A consultation on the regulatory approach of the Office for Students asks about the approach it should take to student contracts. Gill Evans, emeritus professor of medieval theology and intellectual history at the University of Cambridge, looks at how the situation stands at present
The Office for Students (OfS) consultation ending in December 2017 included a question:
- Do you agree or disagree that a student contracts condition should apply to providers in the Approved categories, to address the lack of consistency in providers’ adherence to consumer protection law?
The topic of student contracts is not expressly covered in the Higher Education and Research Act 2017. So what is the situation at the moment?
Contracts already exist
The fact that there is a contractual relationship between a university and its students was accepted in Clark v University of Lincolnshire and Humberside  EWCA Civ 129 (14 April 2000).
Student contracts in written form are in use in many providers already. It is unusual for the student to be given an opportunity to read and take advice before signing or to seek to delete and clause or clauses. The provider tends to treat the signing of the document as a condition of registration.
The provider commonly includes in the contract a requirement that the student will obey the statutes and regulations or other domestic laws of the provider. This frequently includes obligations that would not constitute fair terms if they were expressly included in the contract, such as a requirement for the student to make over his or her intellectual property to the provider.
The Competition and Markets Authority issued guidance on student contracts in 2015 after an investigation of the use of a consumer contract between students and universities undergraduate begun in 2014 following the Office of Fair Trading’s (OFT) call for information (CfI) into higher education in England.
The Competition and Markets Authority’s (CMA) advice informs providers about their consumer law obligations to undergraduate students, including advising them to:
- give students the clear, accurate and timely information that they need so they can make an informed decision about what and where to study
- ensure that their terms and conditions are fair, for example, so they cannot make surprising changes to the course or costs
- ensure that their complaint handling processes are accessible, clear and fair
Prospectuses and keeping promises
Of particular concern have been instances where a provider:
“presents information that suggests that a course provides a particular qualification by a professional body when this is not the case.”
Fair contract terms
The CMA noted with especial disapproval the now very widespread practice of placing in a provider’s domestic legislation a requirement that the student:
“assign all intellectual property rights (IP) for any of your work to the university, regardless of the circumstances”
Complaints procedures for students
Among the points the CMA stresses is that action under the complaints procedure should be timely.
The CMA follow-up to 2016 has included a preliminary compliance review of selected providers. If has found improvements but it urges the need for more.