Consumer Protection Law and HE
The CMA draft advice for HE 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); and
 Unfair Terms in Consumer Contracts
Regulations 1999 (UTCCR).
This is existing law and is
UK wide
Consumer Protection Law and HE – CMA view
 Most students decisions on what and where to study will be a
‘one-off’ involving the investment of a significant amount of time
and money. Therefore, that decision needs to be properly
informed and right for them.
 Once students have enrolled, if they are dissatisfied with their
experience, it is practically very difficult for them to switch HEPs or
courses.
 So HEPs, in their dealings with students [applicants] must provide
clear, comprehensive and timely information, and ensure their
terms and conditions and complaints processes are fair.
Consumer Protection Law and HE
 HEPs should consider the CMA advice and ensure that they are
complying with the law. If necessary they should make changes to
their practices, policies, rules and regulations.
 Non-compliance with the law could result in enforcement action by
local authority Trading Standards Services (or in NI, the
Department of Enterprise, Trade and Investment), or by the CMA.
 CMA considered the law as it applies to HEPs of undergraduate
courses, it may also be relevant to other types of courses.
 The advice is the view of the CMA, and HEPs should seek their
own legal advice on the law.
CMA Advice for HE: what does it cover?
 Consumer protection law will generally apply to the relationship
between HEPs and undergraduate students.
 HEPs are acting for purposes relating to their trade, business or
profession when providing educational services and will be a
‘trader’ or ‘seller or supplier’ for the purposes of consumer
protection legislation.
 Conversely, undergraduate students will generally be acting for
purposes outside their trade, business or profession, and therefore
will be ‘consumers’ for the purposes of the legislation.
CMA Advice for HE: what does it cover?
It is what CMA consider HE providers need to do to comply with
consumer protection law in relation to the following three issues:
(a) Information provision – the need to provide clear, accurate,
comprehensive and timely information to students.
(b) Terms and conditions – the need for terms and conditions that
apply to students to be fair and balanced. HE providers should not
rely on terms that could disadvantage students.
(c) Complaint handling processes and practices – the need to
ensure that complaint handling processes and practices are
accessible, clear and fair to students.
CMA Advice for HE: Key requirements for HE providers
1. Student research and application stage - to comply with the
CPRs you should:
 provide prospective students with important information –
including about the courses you offer, the structure of courses,
and the fees/costs - before they decide about which courses and
HEP to apply to, and make them easily accessible.
 ensure that you draw students’ attention to your rules and
regulations, and make them easily accessible. [So at this stage
they need to be on your website, outside any applicant portal?]
CMA Advice for HE: Key requirements for HE providers
2. Offer stage - to comply with the CPRs you should:
 ensure that you provide important information to applicants to inform their
choice of which offer(s) to accept. If any important information from your
prospectus etc. has changed, bring this to applicants’ attention. You
should draw applicants’ attention to your full terms and conditions*,
make these accessible and flag particularly important terms.
 Provide students with the necessary pre-contract information before
they accept an offer of a place, e.g. the requirements of the offer, the
main characteristics of the course, the duration of the course, and the total
price and other relevant costs (or how these will be calculated). This
information will become a term of the contract, it will be difficult to change
it subsequently.
*See SPA’s information admissions aspects of terms and conditions on our website
CMA Advice for HE: Key requirements for HE providers
2. Offer stage con’t - to comply with the CPRs you should:
 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.
 Ensure that confirmation of the contract is provided and the
information is provided in a durable medium.
 Remember to give students notice of their 14-day right to cancel.
CMA Advice for HE: Key requirements for HE providers
3. Ensuring that HE providers’ complaint handling processes
and practices are accessible, clear and fair to students - to
comply with the CPRs you should:
 provide students/applicants with information about your
complaints process before they accept an offer of a course.
 ensure that your complaints procedure is easily located and
accessible to students, for example on your website and intranet.
 provide clear and accurate information about your complaint
procedures in writing and (where applicable) verbally e.g.
where a course is in partnership with, or sponsored or awarded by,
another HEP be clear where responsibility for complaints lies;
CMA Advice for HE: Key requirements for HE providers
3. Ensuring that HE providers’ complaint handling processes
and practices are accessible, clear and fair to students con’t  ensure that your complaints handling processes are fair
 ensure that your staff are trained in and follow your complaint
handling procedures in practice.
