Universities must plan for upcoming changes to student protection

A new condition, C5, proposed by the Office for Students (OfS) is designed to replace the existing conditions C1 – guidance on consumer law – and C3 – student protection plans – and focuses on promoting fairness in the treatment of students in connection with the provision of higher education generally and ancillary services. This includes, but not limited to, contracts governing the provision of library services, disability support packages, scholarships, accommodation and sports facilities.

The proposals are part of broader efforts by the OfS to reform its registration requirements for higher education providers, with separate consultations having also been launched by the OfS in relation to changes to the registration process and to the initial conditions of registration relating to effective governance.

The new condition C5 will result in consumer protection for students being addressed more directly by the OfS, with reference to its own list of prohibited behaviours. This compares to the current approach, using the Competition and Markets Authority (CMA) to guide the sector in relation to compliance and practice. The OfS has launched a consultation alongside the proposals, with sector stakeholders urged to respond.

Julian Sladdin, higher education expert at Pinsent Masons, said: “The recent Behan review in relation to the future of the OfS indicated that it should focus more on being a more strategic regulator including placing greater emphasis on a number of key priorities such as protecting the interests of students as consumers and the quality of delivery. It appears the latest consultation aligns with these priorities.”

Condition C5 aims to address various aspects of the student experience, including the provision of higher education, ancillary services, and the overall relationship between providers and students. The current requirement under Condition C3 to publish an OfS approved Student Protection Plan will be removed and replaced with an obligation on the provider, once registered, to publish in one place on its website certain student facing policies and documents including a template student contract; policies setting out the circumstances in which the provider may make certain changes to courses including qualifications, modes of study, teaching location and facilities; a refund and compensation policy; and fees information. The new condition applies to the provision of higher education and ancillary services

Rebecca McCall, higher education consumer law expert at Pinsent Masons said: “The changes will materially alter the way institutions articulate their commitments to students and the way they demonstrate compliance with consumer law.  The positive that new condition C5 brings is the OfS sharing its own view of unfair practices, which will help guide providers in their pursuit of compliance.”

If implemented following the consultation, the new condition C5 will take effect when the OfS lifts its current ‘pause’ on new applications for registration this August. The new condition will initially be applied to new registrants only as an interim measure and it is understood that existing institutions will be made subject to the new regime in the future to ensure parity of approach, although no timetable has been proposed as to when this might happen. Areas of coverage will be to ensure students receive clear and accessible information about their course, what will happen if changes need to be made and that there are fair processes for seeking refunds or complaints. 

Sladdin said: “If implemented as currently intended, the changes will, at least in the interim, create a potential disparity between currently registered providers, who will remain subject to the current ongoing conditions; and newly registered higher education providers, and those current providers who change category of registration, which will fall under the new condition C5. It will be important for OfS to avoid a prolonged transitional period as the intention of the OfS to take on many regulatory powers currently undertaken by the CMA or National Trading Standards and also set the OfS’s own categories of prohibited behaviours could result in material differences in the way referrals are treated.”