Rival sanctions? The Office for Students and the Competition and Markets Authority

Preamble: The Higher Education and Research Bill will reach undergo line-by-line examination in the House of Lords on 6th March, when it reaches the Report Stage. This post is the second in a series of opinion pieces by G. R. Evans, reflecting on the Amendments tabled prior to this stage.

Opinion piece

by G. R. Evans

The Competition and Markets Authority (CMA) is a non-ministerial government department which works ‘to promote competition for the benefit of consumers, both within and outside the UK.’ Its stated aim is ‘to make markets work well for consumers, businesses and the economy.’

It has undertaken consultations on the fairness of student contracts with higher education providers. CMA advice for higher education providers on how to comply with consumer protection law  was published in March 2015, with guidance on consumer rights for students.

In a Press Release on 8 February, the Competition and Markets Authority drew attention to a compliance agreement reached with the University of East Anglia, stating:

‘Students will receive a fairer deal at the University of East Anglia (UEA) after the CMA secured changes to the university’s contract terms.’

The Press release explained that changes to modules at UEA had been found to have:

made significant changes to the content of a course – by introducing compulsory modules thus limiting students’ choice of optional modules – and not adequately informing prospective students who had received course offers about the changes.

The University has cooperated fully in amending its practice.

The CMA gives details on its case page of six agreements with universities reached since November. Not all were in England (one was with Glasgow).

There are, however, unanswered questions about how the CMA will work with the new Office for Students. Under the Higher Education and Research Bill the Office for Students will be able to suspend or de-register providers which are found to be in breach of their general or specific ongoing registration conditions, conditions which may be imposed by the OfS itself. It is far from clear whether these conditions will or may include compliance with CMA guidance. Perhaps it should be.

When he was questioned by the Education Select Committee at a Pre-Appointment Hearing on February 21 Sir Michael Barber was asked how he envisaged the OfS working with the CMA when he became the OfS Chair. He admitted he had not yet given the matter much thought.

Universities UK have begun some work on ‘how to ensure that fair terms and conditions are sufficiently flexible to allow courses to evolve’:

In order to understand this issue from the student perspective we are doing some work with the polling company ComRes.

This is not, however, the only area in which the CMA Guidance expresses concerns. Another became the subject of a finding and an adjustment in 2016. An agreement had been reached with UCL :

UCL will ensure that students are not prevented from graduating or re-enrolling because of non-academic debts, following action by the CMA.

A further area of concern to the CMA is the now very common claiming by higher education providers of the intellectual property of students, that is if the terms of the student contract (or the also common) inclusion in its statutes and regulations to which the contract binds the student) of a provision to ‘assign all intellectual property rights (IP) for any of [the student’s] work to the university, regardless of the circumstances’(3.6) .

Might or should the OfS impose sanctions on a provider the CMA found to be non-compliant? It may be wise to think this through before the Higher Education and Research Bill has reached the end of its journey towards royal assent.

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