See:
 QAA UK Quality Code for Higher Education - Chapter B2: Recruitment,
selection and admission to higher education, October 2013 and
 SPAs Good practice statement on Applicant complaints and appeals,
January 2012 SPA will aim to update this staement in light of final CMA
advice
CMA Advice: What do HEPs need to do?
Read and consider the draft advice and the actual advice when published
(early March 2015?) and ensure you are complying with the law in your
dealings with applicants and students. You should:
 consider how this advice applies to your HEP – and review your relevant
practices, policies, rules and regulations for dealing with students;
 if necessary, make changes to your practices, policies, rules and
regulations;
 consider mechanisms to ensure a consistent approach among your
different departments and faculties, e.g. for information provision; and
 ensure that your relevant staff are aware of, understand and follow 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 HEPs
name or on its behalf.
When is a contract a contract?
Under the Consumer Contracts (Information, Cancellation and
Additional Charges) Regulations 2013, the CMAs view is that there
are two contracts:
1. at the offer stage this is normally a distance contract (which
triggers consumer protection regulations including a cancellation
right) this being like an option to “buy” educational services ; and
2. at enrolment this the contract for the educational services. This
second contract might be a distance contract (enrolling via
applicant/student portal off campus), though not if the applicant
enrols in person at the HEP.
CMA, SPA and others believe the two offers is correct, however the
Association of University Legal Practitioners is not so sure and this was
reflected in their response to the consultation.
Confirmation, Clearing and Adjustment – CMA view
 If an applicant fails to meet any specified entry requirements
attached to a conditional offer by an HEP and goes through
clearing to see what other places may be available, the applicant
will effectively go through another research stage and possibly
another offer stage if there are HEP(s) willing to offer places.
 HEPs are subject to the same essential information requirements
and obligations in any dealings with applicants going through
clearing (including those under the CPRs), but because they will
also be under the extra time pressures associated with this
process to make a decision HEPs should be careful not to engage
in practices that could be seen as exploiting this to pressurise
applicants into taking a decision.
Consumer protection and Which?
 Higher education: a review of providers’ rights to change
courses, Which? Investigation report 5 February 2015
 Which sent FOI requests to 142 providers requesting information
about changes they make to courses once students have enrolled,
and received 131 responses back.
 From an analysis by a Which? consumer lawyer, based on the
information provided by universities, they consider that over half
(51%) of HEPs currently use contract terms or other policies that
give them a wide discretion to change courses after enrolment.
 The Which? analysis related only to providers’ terms concerning
changes to courses (inc. changes to fees) after a contract is
formed between the student and the institution.
Consumer protection and Which?
Which? are calling for:
 The CMA to conduct a compliance check against their new
guidance at the earliest possible opportunity, and ideally in time to
ensure that the next cohort of students are not exposed to unfair
terms and poor practice.
 HEPs to address unfair terms as a matter of urgency to ensure
that they are, at least, complying with the law. They should
immediately ensure that they are not relying in practice on any
unfair terms.
 The HE sector to come together to consider the potential for a
standard format for student contracts to help ensure that terms
are provided in a consumer-friendly format
Consumer protection and HE compliance – what next?
 Universities UK talking with CMA the Association of Heads of
University Administration (AHUA) and ARC as well as Association
of University Legal Practitioners (AULP), SPA and UCAS.
 UUK series of workshops on the implications of the CMA advice
and HEP compliance to be arranged
 CMA Advice for HE to be issued early March 2015 – timescales for
implementation currently unknown
 Role of QAA and HE regulators in UK – discussions with CMA, but
HEFCE for example has Student protection as one of its four key
priorities. Students includes prospective students/ applicants
 Consumer Rights Act - late 2015
 Higher Education Act 2016??