Audit can help universities meet OfS consumer law demands

Julian Sladdin and Rami Labib of Pinsent Masons, the law firm behind Out-Law, were commenting after the Office for Students (OfS) wrote to institutions asking them to undertake a review of their compliance with consumer law and to assure the OfS of their ongoing compliance with the guidance the regulator has produced on consumer protection law. 

Sladdin said: "The latest communication from the OfS is a reminder to institutions that their obligations, under their terms of registration, to comply with consumer law, remain unchanged despite the pandemic. What is different is the requirement that universities not only take practical steps to ensure quality and accessibility of delivery to students during the pandemic, but also carry out an audit of their student facing pandemic strategies and inform the OfS of any perceived compliance risks and any remedial action taken."

"Although, this additional regulatory requirement is likely to create an additional and possibly unwelcome burden on already stretched student compliance and complaints teams, there are important benefits for providers in undertaking a consumer compliance audit. In particular, from a risk management perspective, the evidence of regular reviews of student terms and complaints is likely to assist in early mitigation of possible claims, and from a regulatory perspective provide hard evidence of steps taken to ensure compliance," he said.

In her letter issued last month, Susan Lapworth, director of regulation at the OfS, said that, within their review, institutions should "re-test" whether they were "sufficiently clear with new and continuing students about how teaching and assessment would be delivered in 2020-21, the circumstances in which changes might be made, and what those changes might entail". She said some students had told the OfS that "they were not clear about what had been promised, or that what was promised has not been delivered in practice".

The review should also "assess whether students received, during the autumn term, the teaching and assessment they were promised and might reasonably have expected to receive based on the information provided" and whether their "current plans for the spring and summer terms would ensure that students received the teaching and assessment they were promised and might reasonably expect to receive based on the information provided", Lapworth said.

According to Lapworth's letter, the review should be carried out "during the first half of the spring term".

While the OfS does not expect institutions to "proactively report" the results of their reviews to it, Lapworth said the regulator would expect institutions to inform it "of the risks identified and whether or not you are taking remedial action" in the event that the review "identifies potential compliance risks".

Labib said: "We recognise the strain and burden undertaking an audit in the fashion described by the OfS is likely to place on the sector. We believe that an independent third party view of a provider’s compliance can help relieve that burden and add credibility to a provider’s assertion that they take compliance seriously."

Late last year, Labib and Sladdin said that higher education providers can expect regulators and complaints bodies to demand more of them in the way they mitigate the impact of coronavirus-related disruption to student learning the longer the pandemic lasts following publications issued at the time by the UK's Competition and Markets Authority (CMA) and The Office of the Independent Adjudicator for Higher Education (OIA).