Consumer Protection Law and
the Applicant Experience
SPA Event Wales- Cardiff University, 2 December 2015
Janet Graham, Director of SPA
What is SPA and what do we do?
SPA promotes fair admissions and access to higher education in the
UK by developing and leading on good practice in the recruitment and
selection of students.
 We undertake, evaluate and commission research to support evidence-
based good practice in HE admissions throughout the UK
 SPA has core funding from UCAS and support from HEFCW and is
independent and objective in the work and support it provides
 We are not auditors, regulators, lawyers, a professional body, charity or
membership organisation
 We are a small team providing admissions expertise, advice, resources,
events etc. for you, generally free at the point of use for all UK HE
providers.
The CMA view
The CMA advice for HEPs focused on
compliance with the following consumer
protection legislation:
 Consumer Protection from Unfair Trading
Regulations 2008 (CPR)
 Consumer Contracts (Information,
Cancellation and Additional Charges)
Regulations 2013 (CCR)
 Unfair Terms in Consumer Contracts
Regulations 1999 (UTCCR)
Plus Consumer Rights Act 2015 (from October)
This is existing law
Consumer protection law : Why now?
 Consumer protection law will generally apply to the relationship
between HEPs and undergraduate students.
 Consumer Protection Law has become more important
because
o A greater proportion of HE providers’ funding is coming
directly from students, particularly in England
AND students are in a weak consumer position because
o
For most students deciding what and where to study will be
a ‘one-off’ decision.
 HE providers are ‘traders’ and students are ‘consumers’
for the purposes of the legislation.
The CMA view
 Consumer law sets out minimum standards that apply to
various aspects of an HE provider’s dealings with applicants/
students to help ensure students:
o get the information they need to make informed choices about
what and where to study
o are treated fairly during their studies
o are equipped to resolve problems if things go wrong
 HE providers who do not meet their obligations may be in breach
of consumer law and risk enforcement action
 Students/applicants can take independent legal action
CMA’s enforcement powers
Consumer Protection Regulations (CPRs)
The CPRs cover ‘invitations to purchase’, most of which
relates to what is referred to as ‘THE MATERIAL
INFORMATION’ about the goods or services.
Unfair trading that is prohibited
 advertising goods that don't exist
 omitting material information needed for an informed decision
 providing material information in an obscure or untimely
manner
 aggressive sales tactics
 not following up a commitment to a code of practice.
Consumer Contracts Regulations (CCRs)
The CCRs cover the contract itself, most of which relates to
what is referred to as ‘THE PRE-CONTRACT INFORMATION’.
Information requirements
 a description of the goods or service, including how long any
commitment will last
 the total price of the goods or service
 details of any right to cancel - including a cancellation form
 information about the seller.
Cancelling
 Right to cancel up to 14 days from day you receive your goods.
Unfair Terms Regulations (UTCCRs)
The UTCCRs cover the requirements of fairness in contract
terms.
Requirements
 No significant imbalance in the parties’ rights and obligations to
the detriment of the consumer
 Made in ‘good faith’
 Expressed in plain, intelligible language.
Information - student research and application
 HE providers must give prospective students the ‘material
information’ they need to make an informed decision before
they apply, including:
o
o
o
o
o
course content, structure and how it will be delivered
total course costs (including any extra costs students are likely to incur)
non-course-related information, e.g. accommodation options
any important and surprising rules and regulations
any information that is likely to affect a prospective student’s
decision.
Information - student research and application
 Information must be
o
accurate, complete, clear, unambiguous, up front, timely and
accessible, e.g. website, prospectus, open days.
 This applies whoever provides the information on behalf of the
HEP and whether it is written, visual or spoken
 The person providing it could be paid or unpaid e.g. student
volunteer/ ambassador
 It must be easily accessible before the applicant applies, i.e. not
behind an applicant portal
 HE providers must provide information about how to complain.
Information – examples of breaching obligations
Not providing 'material’ information and/or not providing it at
the right time
 information is difficult to find and access e.g. it is on a website
that is hard to navigate or held in a number of different places
 failing to provide information about extra course costs up front
 failing to make clear that certain modules must be completed for
the award to be accredited
 only making important information available to prospective
students after they have applied
 failing to make prospective students aware at the earliest
opportunity of changes to information contained in a prospectus
The recent ‘Which? Report’
Higher education: Audit of providers’ website information
provision. Which? Investigation report 23 October 2015
 ‘Which?’ looked at a sample of 50 HEPs in September 2015
 76% failed to provide at least one piece of material information
 Report did not receive good press (in HEPs) for its lack of
thoroughness and timing – but the Consumers Association has
the right to do this
 However some emerging best practice and encouraging signs
that HEPs are complying or working towards complying.
