Universities continue to face Covid-19 consumer law scrutiny

Julian Sladdin and Rami Labib were commenting in light of recent publications by the Competition and Markets Authority (CMA) and The Office of the Independent Adjudicator for Higher Education (OIA), which is the independent student complaints ombudsman service for higher education in England and Wales.

In its report, the CMA restated its views on the application of consumer protection laws to the higher education sector following a request to do so by the Consumer Benefit Forum – a group that brings the CMA together with the Department for Education, Office for Students (OfS) and OIA.

Separately, the OIA published summaries of complaints it has received arising from the impact of Covid-19. It said that most of the near-200 complaints it has received to-date concern the previous academic year, but that it is beginning to see complaints relating to the current academic year that commenced in September.

Labib said: "While nothing the CMA is saying is new, its report, and the OIA's summaries, are a timely reminder to higher education providers that the fact there is a pandemic does not absolve them of their duties under consumer law."

"The OfS previously indicated that it would only take enforcement action against providers where there was 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. However, that guidance was issued in the summer. Society's expectations have now changed as to what organisations are capable of in spite of the challenges posed by Covid-19 restrictions, and so providers can expect the OfS and CMA to take a tougher stance too over the way they affect changes to service delivery and how they communicate those changes," he said.

Sladdin said the OIA's summaries should help higher education providers in managing student complaints arising out of the disruption to teaching and learning caused by the pandemic, and that the approach the body has taken is in line with earlier advice to the higher education that the OfS provided.

"The OIA has accepted that higher education providers faced a significant task in dealing with ‘lockdown’ restrictions and balancing safety of staff and students against need to deliver learning outcomes," Sladdin said. "The OIA’s view is that sector has performed well and no evidence that students were disadvantaged academically due to modifications made to assessments including online delivery."

"Some providers have performed better than others in mitigating disruption. Innovation in remote learning and provision of services online, including access to library and pastoral support, has mitigated disruption in many cases. However, there have been cases where some students have missed a significant element of their teaching and learning as it was simply not delivered. In these cases where the provider has not taken all reasonable steps to mitigate the OIA has recommended compensation is paid," he said.

A theme spanning both the CMA's statement and the OIA summaries is the scrutiny that will be given to terms and conditions in student contracts relating to the ability to make course changes in light of the Covid-19 pandemic and government restrictions, as well as 'force majeure' events.

Sladdin said: "The OIA's view, in line with OfS and CMA, is that such clauses may be enforceable if they meet the requirements of fairness under consumer law. To meet that test they must be narrow in scope, set out how the provider will mitigate the impact of changes, and also give the student the ability to terminate without detriment where obligations are adversely affected by the change. It is clear from the OIA's summaries that providers that seek to avoid liability by relying on clauses that are not reasonable and fair under consumer law, because they are too wide in their scope or do not acknowledge their duty to mitigate disruption or provide any student a corresponding right to terminate in the event of material change or non-delivery of services, could be at risk of being held as non-compliant and liable to pay students compensation."

"However, providers will welcome the suggestion from the OIA that valid grounds for a compliant will not arise simply because a change to provision had to be made and that change was to move to digital delivery rather than face to face. There would need to be evidence of a specific disadvantage being suffered – either academic or loss of learning opportunity or quality. If the provider has taken reasonable steps to mitigate the disruption then the fact that changes to delivery occurred or some elements were deferred would not give rise to a complaint," he said.