The guidance provides OfS registered providers with a crumb of comfort in that it confirms that the OfS does not intend to take regulatory action unless there has been a 'significant' disregard for the CMA’s guidance or breach of consumer protection law which is not as a result of actions that were necessary to implement public health advice," Labib said. "This is important as it shows that the OfS acknowledges the unprecedented issues created by Covid-19 and that it would be wrong to take regulatory action where providers are varying the contractual offerings to ensure compliance with government guidance."

"However, this does not mean that providers have free reign to 'do as they wish' as long as they can point to public health advice as the reasoning for their decisions – they will still need to carefully consider their actions with their consumer protection obligations in mind. Just because the OfS has confirmed they will not take action in such circumstances does not mean there has not been a breach of consumer law and that the CMA or students will not do so," he said.