Offer
When an applicant accepts an offer of a place they enter a
contract with the HE provider
At this stage HEPs must:
 obtain applicants’ agreement to change anything stated at the
information - student research and application stage
 provide the pre-contract information in a ‘durable medium’
o
o
o
o
o
list core modules of the programme
the duration of the programme/course
state fees & other costs and/or how these will be calculated
how increases will be calculated
specify number and type of contact hours
Continued..
Offer
o
o
Draw attention to your full terms and conditions, make these
accessible and flag particularly important terms
Make clear what could change in the future, if you anticipate
that some things might change, this should be made clear in
the pre-contract information by setting out what could change,
when and how.
 All this to be provided in a ‘durable medium’*
 Give applicants notice of their 14-day right to cancel.
See SPA website: Facts from Eversheds and CMA on consumer protection and
durable medium.
Full and fair terms and conditions
These include your general regulations and other regulatory
documents. They must strike a balance between your rights and
obligations and those of students. For example:
 no wide discretion to vary course content or increase fees
 no limitation on liability for non-performance
 no blanket assignment of intellectual property rights to the




University
no academic sanctions for accommodation debts
easily located and accessed by students and applicants
important or surprising terms highlighted
written in plain and intelligible language.
Terms and Conditions




Terms should be easily located and accessible to prospective
students
Important or surprising terms should be specifically brought to
prospective students attention before they accept an offer
Terms should be written in plain and intelligible language
Terms should strike a fair balance between the rights and
obligations of the provider and student
 they should not allow a wide discretion to change important
aspects of the course or fees
•Providers will not be able to enforce terms and conditions
which are found to be unfair – a disclaimer does not make it fair
Complaint handling
 Provide information about separate complaints procedures for
applicants and current students
 Ensure complaints procedures are fair, easily located, have clear
timescales and are accessible to both applicants and students;
for applicants they must be available before they accept an offer
 Provide clear and accurate information in writing and (where
applicable) verbally. e.g. where a course is in partnership with or
awarded by another HEP be clear where responsibility for
complaints lies
 Complaints procedures are more likely to comply with consumer
law where they follow any guidelines published by a third party
complaint scheme (OIA for students, but doesn’t cover applicants).
Complaint handling
 Ensure that your staff are trained in and follow your complaint
handling procedures and timescales in practice.
See:
 SPA good practice statement on applicant complaints and
appeals, October 2015
 QAA UK Quality Code for Higher Education - Chapter B2:
Recruitment, selection and admission to higher education,
October 2013
Consumer Protection – Risk Analysis
If an HE provider failed to fulfil the terms of a contract and a cohort
of 100 final year undergraduate students sought refunds of their
fees and costs:
Fees for three years: 100 x 3 x £9,000 = £2,700,000
Living costs for 3 x 9 months: 100 x 3 x £10,000 = £3,000,000
Total = £5,700,000
(N.B. This doesn’t include damages for time lost and impact on
future career earnings.)
 Inherent strategic risk: likelihood = likely? impact = moderate?
 Control actions required to reduce likelihood
 For Welsh students – the fee the student has a loan for could be
refunded, what about the government element? (not a consumer
protection issue)
Possible Strategic Controls
Managing Change
 Planning ahead e.g. 5 years for UG core curriculum
(from prospectus to final year delivery = 5 years)
 Planning ahead: courses validated before advertise
 Setting and respecting deadlines for change
 Being aware of what might change and why (is it reasonable)
and communicating it well internally and externally.
Marketing information
 Raising awareness of corporate responsibility for what is said
about your educational services offering
 Web governance – locating and resourcing a central authority
to remove inaccurate information.
Possible New Operational Controls
 Offers to include essential pre-contract information: e.g. modular
content, full statement of fees and charges, contact time etc.
 Reviewing ‘full terms and conditions’ and retaining cohort
versions: e.g. cohort versions of general regulations, date
stamped for start of course
 Providing terms and conditions in ‘durable media’
 Managing expectations of service levels
 Mechanisms to ensure a consistency in approach among your
different departments and faculties as well as the centre.
Possible New Operational Controls
 Being clear about the roles of different marketing channels:
prospectus, course database, departmental web pages
 Cleaning up/ removing old information on the web and ensuring
consistency of information across sources, one version of the truth
 Management of social media: clarifying the distinction between
individual accounts and institutional accounts
 Staff awareness, understanding and following both the CMA
advice and your own internal procedures and practices, as HEPs
are responsible for the actions of their staff, who are acting in the
university’s or college’s name or on its behalf.
What next?
 Each HEP will need to act, you can’t ignore
it: non-compliance could result in
enforcement action by the CMA
 The CMA is conducting a compliance check
and has been since 1 October 2015
 Universities UK are working with the CMA, the Academic
Registrars Council, the Association of University Legal
Practitioners, SPA and others to raise awareness of the issues
 The new Consumer Rights Act in force from 1 October 2015,
makes it easier for authorities to investigate and prosecute.
Consumer Protection Obligations
How do you ensure:
 You give prospective students the clear, accurate and timely
information
 Your terms and conditions are fair, accurate and accessible
 Your complaint handling processes are accessible, clear and
fair?
If you aren’t confident,
If you are confident,
o
o
o
What do you do?
How did you plan/agree it?
How are you reviewing it?
o
o
o
What more could you do?
How can you plan/agree it?
How should you review it?
….
thank you
Risk Points - Identifying and tackling
key areas of risk for institutions arising
from the “new” consumer law
framework
2 December 2015
Kerry Boxall: kerryboxall@eversheds.com
Siân Jones-Davies: sianjones-davies@eversheds.com
Useful references
−CMA: UK higher education providers – advice on
consumer protection law Helping you comply with your
obligations 12 March 2015
−Which?: Higher education: a review of providers’ rights
to change courses 5 February 2015
−Which?: Higher education: audit of providers’ website
information provision October 2015
Introductory remarks
−Fitting the consumer legal framework to the tertiary education
sector
−Students as consumers - pedagogical v legal debate
−Allaying concerns (not a death knell for the sector)
−What’s new (and what isn’t!)
−Focus on areas addressed in the CMA guidance
−Consumer legal framework applies to private providers and
further education colleges, too
The wider student regulatory framework
−Essence of fairness
−Keep in mind also:
• natural justice
• Article 8 ECHR
• Data Protection Act 1998
−A positive student experience
−QAA Quality Code – Part C and cause for concern scheme
−OIA, Welsh Ministers (cf SFA)
Consumer law framework – key legislation
−A changing consumer law framework…
• the Consumer Protection from Unfair Trading Regulations 2008
• the Consumer Contracts Regulations 2013
• the Consumer Rights Act 2015
Key areas of risk (1) – marketing stage
−Material information
−Changes to material information
−Minimum cohort numbers
−Courses subject to accreditation/validation
−Use of disclaimers
Key areas of risk (2) – application stage
−Accessible student terms – summary T&C’s?
−Incorporation of regulations, policies, procedures, etc.
−1 or 2 (or more) contracts (and when made)?
−Suite of contractual documents (incl. prospectus, course specification, offer letter,
T&Cs, etc)
−Schedule 2 information
−What is durable medium?
−Students’ consent to changes
−Conditions of contract
−Managing communications with students
−Use of agents
Key areas of risk (3) – enrolment/registration stage
−A new contract?
−Students’ consent to changes
−Withdrawal or cancellation of courses – liability concerns
Key areas of risk (4) – post enrolment/registration stage
−Variation clauses
−Students’ consent to changes
−Fairness of terms, including:
• liability clauses
• refund policies
• termination provisions
• international students v home students
Concluding remarks
−Raised awareness (and expectations!) – CMA’s review of the
(HE) sector now underway!
−View holistically – how to engage your institution at every level
−A lot of this isn’t new!
−Meet head-on and proactively
eversheds.com
©2015 Eversheds LLP
Eversheds LLP is a limited liability partnership
Kerry, Siân and
Janet
Consumer Protection:
Cardiff University’s response - a case study
Professor Patricia Price, Pro Vice-Chancellor, Student Experience &
Academic Standards, and Simon Wright, Academic Registrar
Tricia and Simon
LUNCH
Group discussion
Reflecting on what you have learnt this morning, working in small
groups, please:
1. Identify at least one issue and a solution
2. Identify at least one area of good practice from around the
table
These could cover
•Material information in a ‘durable’ medium
•T&Cs including ‘surprising’ or ‘unusual’ terms
•Changes to programmes /modules
•HEP staff & student ambassadors – who needs to know what?
….
thank you